HIGHER EDUCATION FUNDING ACT 1988

CHAPTER 1 - INTRODUCTORY  

SECTION 1   1   SHORT TITLE  
This Act may be cited as the Higher Education Funding Act 1988.

SECTION 2   COMMENCEMENT  

2(1)  
Chapters 1, 2, 3, 4, 6 and 7 commence on the day on which this Act receives the Royal Assent.

SECTION 2A   2A   OBJECTS OF ACT  
The objects of this Act are:


(a) to support a higher education system that:


(i) is characterised by quality, diversity and equity of access; and

(ii) contributes to the development of cultural and intellectual life in Australia; and

(iii) is appropriate to meet Australia's social and economic needs for a more highly educated and skilled population; and


(b) to strengthen Australia's knowledge base and enhance the contribution of Australia's research capabilities to national economic development and international competitiveness and the attainment of social goals.

SECTION 2B   2B   APPLICATION  


(Repealed by No 150 of 2003)

SECTION 3   3   DEFINITIONS  


In this Act, unless the contrary intention appears:

Aboriginal
means a member of the Aboriginal race of Australia, and includes a descendant of the indigenous inhabitants of the Torres Strait Islands.

approved form
means a form approved by the Minister.

building project
means any of the following:


(a) the purchase of land with or without buildings;


(b) the designing, erection or extension of a building or other facilities;


(c) the development or preparation of land for building or other purposes;


(d) the installation of water, electricity or other services;

and includes:


(e) in the case of the erection or extension of a building - the provision of furnishings or equipment for the building, or for the extensions of the building, as the case may be; and


(f) a renovation project.

capital expenditure
means expenditure on a capital project.

capital project
means a building project (other than a minor building project), or a non-building capital project.

co-operative multimedia centre
means a body corporate established, ordinarily by a consortium of persons or organisations with interests that relate to the multimedia industry, for purposes that include:


(a) arranging for, or providing services relating to, education and training; and


(b) undertaking other activities; and


(c) research and development;

that will assist in the development of that industry.

course of study
, in relation to an institution, means a course the completion of which leads to the granting of a degree, diploma, associate diploma or other award of the institution and includes a course of instruction provided by the institution for the purpose of enabling persons to undertake a course of study provided by the institution or by another institution but does not include a course of vocational education and training.

course of vocational education and training
means a course that is identified as a course of vocational education and training in accordance with guidelines issued by the Minister for the purposes of this definition.

educational profile
means an educational profile referred to in section 14.

electronic communication
has the meaning given by the Electronic Transactions Act 1999.

fees
, in relation to an institution, means tuition, examination or other fees payable to the institution by a student enrolled at, or applying for enrolment at, the institution in connection with a course of study or attendance at the institution, and includes fees payable to the institution in respect of the granting of a degree, diploma, associate diploma or other award but does not include:


(a) fees the payment of which is voluntary;


(b) fees payable in respect of an organisation of students, or of students and other persons, or in respect of the provision to students of amenities or services that are not of an academic nature;


(c) fees payable in respect of residential accommodation;


(d) fees imposed in accordance with guidelines issued by the Minister for the imposition of fees in respect of overseas students and students who are New Zealand citizens because of the operation of section 29 of the Citizenship Act 1977 of New Zealand;


(e) fees payable in respect of studies (other than a course of instruction provided by the institution for the purpose of enabling persons to undertake a course of study provided by the institution) that are not required or permitted to be undertaken for the purpose of obtaining a degree, diploma, associate diploma or other award of the institution;


(f) fees payable, in accordance with guidelines issued by the Minister, by persons who attend or otherwise participate in courses of study but do not enrol for those courses, other than persons whose attendance at, or participation in, those courses is, or is to be, credited towards a degree, diploma, associate diploma or other award of another institution by arrangement between the institutions concerned;


(g) fees of a kind that are incidental to studies that may be undertaken at institutions and that the Minister has notified each institution to be fees of a kind to which this paragraph applies; or


(h) contributions payable under Chapter 4.

information system
has the meaning given by the Electronic Transactions Act 1999.

institution
, except in Chapters 4 and 5B, has the meaning given by section 4.

instrument
, in relation to the Minister, means a determination, specification, approval, declaration, direction, requirement, guideline or notification made, issued or given by the Minister under, or for the purposes of, this Act.

limited operating purposes
, in relation to an institution, means:


(a) the general teaching purposes of the institution in connection with courses of study provided by or at the institution, including preparatory work in connection with proposed courses of study to be provided by or at the institution;


(b) the purchase of equipment for the institution for purposes referred to in paragraph (a); and


(c) minor building projects of the institution for purposes referred to in paragraph (a).

minor building project
, in relation to an institution, means a building project of the institution that is determined by the institution to be a minor building project.

multimedia industry
means the industry concerned with all aspects of the presentation of information through a single format by making co-ordinated use of a range of different means of communication.

non-building capital project
, in relation to an institution, means a project that satisfies the criteria set out in guidelines issued by the Minister under section 26.

open learning organisation
means a body corporate established by one or more institutions for the purposes of providing access, by clients of the organisation to tertiary education courses, or units of study, for which particular institutions or other tertiary education providers undertake to grant credit towards accredited tertiary awards.

operating purposes
, in relation to an institution, means:


(a) the general teaching purposes of the institution in connection with courses of study provided by or at the institution, including preparatory work in connection with proposed courses of study to be provided by or at the institution;


(b) the general research purposes of the institution;


(c) the provision by the institution of courses of continuing education;


(ca) capital project of the institution for purposes referred to in paragraph (a), (b) or (c);


(d) the purchase of equipment for the institution for purposes referred to in paragraph (a), (b) or (c); and


(e) minor building projects of the institution for purposes referred to in paragraph (a), (b) or (c).

overseas student
means a person who:


(a) is not an Australian citizen; and


(b) is enrolled, or proposes to become enrolled, in a course of study of an institution;

but does not include:


(c) a person entitled to stay in Australia, or to enter and stay in Australia, without any limitation as to time; or


(d) a New Zealand citizen; or


(e) a diplomatic or consular representative of New Zealand, a member of the staff of such a representative or the spouse or dependent relative of such a representative.

permanent resident
has the same meaning as in the Australian Citizenship Act 2007.

permanent visa
has the same meaning as in the Migration Act 1958.

previous Assistance Act
means the States Grants (Tertiary Education Assistance) Act 1987.

qualified accountant
means:


(a) a person registered as a company auditor or a public accountant under a law in force in a State or Territory;


(b) a member of the Institute of Chartered Accountants in Australia or of the Australian Society of Certified Practising Accountants; or


(c) a person approved by the Minister as a qualified accountant for the purposes of this Act.

qualified auditor
means:


(a) the Auditor-General of a State; or


(b) a qualified accountant.

renovation project
means either of the following:


(a) the renovation or alteration of a building or other facilities, including the provision of furnishings or equipment for the renovated or altered parts of the building or other facilities;


(b) the installation of water, electricity or other services.

Secretary
means the Secretary of the Department.

State
includes the Australian Capital Territory and the Northern Territory.

teaching hospital
, in relation to an institution, includes a hospital in which students enrolled in the Faculty of Medicine, or School of Medicine, of the institution receive clinical instruction.

this Act
does not include Chapter 7.

year
means a calendar year.

year to which this Chapter applies
means:


(a) in Chapter 4 - the year 1989 or any subsequent year up to and including the year 2004; or


(aa) in Chapter 4A - the year 2002 or any subsequent year up to and including the year 2004; or


(ab) in Chapter 5 - the year 1994 or any subsequent year up to and including the year 2004; or


(b) otherwise - the year 1989 or any subsequent year up to and including the year 2004.

SECTION 4   INSTITUTIONS  

4(1)  


Subject to this section, in this Act, unless the contrary intention appears:

institution
means any of the institutions of higher education specified in the following tables:


Table A
Australian Catholic University
Charles Sturt University
Southern Cross University
Macquarie University
The University of New England
The University of New South Wales
The University of Newcastle
The University of Sydney
University of Technology, Sydney
University of Western Sydney
University of Wollongong
Deakin University
La Trobe University
Monash University
Royal Melbourne Institute of Technology
Swinburne University of Technology
The University of Melbourne
University of Ballarat
Victoria University of Technology
Central Queensland University
Griffith University
James Cook University
Queensland University of Technology
The University of Queensland
University of Southern Queensland
University of the Sunshine Coast
Curtin University of Technology
Edith Cowan University
Murdoch University
The University of Western Australia
The Flinders University of South Australia
The University of Adelaide
University of South Australia
University of Tasmania
Batchelor Institute of Indigenous Tertiary Education
Northern Territory University
Australian Maritime College
The Australian National University
University of Canberra
The University of Notre Dame Australia


Table B
Avondale College

4(2)  
The Minister may declare that a Table in subsection (1) is amended in the manner specified in the declaration and, where such a declaration is made, the declaration has effect accordingly.

4(3)  
For the purposes of section 8 of the Acts Interpretation Act 1901, a declaration under subsection (2) that amends a Table in subsection (1) by way of repealing part of that Table shall be taken to be an Act that repeals that part of that Table.

SECTION 5   5   REFERENCES TO PAYMENTS AND ACTS  
For the purposes of this Act:


(a) the Minister is to be taken to have paid money to an institution that is not a body corporate if he or she has paid money to the body administering the institution; and


(b) an institution that is not a body corporate shall be taken to have done any act or thing that is required or permitted by this Act to be done if the body administering the institution has done that act or thing.

SECTION 6   6   PROPOSED INSTITUTIONS  
Where:


(a) a State proposes to establish an institution;


(b) the name of the proposed institution is referred to in an instrument signed by the Minister; and


(c) an institution under that name has not been established or a body has not been established to administer the proposed institution;

then, for the purposes of this Act:


(d) an institution under that name shall be taken to be in existence;


(e) the Minister is taken to have paid money to the institution if he or she has paid the money to a person or body determined by the Minister to be the appropriate authority in relation to the institution for the purposes of this Act; and


(f) the institution shall be taken to have done any act or thing that is required or permitted by this Act to be done if the appropriate authority in relation to the institution has done that act or thing.

SECTION 7   7   PROVISION FOR SUPERANNUATION, LONG SERVICE LEAVE OR WORKERS' COMPENSATION  
Where, for operating purposes or for limited operating purposes, an institution which has yet to adopt full accrual accounting principles makes provision, not inconsistent with actuarial principles, in the accounts (including the journals and ledgers) of the institution for future or contingent liabilities in respect of superannuation payments, long service leave or workers' compensation, the institution shall be taken, for the purposes of this Act, to have spent the amount of that provision for operating purposes or for limited operating purposes, as the case requires, in respect of the year in which that provision is made.

SECTION 8   8   SPECIAL FUND FOR TABLE A INSTITUTIONS  
If:


(a) an institution specified in Table A in subsection 4(1) transfers an amount of money into a special fund in the institution's accounts; and


(b) the money in the fund is to be used only for future expenditure on the following items:


(i) capital projects of the institution;

(ii) equipment of the institution;

(iii) minor building projects of the institution;

the institution is to be taken, for the purposes of this Act, to have spent the amount for operating purposes in respect of the year in which the amount was transferred.

SECTION 9   MAKING AND VARIATION OF DETERMINATIONS ETC.  

9(1)  
Any determination, specification, approval, declaration, direction, requirement, guideline or notification made, issued or given by the Minister under, or for the purposes of, this Act must be made, issued or given in writing.

9(1A)  
The issue of a guideline must be notified in the Gazette.

9(1B)  
The notification must set out the address of the place from which copies of the guideline may be obtained.

9(2)  
Where a matter specified in an instrument signed by the Minister has been varied by another such instrument, a reference in this Act to that matter is a reference to that matter as so varied.

SECTION 10   10   REFERENCES TO THE AUSTRALIAN CAPITAL TERRITORY AND THE NORTHERN TERRITORY  
The express references in this Act to the Australian Capital Territory or the Northern Territory do not imply that references in this Act to a State do not include references to that Territory.

SECTION 11   11   APPLICATION OF THE CRIMINAL CODE  


Chapter 2 of the Criminal Code applies to all offences of this Act.
Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

CHAPTER 2 - GRANTS FOR HIGHER EDUCATION ASSISTANCE  

PART 2.1 - PRELIMINARY  

SECTION 12   12   INSTITUTIONS TO WHICH PROVISIONS APPLY  
The Minister may specify the institutions to which the several provisions of this Chapter respectively apply.

SECTION 13   UNDERGRADUATE AND POST-GRADUATE FEES  

13(1)  
The Minister may issue guidelines in relation to the provision by institutions of undergraduate or post-graduate courses for which fees may be charged.

13(2)  
A person undertaking a course provided in accordance with guidelines issued under subsection (1) may be charged fees in respect of the undertaking of that course.

13(3)  
Guidelines issued under subsection (1) must ensure that, on an equivalent full-time student unit basis, the number of domestic students who may be charged fees for a particular undergraduate course does not exceed 25% of the total number of places available for domestic students in that course.

13(4)  
Guidelines issued under subsection (1) must:


(a) require an institution not to charge a domestic student any fees for any undergraduate course in a year unless the institution meets the undergraduate target that applies for the purpose of calculating grants to the institution under section 15 or 16 for that year; and


(b) specify the amount that is applicable for the purposes of section 108 in respect of a breach of the requirement referred to in paragraph (a) of this subsection.

13(5)  
In this section, domestic student means a student who is not an overseas student.

SECTION 14   EDUCATIONAL PROFILES  

14(1)  
Each institution shall provide to the Minister an educational profile in an approved form describing activities of the institution and may from time to time provide to the Minister variations of that profile.

14(2)  
An institution that has provided to the Minister an educational profile under this section may at any time provide to the Minister a new educational profile in an approved form in substitution for the previous educational profile or for the previous educational profile as varied, as the case may be.

14(3)  
The approved form of an educational profile to be submitted by an institution under this section shall be determined by the Minister after consultation with the institution.

PART 2.2 - OPERATING AND OTHER GRANTS  

SECTION 15   15   GRANTS FOR EXPENDITURE FOR OPERATING PURPOSES  
There is payable to an institution to which this section applies specified in Table A in subsection 4(1), for the purpose of financial assistance in relation to the expenditure of the institution for operating purposes in respect of a year to which this Chapter applies, such amount as the Minister determines having regard to the educational profile of the institution.

SECTION 16   16   GRANTS FOR EXPENDITURE FOR LIMITED OPERATING PURPOSES  
There is payable to an institution to which this section applies specified in Table B in subsection 4(1), for the purpose of financial assistance in relation to the expenditure of the institution for limited operating purposes in respect of a year to which this Chapter applies, such amount as the Minister determines having regard to the educational profile (if any) of the institution.

SECTION 17   17   MAXIMUM GRANTS  
The total of the amounts that are payable under sections 15 and 16 in respect of a year shall not exceed:


(a) in the case of the year 1989 - $2,213,382,000;


(b) in the case of the year 1990 - $2,441,844,000;


(c) in the case of the year 1991 - $2,599,025,000;


(d) in the case of the year 1992 - $2,733,557,000; and


(e) in the case of the year 1993 - $2,943,153,000; and


(f) in the case of the year 1994 - $3,520,163,000; and


(g) in the case of the year 1995 - $3,652,019,000; and


(h) in the case of the year 1996 - $3,803,406,000; and


(i) in the case of the year 1997 - $3,855,623,000; and


(j) in the case of the year 1998 - $3,857,921,000; and


(k) in the case of the year 1999 - $3,459,627,000; and


(l) in the case of the year 2000 - $3,425,879,000; and


(m) in the case of the year 2001 - $2,756,161,000; and


(n) in the case of the year 2002 - $2,847,634,000; and


(o) in the case of the year 2003 - $2,904,491,000; and


(p) in the case of the year 2004 - $3,010,199,000.

SECTION 18   CONDITIONS OF GRANTS  

18(1)  
Financial assistance is granted to an institution under section 15 or 16 in respect of a year on the conditions that:


(b) the institution will spend each amount of financial assistance received by it only in accordance with the educational profile of the institution provided to the Minister as at the time of the making of the determination under section 15 or 16 that resulted in the payment; and


(c) the sum of the amounts spent by the institution for operating purposes or for limited operating purposes, as the case may be, in respect of that year is not less than the sum of the following amounts:


(i) the amount determined by the Minister under the section concerned in relation to the institution in respect of that year;

(ii) any amounts paid to the institution by students under subparagraph 41(1)(a)(i), paragraph 41(1A)(a) or 56(b) in that year less any amounts paid to students by the institution under paragraph 56(a) in that year;

(iii) any amounts paid to the institution by the Commonwealth under subsection 57(2) or (3) in that year; and


(d) subject to subsection (2), the institution does not charge any student fees in respect of that year or a part of that year except as provided by section 13; and


(e) (Repealed by No 86 of 2001)


(f) (Repealed by No 78 of 2002)


(g) the institution gives to the Minister, not later than such date as the Minister specifies, such statistical and other information as the Minister requires from the institution in respect of the provision of higher education by the institution during that year.

18(2)  
Paragraph (1)(d) does not apply in relation to:


(a) (Repealed by No 150 of 2003)


(aa) The University of Notre Dame Australia; or


(b) a course of study at Avondale College that is not funded in whole or in part by the Commonwealth.

18(3)  
(Repealed by No 111 of 2009)

18(4)  
(Repealed by No 111 of 2009)

SECTION 19   GRANTS FOR RESTRUCTURING AND RATIONALISATION PROGRAMS  

19(1)  
The Minister may determine, in respect of a year, an amount of financial assistance for an institution to which section 15 applies if the Minister is satisfied that the assistance will contribute towards restructuring and rationalising activities of the institution.

19(2)  
The Minister may make a determination under subsection (1) subject to conditions.

19(3)  
If the Minister determines an amount of financial assistance for an institution in respect of a year under subsection (1), the amount payable under section 15 to the institution in respect of the year is to be increased, from 1 January in that year, by the amount of the determination.

19(4)  
A determination under subsection (1) must be made in accordance with guidelines issued by the Minister.

SECTION 20   GRANTS FOR SUPERANNUATION EXPENSES  

20(1)  
The Minister may determine, for the purposes of this section, that expenditure of a specified kind by institutions to which this section applies, being expenditure in relation to the provision of superannuation benefits for staff of such institutions whose salaries are funded from grants provided under this Act for operating purposes or limited operating purposes, is to be relevant superannuation expenditure.

20(2)  
Where the Minister is satisfied that an institution has incurred, or will incur, relevant superannuation expenditure, the Minister may determine an amount of additional financial assistance payable to the institution in respect of a year to which this Chapter applies, and, subject to subsection (3), as from 1 January in that year, the amount determined under section 15 or 16, as the case requires, in relation to the institution in respect of that year shall be taken to be increased by the first-mentioned amount.

20(3)  
The total of the amounts determined under subsection (2) in respect of a year shall not exceed:


(a) in the case of the year 1989 - $108,829,000;


(b) in the case of the year 1990 - $104,931,000;


(c) in the case of the year 1991 - $40,979,000;


(d) in the case of the year 1992 - $53,191,000; and


(e) in the case of the year 1993 - $54,065,000; and


(f) in the case of the year 1994 - $78,613,000; and


(g) in the case of the year 1995 - $69,037,000; and


(h) in the case of the year 1996 - $102,027,000; and


(i) in the case of the year 1997 - $102,027,000; and


(j) in the case of the year 1998 - $108,673,000; and


(k) in the case of the year 1999 - $112,664,000; and


(l) in the case of the year 2000 - $118,297,000; and


(m) in the case of the year 2001 - $100,000,000; and


(n) in the case of the year 2002 - $112,793,000; and


(o) in the case of the year 2003 - $121,497,000; and


(p) in the case of the year 2004 - $124,340,000.

SECTION 20B   GRANT TO MARCUS OLDHAM COLLEGE  

20B(1)  
There is payable to Marcus Oldham College, in respect of the year 2004, such amount as the Minister determines.

20B(2)  
The amount payable under this section must not exceed $2,095,000.

FORMER SECTION 20B   20B    


(Repealed by No 74 of 1996.)

SECTION 21   PROPOSALS AND GRANTS FOR PROJECTS OF NATIONAL PRIORITY ETC.  

21(1)  
The Minister may approve a proposal for expenditure as a proposal deserving financial assistance under this section in respect of a year to which this Chapter applies if:


(a) the proposal is for expenditure by an institution to which this section applies or by another incorporated body; and


(b) the proposal is for expenditure:


(i) upon a project relating to a matter of national priority in higher education; or

(ii) that will be used to maintain or enhance innovation in, or the quality of, higher education provided by an institution.

21(2)  
The Minister may give approval under subsection (1), subject to such conditions as he or she determines.

21(3)  
If the Minister approves a proposal under subsection (1) in respect of a year, then, subject to section 23C:


(a) the Minister must determine an amount as the estimated total expenditure on the proposal for the year; and


(b) the Minister must determine an amount of approved expenditure in relation to the proposal for the year; and


(c) the amount of approved expenditure on the proposal for the year must not be greater than the amount of estimated total expenditure on the proposal for the year.

21(4)  
If the Minister determines an amount in relation to a proposal for expenditure by an institution in respect of a year, the amount specified in a determination under section 15 or 16, as the case requires, in relation to the institution in respect of that year is taken to be increased by the amount of the approved expenditure.

21(5)  
If the Minister determines an amount in relation to a proposal for expenditure by a body other than an institution in respect of a year, there is payable to the body in connection with the proposal in respect of that year an amount equal to the amount determined by the Minister.

SECTION 22   PROMOTION OF EQUALITY OF OPPORTUNITY  

22(1)  
In this section:

equal opportunity project
means a project designed to promote equality of opportunity in respect of higher education.

22(2)  
The Minister may approve a proposal for expenditure by an institution to which this section applies on an equal opportunity project as a proposal deserving financial assistance under this section in respect of a year to which this Chapter applies subject to such conditions as the Minister determines.

22(3)  
Where the Minister approves a proposal for expenditure by an institution in respect of a year, the Minister is (subject to section 23C) to determine an amount, not exceeding the estimated expenditure on the proposal in that year, as the amount of the approved expenditure in relation to the proposal and as from 1 January in that year, the amount specified in a determination under section 15 or 16, as the case requires, in relation to the institution in respect of that year is to be taken to be increased by the amount of the approved expenditure.

SECTION 23   SPECIAL RESEARCH ASSISTANCE  

23(1)  
The Minister may, subject to such conditions as the Minister determines, approve a proposal, whether by an institution or otherwise, for expenditure by an institution to which this section applies on:


(a) a research program; or


(b) a program that supports:


(i) research training; or

(ii) the conduct of research programs;

as a proposal deserving financial assistance under this section in respect of a year to which this Chapter applies.

23(1A)  
The Minister may approve a proposal for expenditure by a body, other than an institution, on:


(a) a research program; or


(b) a program that supports:


(i) research training; or

(ii) the conduct of research programs;

to be undertaken by the body as a proposal deserving financial assistance under this section in respect of a year to which this Chapter applies subject to such conditions as the Minister determines.

23(1B)  
A proposal for expenditure by an institution or body cannot be approved under subsection (1) or (1A) in relation to the year starting on 1 January 2001 or a later year unless:


(a) there is an approved research and research training management plan for the institution or body and the year (see subsection (1C)); and


(b) the institution or body is an accredited higher education institution or body (see subsection (1D)); and


(c) the institution or body is listed in Schedule 1.

23(1C)  
For the purposes of paragraph (1B)(a), there is an approved research and research training management plan for an institution or body and a year if (and only if):


(a) the institution or body has, in writing, submitted a plan to the Minister that covers the year; and


(b) the Minister has, in writing, declared that he or she is satisfied that the plan meets the requirements in force under subsection (1E).

23(1D)  
For the purposes of paragraph (1B)(b), an institution or body is an accredited higher education institution or body if (and only if) the institution or body is included as a higher education institution on both of the following registers (as in force when the relevant expenditure proposal is being considered by the Minister):


(a) the Australian Qualifications Framework Register of Authorities empowered by Government to Accredit Post-Compulsory Education and Training Courses;


(b) the Australian Qualifications Framework Register of Bodies with Authority to Issue Qualifications.

23(1E)  
The Minister may, by instrument in writing, determine requirements to be satisfied for a plan to be approved under paragraph (1C)(b).

Note:

A determination under this subsection is a legislative instrument - see paragraph 110(b).

23(2)  
If the Minister approves a proposal under subsection (1) or (1A) in respect of a year, then, subject to section 23C:


(a) the Minister must determine an amount as the estimated total expenditure on the proposal for the year; and


(b) the Minister must determine an amount of approved expenditure in relation to the proposal for the year; and


(c) the amount of approved expenditure on the proposal for the year must not be greater than the amount of estimated total expenditure on the proposal for the year.

23(3)  
There is payable to an institution or another body to which an approved proposal relates, for the purpose of financial assistance in respect of expenditure incurred or to be incurred by the institution or other body in connection with the approved proposal in respect of the year to which the proposal relates, an amount equal to the amount of the approved expenditure in relation to the proposal.

23(5)  


Financial assistance is granted to an institution or another body under subsection (3) in relation to an approved proposal of the institution or body in respect of a year on the condition that:


(a) the sum of the amounts spent by the institution or other body in connection with the proposal in respect of that year, being amounts spent before the end of that year or spent after that year in respect of commitments entered into before the end of that year;

is not less than:


(b) the sum of the amounts of financial assistance paid to the institution or body under this section in relation to the proposal.

SECTION 24   GRANTS IN RESPECT OF TEACHING HOSPITALS  

24(1)  
In this section:

appropriate costs
, in relation to a teaching hospital of an institution, means:


(a) expenditure (other than expenditure on building projects) incurred by the hospital in relation to:


(i) parts of the hospital used exclusively by students enrolled in the Faculty of Medicine, or School of Medicine, of the institution, by students enrolled in the Faculty of Medicine, or School of Medicine, of any other institution in relation to which that hospital is a teaching hospital and by their teachers; and

(ii) facilities and equipment so used in connection with those parts of the hospital; and


(b) expenditure incurred in the purchase of books and periodicals for the medical library of the hospital.

24(2)  
Subject to subsection (3), there is payable to an institution to which this section applies, for the purpose of financial assistance in respect of contributions by the institution towards the appropriate costs, in respect of a year to which this Chapter applies, of the teaching hospital or teaching hospitals of the institution, such amount as the Minister determines.

24(3)  
The total of the amounts determined under subsection (2) in respect of a year shall not exceed:


(a) in the case of the year 1989 - $3,815,000;


(b) in the case of the year 1990 - $4,029,000;


(c) in the case of the year 1991 - $4,258,000;


(d) in the case of the year 1992 - $4,421,000; and


(e) in the case of the year 1993 - $4,494,000; and


(f) in the case of the year 1994 - $4,592,000; and


(g) in the case of the year 1995 - $4,647,000; and


(h) in the case of the year 1996 - $4,738,000; and


(i) in the case of the year 1997 - $4,819,000; and


(j) in the case of the year 1998 - $4,896,000; and


(k) in the case of the year 1999 - $4,972,000; and


(l) in the case of the year 2000 - $5,058,000; and


(m) in the case of the year 2001 - $5,168,000; and


(n) in the case of the year 2002 - $5,287,000; and


(o) in the case of the year 2003 - $5,412,000; and


(p) in the case of the year 2004 - $5,539,000.

24(4)  


Financial assistance is granted to an institution under subsection (2) in respect of a year on the condition that:


(a) the sum of the amounts spent by the institution in making contributions towards the appropriate costs, in respect of that year, of the teaching hospital or teaching hospitals of the institution;

is not less than:


(b) the sum of the amounts of financial assistance paid to the institution under subsection (2) in relation to the institution in respect of that year.

SECTION 25   GRANTS IN RESPECT OF DRUG AND ALCOHOL EDUCATION IN TEACHING HOSPITALS  

25(1)  
There is payable to an institution to which this section applies, for the purpose of financial assistance in relation to the review of, and research in connection with, the undergraduate medical curriculum of the institution in so far as it is concerned with matters relating to the abuse of alcohol and drugs, in respect of the year 1989 or the year 1990, such amount as the Minister determines.

25(2)  
The total of the amounts determined under subsection (1) in respect of a year shall not exceed:


(a) in the case of the year 1989 - $584,000; and


(b) in the case of the year 1990 - $618,000.

25(3)  


Financial assistance is granted to an institution under subsection (1) in respect of a year on the condition that:


(a) the sum of the amounts spent by the institution for the purpose of the review and research referred to in subsection (1) in the institution in respect of that year;

is not less than:


(b) the sum of the amounts of financial assistance paid to the institution under subsection (1) in respect of that year.

PART 2.3 [REPEALED]  

SECTION 26   26   GUIDELINES FOR NON-BUILDING CAPITAL PROJECTS  
The Minister may issue guidelines setting out criteria that are to be applied in deciding whether a proposal is a proposal for a non-building capital project.

SECTION 27   27   GUIDELINES FOR SPECIAL CAPITAL PROJECTS  
The Minister may issue guidelines setting out criteria that are to be applied in deciding whether a proposal for expenditure is a proposal for expenditure on a special capital project.

PART 2.4 - TRANSITIONAL  

SECTION 28   ADJUSTMENTS WHERE ESTIMATED 1988 ENROLMENTS NOT EQUAL TO ACTUAL ENROLMENTS  

28(1)  
In this section:

actual enrolment number
, in relation to a relevant higher education institution in respect of the year 1988, means the actual number of relevant enrolments at the institution in respect of that year.

estimated enrolment number
, in relation to a relevant higher education institution in respect of the year 1988, means the number of relevant enrolments at the institution estimated by the Minister under section 5 of the previous Assistance Act.

28(2)  
In this section, relevant enrolment and relevant higher education institution have the same meanings as in section 3 of the previous Assistance Act.

28(3)  
If the actual enrolment number in relation to a relevant higher education institution in a State in respect of the year 1988 is less than the estimated enrolment number in relation to the institution in respect of that year, there is payable to the State in relation to the institution the amount ascertained in accordance with the formula


90 ( E - A ) C.
100

28(4)  
Payment of an amount to a State under Part 2.2 in relation to a relevant higher education institution in respect of the year 1989 is subject to the additional condition that, if the estimated enrolment number in relation to the institution in respect of the year 1988 is less than the actual enrolment number in relation to the institution in respect of that year, the State will pay to the Commonwealth the amount ascertained in accordance with the formula


90 ( A - E ) C.
100

28(5)  
For the purposes of the formulae in subsections (3) and (4):

A is the actual enrolment number in relation to the institution in respect of the year 1988;

E is the estimated enrolment number in relation to the institution in respect of that year; and

C is the amount of charge applicable to that year under section 4D of the States Grants (Tertiary Education Assistance) Act 1984.

28(6)  
An amount payable to a State under subsection (3) in relation to a relevant higher education institution may be added to a grant to the State in relation to that institution in respect of the year 1989.

28(7)  
An amount payable by a State to the Commonwealth in accordance with the condition referred to in subsection (4) may be deducted from a grant to the State in respect of the year 1989 in relation to the institution in relation to which the amount became payable.

28(8)  
Where the Minister is satisfied that:


(a) 2 or more relevant higher education institutions that existed as separate institutions in the year 1988 have amalgamated before or during the year 1989 so as to form a newrelevant higher education institution; or


(b) a relevant higher education institution that existed as a separate institution in the year 1988 has been incorporated in another relevant higher education institution before or during the year 1989;

the Minister may give a direction in accordance with subsection (9) or (10), as the case requires.

28(9)  
The Minister may direct that an amount that would have been payable to a State under subsection (3) in relation to either or any of the institutions first referred to in paragraph (8)(a) or the institution first referred to in paragraph (8)(b), if the institution concerned had continued to exist as a separate institution, continues to be payable to the State and may be added to a grant to the State in relation to the new institution referred to in paragraph (8)(a) or the other institution referred to in paragraph (8)(b), as the case may be, in respect of the year 1989.

28(10)  
The Minister may direct that an amount that would have been payable by a State to the Commonwealth in accordance with the condition referred to in subsection (4) in relation to either or any of the institutions first referred to in paragraph (8)(a) or the institution first referred to in paragraph (8)(b), if the institution concerned had continued to exist as a separate institution, continues to be payable and may be deducted from a grant to the State in relation to the new institution referred to in paragraph (8)(a) or the other institution referred to in paragraph (8)(b), as the case may be, in respect of the year 1989.

CHAPTER 4 - HIGHER EDUCATION CONTRIBUTION SCHEME  

PART 4.1 - PRELIMINARY  

SECTION 34   INTERPRETATION  

34(1)  


In this Chapter, unless the contrary intention appears:

[Account]
(Repealed by No 121 of 2006)

annual Band amount
has the meaning given by section 40A.

annual course contribution
has the meaning given by section 40.

appropriate officer
, in relation to an institution, means a person, or a person included in a class of persons, appointed by, or by a delegate of, the chief executive officer of the institution to be an appropriate officer of the institution for the purposes of this Chapter.

Band
has the meaning given by section 40A.

census date
, in relation to a course of study undertaken by a student at an institution in a semester, means:


(a) in the case of a course undertaken in a period that is taken to be a semester by virtue of subsection 37(2) or (3):


(i) if the course is of not less than 6 weeks duration - the date that is 14 days after the date on which the student starts to undertake the course of study; or

(ii) if the course is of less than 6 weeks duration - the date on which the student starts to undertake the course of study; or


(b) in any other case - such date as is specified for the purposes of this definition by the Minister, by notice published in the Gazette, in relation to courses of study undertaken in that semester.

Commissioner
means the Commissioner of Taxation.

contributing student
, in relation to a designated course of study at an institution, means a student, other than an exempt student, in relation to that course of study.

contribution
means a contribution payable under this Chapter.

designated course of study
, in relation to an institution, means a course of study at that institution other than:


(b) a course of study provided in accordance with guidelines issued by the Minister under:


(i) subsection 13(1); or

(iv) subsection 32(5) of the Maritime College Act 1978;


(c) a course of instruction provided to persons for the purpose of enabling them to undertake a course of study; or


(d) a course provided at Avondale College, being a course that is not funded in whole or in part by the Commonwealth.

exempt student
has the meaning given by section 35.

HEC assessment debt
means an amount that is required to be paid in respect of an accumulated HEC debt under section 106Q and is included in a notice of an assessment made under section 106T.

HEC semester debt
has the meaning given by section 106J.

overseas student charge

post-graduate award student
, in relation to a post-graduate course of study at an institution in respect of a year, means a student who holds an award, granted in accordance with guidelines issued by the Minister for the purposes of this definition, in respect of that course of study in respect of that year.

Reserve

semester
means a semester in a year to which this Chapter applies.

standard student load
has a meaning affected by subsection 39(2).

student
means a person who proposes to undertake on or after 1 January 1989, or is undertaking or has undertaken on or after that date, a course of study at an institution and, when used in relation to a particular course of study at an institution, means a person who proposes to undertake on or after 1 January 1989, or is undertaking or has undertaken on or after that date, that course of study at that institution.

student load
, in relation to a course of study undertaken by a student, has a meaning affected by section 36.

tax file number
, in relation to a person, means a number issued to the person by the Commissioner, being a number that is either:


(a) a number issued to the person under section 44 or under any provisions of another Act that correspond to that section; or


(b) a number notified by the Commissioner to the person as the person's income tax file number.

34(2)  
Expressions used in this Chapter that are defined in the Income Tax Assessment Act 1936 have in this Chapter, unless the contrary intention appears, the same meanings as in that Act.

34(3)  
For the purposes of this Chapter, the payment of an amount to an institution by a person other than a student in respect of a contribution payable by the student to the institution shall be taken to constitute payment of that amount to the institution by the student.

34(4)  
In this Chapter, institution means any of the following institutions of higher education:


(a) the institutions referred to in section 4;


(b) Australian Defence Force Academy;


(f) National Institute of Dramatic Art;


(h) The Australian Film, Television and Radio School.

SECTION 35   EXEMPT STUDENTS  

35(1)  
This section has effect for the purposes of this Chapter.

35(2)  
A post-graduate award student in relation to a post-graduate course of study at an institution in respect of a semester is an exempt student in relation to that course of study in respect of that semester.

35(3)  
A person who proposes to attend or participate in but not to enrol for, is attending or participating in but is not enrolled for, or has attended or participated in but was not enrolled for, a course of study is, and shall be taken to have been at all times, an exempt student in relation to that course of study.

35(4)  
An overseas student in relation to a course of study at an institution in respect of a semester is an exempt student in relation to that course of study in respect of that semester.

35(4A)  
A student of The University of Notre Dame Australia who pays fees for a course of study at that University in respect of a semester is an exempt student in relation to that course of study in respect of that semester.

35(5)  
A student is an exempt student in relation to a course of study in respect of a semester if:


(a) all of the places in that course of study in respect of that semester are fully funded by an employer within the meaning of subsection (6); and


(b) at least some of the places so funded are funded to assist the institution providing the course to meet the needs of the employer; and


(c) the student will occupy one of those fully funded places whether or not the student is an employee of the employer.

35(5A)  
A student is an exempt student in relation to a course of study in respect of a semester if:


(a) the student will occupy a place in that course of study in respect of that semester; and


(b) that place is jointly funded by an employer within the meaning of subsection (6) and by the Commonwealth; and


(c) the student is, in accordance with guidelines issued by the Minister for the purposes of this section, declared by the institution providing the course of study to be an exempt student.

35(5B)  
The Minister may make guidelines for the purposes of subsection (5A) setting out the circumstances in which an institution may declare that a student occupying a place in a course of study in respect of a semester:


(a) that is provided by that institution; and


(b) that is jointly funded by an employer within the meaning of subsection (6) and by the Commonwealth;

is an exempt student.

35(6)  
In subsections (5), (5A) and (5B), employer means a person who pays, or is liable to pay, salary or wages and includes:


(a) the Commonwealth, a State or a Territory; or


(b) any instrumentality of the Commonwealth, a State or a Territory.

35(7)  
A student is an exempt student in relation to a course of study at an institution in respect of a semester if:


(a) the institution has awarded the student a merit-based equity scholarship for the course; and


(b) the institution awarded the scholarship in accordance with guidelines issued by the Minister for the purposes of this subsection.

35(8)  
A student is an exempt student in relation to a course of study in respect of a semester if:


(a) the student is a New Zealand citizen because of the operation of section 29 of the Citizenship Act 1977 of New Zealand; and


(b) the student's study is being sponsored or funded by the Australian International Development Assistance Bureau; and


(c) fees in respect of the student for the course of study are to be charged under guidelines issued under paragraph (d) of the definition of fees in section 3.

SECTION 36   STUDENT LOAD NOT TO INCLUDE WORK EXPERIENCE IN INDUSTRY  

36(1)  
If:


(a) a student is undertaking a course of study at an institution; and


(b) the student does work outside the institution as part of, or in connection with, that course of study; and


(c) the work is not supervised by a member of the institution's staff or by a person who is paid by the institution to do such supervision; and


(d) the purpose of doing the work is to obtain work experience in industry;

then, for the purposes of this Chapter, the student's student load for that course does not include that work.

36(2)  
Section (1) applies whether or not the work forms part of the standard student load for that course.

36(3)  
The Minister may issue guidelines setting out criteria that the institution must apply in deciding whether the requirements in paragraphs (1)(a), (b), (c) and (d) are satisfied.

SECTION 37   SEMESTERS  

37(1)  
If a year to which this Chapter applies in which an institution provides a course of study is not divided into semesters for the purposes of the institution, the Minister may, after consulting the institution, determine that, subject to this section, that year is, in relation to that course of study at that institution, to be taken for the purposes of this Chapter to be divided into 2 semesters and specify the dates on which those semesters respectively start and end.

37(2)  
Where an institution provides a course or courses of study during a period that starts during or after the period that would, but for this subsection, be the last semester to end at the institution in a year to which this Chapter applies and ends before the period that would, but for this subsection, be the first semester at the institution in the next following year, the first-mentioned period shall be taken for the purposes of this Chapter to be a separate semester for the purposes of the institution and to occur in that last-mentioned year.

37(3)  
Where an institution provides a course or courses of study during a period that does not fully coincide with a period that is otherwise, for the purposes of this Chapter a semester for the purposes of the institution, that period is taken for the purposes of this Chapter (other than subsection (2)) to be a separate semester for the purposes of the institution.

PART 4.2 - CONTRIBUTIONS  

Division 1 - Additional condition of grant of financial assistance  

SECTION 38   ADDITIONAL CONDITION  

38(1)  
In addition to the conditions specified in any other provision of this Act, financial assistance is granted to an institution referred to in section 4 on the condition that the institution complies with the requirements of this Chapter.

38(2)  
Without limiting the operation of subsection (1), the following provisions of this Chapter do not of their own force require an institution to do any act or thing.

Division 2 - Imposition and payment of contributions  

SECTION 39   REQUIREMENT TO PAY CONTRIBUTIONS  

39(1)  
An institution shall, in respect of each semester, require each contributing student who is undertaking a designated course of study at the institution on the census date in respect of that course of study in respect of that semester to pay to the institution in respect of that semester a contribution, ascertained in accordance with this section, towards the cost of the provision of that course of study.

39(2)  
Each institution shall determine, in accordance with guidelines issued by the Minister, in respect of each designated course of study that may be undertaken at the institution in a year to which this Chapter applies, a standard student load that represents an equivalent full time student unit.

39(3)   Amount of contribution for pre-1997 student.  

The contribution for a pre-1997 student is worked out using the formula:


Annual course contribution × Student load

where:

annual course contribution
means the annual course contribution for the year in which the semester occurs.

student load
means the student's student load for the course in the semester, expressed as a proportion of the standard student load for the course in the year in which the semester occurs.

39(4)  
For the purposes of this section, a student is a pre-1997 student in relation to a course of study if:


(a) the student commenced the course before 1997, as a contributing student; or


(b) the institution that provides the course has determined that the student is to be treated as a pre-1997 student in relation to the course, and that determination is made in accordance with guidelines issued by the Minister for the purposes of this subsection.

39(5)   Amount of contribution for other students.  

The contribution for a student (other than a pre-1997 student) is the total of the amounts worked out under subsection (6) for each of the Bands.

39(6)  
The amount for a Band is worked out using the formula:


Annual Band amount × Student load for the Band

where:

annual Band amount means the annual Band amount for the Band for the year in which the semester occurs.

student load for the Band means the student's student load for the course in the semester, for units of study in the Band, expressed as a proportion of the standard student load for the course in the year in which the semester occurs.

39(7)   Cents to be disregarded.  

If an amount worked out under subsection (3) or (5) includes any cents, the cents must be disregarded.

SECTION 40   ANNUAL COURSE CONTRIBUTION  

40(1)  
The annual course contribution for the purposes of this Chapter in respect of the year 1992 is $2,250.

40(2)  
The annual course contribution for the purposes of this Chapter in respect of a year (in this subsection called the relevant year ) subsequent to the year 1992 is:


(a) subject to paragraph (b), the amount ascertained by multiplying the annual course contribution in respect of the year immediately preceding the relevant year by the factor ascertained in accordance with subsection (3) in relation to the relevant year; or


(b) if an amount calculated under paragraph (a) consists of a number of whole dollars and a number of cents - the amount so calculated disregarding the cents.

40(3)  
The factor to be ascertained for the purposes of subsection (2) in relation to a year is:


(a) the number, calculated to 3 decimal places, ascertained by dividing the index number for the September quarter in the immediately preceding year by the index number for the September quarter in the year that next preceded that preceding year; or


(b) if the number so ascertained would, if it were calculated to 4 decimal places, end in a number greater than 4 - the number so ascertained increased by 0.001.

40(4)  
Subject to subsection (6), the index number for the September quarter in the year 1991 is 100.00.

40(5)  
The Minister shall, before the end of the year 1992 and before the end of each subsequent year:


(a) determine the index number for the September quarter in the year concerned; and


(b) cause to be published in the Gazette a notice specifying the index number so determined and specifying the amount of the annual course contribution for the purposes of this Part in respect of the next following year.

40(6)  
If at any time, whether before or after the commencement of this section, the Minister has changed or changes the reference base for the Higher Education Operating Grants Index, then, for the purposes of the application of this section after the change took place or takes place, regard shall be had only to index numbers published in terms of the new reference base.

40(7)  
In this section:

index number
, in relation to the September quarter in a year being the year 1992 or a subsequent year, means the Higher Education Operating Grants Index number for that quarter published by the Minister in the Gazette, being a number that takes into account changes in costs incurred by institutions since the September quarter in the immediately preceding year.

SECTION 41   REQUIREMENTS BEFORE ENROLMENT OR UNDERTAKING COURSE  

41(1)  
An institution shall not permit a contributing student who is not an excepted student to enrol for, or undertake, a designated course of study in a semester unless:


(a) the student:


(i) has paid to the institution 75% (or such greater percentage as the student chooses) of the contribution that the institution assesses will be payable by the student in respect of the course of study in respect of that semester if the student is undertaking the course of study as a contributing student on the census date in respect of the course of study in respect of that semester; and

(ii) has given to the appropriate officer of the institution a document in the approved form, signed by the student, stating that the student requests the Commonwealth, in the event of the student undertaking the course of study as a contributing student on the census date in respect of the course of study in respect of any semester and paying at least 75% of the contribution payable by the student in respect of the course of study in respect of the semester concerned, to pay to the institution the remainder (if any) of that contribution in discharge of the student's liability to pay that remainder of that contribution; or


(b) the student has given to the appropriate officer of the institution a document in the approved form, signed by the student:


(i) stating that the student asks the Commonwealth, if the student is undertaking the course of study as a contributing student on the census date for the course of study for any semester without having paid at least $500 or at least 75% of the contribution payable by the student for the course of study for the semester concerned (providing that this amount is less than $500):

(A) to lend to the student an amount equal to the unpaid part of the contribution; and

(B) to apply the amount lent in discharge of the student's liability to pay the unpaid part of the contribution; and

(ii) acknowledging that, if the Commonwealth complies with the request, the student will be liable to make payments in accordance with Chapter 5A; or


(c) subsection (1A) applies to the student.

41(1A)  


This subsection applies to the student if the student:


(a) has made a student payment (see subsection (1B)) to the institution in respect of a course of study in a semester; and


(b) has made the student payment on or before the census date in respect of the course in respect of that semester; and


(c) has given to the appropriate officer of the institution a document in the approved form, signed by the student:


(i) stating that the student asks the Commonwealth, if the student is undertaking the course as a contributing student on the census date for the course for a semester and has made a student payment for the course:

(A) to lend to the student an amount (the formula amount ) worked out using the following formula:
Graphic


(B) to apply the money lent in paying to the institution, in discharge of the student's liability to pay the remainder of the assessed contribution (see subsection (1B)), the amount of that assessed contribution outstanding after deducting from that assessed contribution the amount of the student payment; and

(ii) stating that the student asks the Commonwealth if, having made one or more student payments in respect of the course, the student is undertaking the course in a later semester as a contributing student on the census date for the course without having made a student payment in respect of the course in that semester on or before the census date for the course for that semester:

(A) to lend to the student an amount equal to the unpaid part of the assessed contribution; and

(B) to apply the amount lent in discharge of the student's liability to pay the unpaid part of the assessed contribution; and

(iii) acknowledging that, if the Commonwealth complies with a request, the student will be liable to make payments in accordance with Chapter 5A.

If the student's assessed contribution for the course of study is $2,350 and the student makes a payment of $1,000, the amount that the Commonwealth will lend to the student is $1,017, ie:

Graphic

This amount is the formula amount (see sub-subparagraph (1A)(c)(i)(A)).

The amount that the Commonwealth will pay to the institution to discharge the student's liability is $1350, ie:

$2,350 - $1,000

The value to the student of the discount for making the student payment of $1,000 is $333 (this amount forms part of the amount the Commonwealth pays to the institution to discharge the student's liability), ie:

$1,350 - $1,017

41(1B)  


For the purposes of subsection (1A):

assessed contribution
, in relation to a course of study, means the contribution that an institution assesses will be payable by a student in respect of the course at the institution in respect of a semester, if the student is undertaking the course as a contributing student on the census date in respect of that course in respect of that semester.

student payment
means an amount of $500 or more that is less than 75% of the assessed contribution payable by the student in respect of a course of study.

41(1C)  


If an amount worked out by using the formula in subsection (1A) is an amount made up of dollars and cents, then:


(a) if the amount of cents in the amount is 50 - the amount is to be rounded up to the nearest dollar; and


(b) in any other case - the amount is to be rounded up or down to the nearest dollar.

41(2)  
An institution must not permit a contributing student who is an excepted student to enrol for, or undertake, a designated course of study in a semester unless the student has paid to the institution the total amount of the contribution that the institution assesses will be payable by the student in respect of the course of study in respect of that semester if the student is undertaking the course of study as a contributing student on the census date in respect of the course of study in respect of that semester.

41(3)  


In subsections (1) and (2), excepted student , in relation to a designated course of study in respect of a semester, means:


(a) a student who, on the day ( enrolment day ) on which he or she completes enrolment for the course in respect of that semester, is a New Zealand citizen, other than a New Zealand citizen who:


(i) is also an Australian citizen; or

(ii) is the holder of a permanent visa and:

(A) does not, on enrolment day, satisfy the prescribed residency requirements; or

(B) if, on enrolment day, he or she satisfies the prescribed residency requirements - first satisfied those requirements on a day within the period of 12 months immediately preceding enrolment day; or


(b) a student (other than a New Zealand citizen) who:


(i) is a permanent resident; and

(ii) on enrolment day satisfies the prescribed residency requirements; and

(iii) first satisfied the prescribed residency requirements on a day more than one year before enrolment day; or


(c) a student (other than a New Zealand citizen) who:


(i) is a permanent resident; and

(ii) will be resident outside Australia for the duration of a course in that semester for a reason other than a requirement of the course;

but does not include a student who has been granted an approval to become an Australian citizen under section 24 of the Australian Citizenship Act 2007 and who has yet to make the pledge referred to in section 26 of that Act.

41(4)  
For the purposes of subsection (3), the prescribed residency requirements for a person on a particular day are that the person:


(a) should have been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than one year during the period of 2 years immediately preceding that day; and


(b) should have been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than 2 years during the period of 5 years immediately preceding that day.

41(5)  
In determining, for the purpose of subparagraph (3)(c)(ii), whether a person will be resident outside Australia for the duration of the designated course in a semester, any period of residence in Australia that cannot reasonably be regarded as indicating an intention to reside in Australia for the duration of the course in that semester must be disregarded.

SECTION 42   POWER OF COMMISSIONER TO INFORM INSTITUTION CONCERNING TAX FILE NUMBER  

42(1)  
Where:


(a) the Commissioner receives an application referred to in paragraph 41B(2)(b) asking for the issue of a tax file number; and


(b) the Commissioner has issued or issues a tax file number to the student;

the Commissioner may give to the institution concerned written notice of the tax file number.

42(2)  
If the Commissioner is satisfied:


(a) that the tax file number notified by a student to an institution:


(i) has been cancelled or withdrawn since the notification was given; or

(ii) is otherwise wrong; and


(b) that the student has a tax file number;

the Commissioner may give to the institution concerned written notice of the incorrect notification and of the student's tax file number, and that number shall be taken to be the number notified by the student.

42(2A)  
If the Commissioner issues a new tax file number to a student in place of a tax file number that has been withdrawn, the Commissioner may give to the institution concerned written notice of the student's tax file number, and that number is taken to be the number notified by the student.

42(3)  
If:


(a) the Commissioner is satisfied that the tax file number notified by a student to an institution:


(i) has been cancelled since the notification was given; or

(ii) is for any other reason not the student's tax file number; and


(b) the Commissioner is not satisfied that the student has a tax file number;

the Commissioner may, by written notice given to the institution, inform the institution accordingly.

42(4)  
The Commissioner shall give a copy of any notice under subsection (3) to the student concerned, together with a written statement of the reasons for the decision to give the notice.

42(5)  
If the Commissioner:


(a) refuses an application by a student for the issue of a tax file number; or


(b) cancels a tax file number issued to a student;

the Commissioner may, by written notice given to the institution in which the student is enrolled, inform the institution accordingly.

SECTION 43   APPLICATION FOR ISSUE OR NOTIFICATION OF TAX FILE NUMBER  

43(1)  
A student may apply to the Commissioner for the issue or notification of a tax file number.

43(2)  
The application shall be in a form approved by the Commissioner.

43(3)  
The application may be lodged at, or posted to, the office of a Deputy Commissioner of Taxation.

SECTION 44   ISSUING OF TAX FILE NUMBERS  

44(1)  
Subject to section 49, if, on an application for the issue of a tax file number made by a student, the Commissioner is satisfied that the applicant's identity has been established, the Commissioner shall issue a tax file number to the applicant.

44(2)  
If, on such an application, the Commissioner is not satisfied as to the applicant's true identity, the Commissioner may refuse the application.

44(3)  
The Commissioner shall issue a tax file number to a student by giving to the student a written notice of the number.

44(4)  
The Commissioner shall refuse an application by a student for a tax file number by giving to the student a written notice of the refusal and of the reasons for the refusal.

SECTION 45   45   CURRENT TAX FILE NUMBER  
On the issue under section 44 of a tax file number to a student, any tax file number previously issued to the student and not already cancelled or withdrawn ceases to have effect.

SECTION 46   DEEMED REFUSAL BY COMMISSIONER  

46(1)  
If the Commissioner has not decided an application by a student for a tax file number within 28 days after the application was made, the student may, at any time, give to the Commissioner written notice that the student wishes to treat the application as having been refused.

46(2)  
Where a student gives notice under subsection (1), the Commissioner shall be taken, for the purposes of sections 50 and 51, to have refused the application for a tax file number on the day on which the notice was given.

SECTION 47   CANCELLATION OF TAX FILE NUMBERS  

47(1)  
Where the Commissioner concludes that a tax file number was issued to a student under an identity that is not the student's true identity, the Commissioner may, by written notice given to the student, cancel the tax file number.

47(2)  
The Commissioner shall set out in the notice the reasons for the Commissioner's conclusion.

SECTION 48   48   ALTERATION OF TAX FILE NUMBERS  
The Commissioner may, at any time, by written notice given to a student who has a tax file number:


(a) withdraw that number; and


(b) issue to the student a new tax file number in place of the withdrawn number.

SECTION 49   49   NOTIFICATION OF ISSUED TAX FILE NUMBERS  
If, on an application for the issue or notification of a tax file number made by a student, the Commissioner is satisfied that the student already has a tax file number, the Commissioner shall give to the student a written notice of the number.

SECTION 50   REVIEW OF DECISIONS  

50(1)  
Applications may be made to the Administrative Appeals Tribunal for review of a decision of the Commissioner:


(a) to give a notice under subsection 42(3);


(b) refusing an application for the issue of a tax file number under section 44 (including a decision that is to be taken to have been made by virtue of section 46); or


(c) to cancel a tax file number under section 47.

50(2)  
Where an application has been made to the Tribunal for review of a decision referred to in paragraph (1)(b), the orders that may be made under subsection 41(2) of the Administrative Appeals Tribunal Act 1975 include an order that the Commissioner issue a tax file number to the applicant pending the determination of the application for review.

50(3)  
A tax file number issued in accordance with an order referred to in subsection (2) ceases to have effect when the application is finally disposed of.

50(4)  
When a tax file number ceases to have effect under subsection (3), this Chapter (other than this section) applies as if the number had been cancelled.

SECTION 51   STATEMENTS TO ACCOMPANY NOTIFICATION OF DECISIONS  

51(1)  
Where notice in writing of a decision of a kind referred to in section 50 is given to a person whose interests are affected by the decision, that notice shall include a statement to the effect that, if the person is dissatisfied with the decision, application may, subject to the Administrative Appeals Tribunal Act 1975, be made to the Tribunal for review of the decision and, except where subsection 28(4) of that Act applies, also include a statement to the effect that the person may request a statement under section 28 of that Act.

51(2)  
A failure to comply with subsection (1) does not affect the validity of the decision.

SECTION 52   UNAUTHORISED REQUIREMENT ETC. THAT TAX FILE NUMBER BE QUOTED  

52(1)  


A person must not require or request a student to quote the student's tax file number.

Penalty: $10,000 or imprisonment for 2 years, or both.

52(1A)  


Subsection (1) does not apply if:


(a) provision is made by or under this Chapter or another law of the Commonwealth for the student to quote the number to the person; or


(b) the person requires or requests the number to be quoted in connection with the person acting on the student's behalf in the conduct of the student's affairs.

Note:

A defendant bears an evidential burden in relation to the matters in subsection (1A), see subsection 13.3(3) of the Criminal Code.

52(2)  
Nothing in subsection (1) prohibits a person from requesting the production of a document, or a copy of a document, on which a student's tax file number is recorded if the student is not prevented from removing the tax file number from the document.

52(3)  
For the purposes of this section, a person who makes to a student a statement that the student could reasonably understand to mean that the student is required or requested to quote the student's tax file number shall be taken to require or request the student to quote the number.

52(4)  
Nothing in this section shall be taken to impose on a person an obligation to require or request a student to quote a tax file number.

SECTION 53   UNAUTHORISED RECORDING ETC. OF TAX FILE NUMBER  

53(1)  


A person must not:


(a) record a student's tax file number or maintain such a record; or


(b) use a student's tax file number in a manner connecting it with the student's identity; or


(c) divulge or communicate a student's tax file number to another person.

Penalty: $10,000 or imprisonment for 2 years, or both.

53(1A)  


Subsection (1) does not apply to the extent required or permitted by, or reasonably necessary in order to comply with an obligation imposed by, this Chapter or another law of the Commonwealth.
Note:

A defendant bears an evidential burden in relation to the matters in subsection (1A), see subsection 13.3(3) of the Criminal Code.

53(1B)  


Subsection (1) does not apply in connection with the person acting on the student's behalf in the conduct of the student's affairs.
Note:

A defendant bears an evidential burden in relation to the matters in subsection (1B), see subsection 13.3(3) of the Criminal Code.

53(2)  
Without affecting any obligation imposed by or under a law of the Commonwealth other than this section, nothing in subsection (1) shall be taken to impose on a person an obligation to do an act referred to in paragraph (1)(a), (b) or (c).

SECTION 54   NOTICE BY INSTITUTION  

54(1)  
An institution shall give to each student who is undertaking a designated course of study at the institution on the census date in respect of that course of study in respect of a semester a written notice:


(a) setting out particulars of so much of that course of study as is being undertaken by the student in that semester;


(b) stating whether the student is a contributing student or an exempt student in relation to that course of study in respect of that semester;


(c) setting out the student's student load in respect of that course of study in that semester expressed as a proportion of the standard student load in respect of that course of study in the year in which that semester occurs; and


(d) if the student is a contributing student in relation to that course of study in respect of that semester, specifying:


(i) the amount of the contribution payable by the student in respect of that course of study in respect of that semester under section 39; and

(ii) if the student has made a payment in respect of the contribution in accordance with subparagraph 41(1)(a)(i) or paragraph 41(1A)(a):

(A) the amount of that payment; and

(B) if any amount is payable to the student under paragraph 56(a) or, if the student requests, under paragraph 56(b) - that amount.

54(1A)  


However, an institution is not required to give a student a notice under subsection (1) in relation to a course of study in respect of a semester if:


(a) the student is an overseas student in relation to the course of study in respect of the semester; and


(b) the student pays fees for the course of study in respect of the semester.

54(2)  
A notice to a student under subsection (1) in relation to a semester shall be given not later than a date specified by the Minister by notice published in the Gazette in relation to that semester for the purposes of this section.

54(3)  
If, after giving a notice to a student under subsection (1) or this subsection, an institution is satisfied that a material particular in the notice was not, or has ceased to be, correct, the institution shall give a further written notice to the student setting out the correct particular.

54(4)  
A notice to a student under this section is given for the purpose only of providing information to the student, and the liability of a student to pay a contribution to an institution is not affected by a failure of the institution to give such a notice or to give such a notice by the specified date or by any incorrect statement in such a notice.

54(5)  
A notice given to a student under this secttion shall set out the effectof subsections 55(1) and (2).

SECTION 55   REQUESTS FOR CORRECTION OF NOTICES  

55(1)  
If a student who receives a notice from an institution under section 54 considers that the notice was not, or has ceased to be, correct in a material particular, the student may, within 14 days after the date on which the notice is sent, or within such further period as the appropriate officer of the institution allows, give to that officer a written request for the notice to be corrected in respect of that particular.

55(2)  
A request shall specify the particular that is considered to be incorrect and shall set out the grounds on which the student considers that particular to be incorrect.

55(3)  
The making of a request does not affect the liability of the student to pay the contribution.

55(4)  
Where a request is received by an institution, the institution shall, as soon as practicable, consider the matter to which the request relates and notify the student of its decision on the request and, if it is satisfied that a material particular in the notice under section 54 was not, or has ceased to be, correct, give a further notice under subsection 54(3).

SECTION 56   56   OVERPAYMENT OF CONTRIBUTION  


Where a student has made a payment to an institution in accordance with subparagraph 41(1)(a)(i) or paragraph 41(1A)(a) in respect of the contribution that the institution assessed would be payable by the student in respect of a course of study in respect of a semester under section 39:


(a) if no contribution is payable by the student, the institution shall, as soon as practicable and in any event not later than 14 days after giving notice to the student under section 54 in respect of the course of study in respect of the semester, pay to the student an amount equal to the amount paid by the student; or


(b) if the amount of the payment exceeds 75% of the amount of the contribution payable by the student and the student requests the repayment of the whole or a part of the excess, the institution shall, as soon as practicable after receiving the request, pay to the student an amount equal to the excess or that part of the excess, as the case may be.

SECTION 56C   Electronic communications from students to institutions  

56C(1)  
This section applies in relation to a document, notice, certificate or request that:


(a) is described in one of the following provisions:


(i) subparagraph 41(1)(a)(ii);

(ii) paragraph 41(1)(b);

(iii) paragraph 41(1A)(c);

(iv) paragraph 41B(2)(a);

(v) paragraph 41B(2)(b);

(vi) section 55; and


(b) is required or permitted by the provision to be given by the student to the appropriate officer of the institution.

56C(2)  
The student complies with the provision, so far as it requires or permits the student to give the document, notice, certificate or request to the officer, if the student gives the document, notice, certificate or request to the officer:


(a) by electronic communication using an information system:


(i) that is declared by an appropriate officer of the institution to be a system that may be used by any student to give to an appropriate officer of the institution such a document, notice, certificate or request; and

(ii) that is declared by the Minister to meet guidelines relating to information systems that may be used to give such a document, notice, certificate or request; and


(b) at a time when section 9 of the Electronic Transactions Act 1999 does not apply to the requirement or permission because of regulations made under that Act.

56C(3)  
This section does not limit the ways in which the student may comply with the provision.

56C(4)   Declaration by appropriate officers of institution.  

An appropriate officer of an institution may declare, in writing given to the Minister, that a specified information system may be used by any student to give to an appropriate officer of the institution a document, notice, certificate or request required or permitted by a provision mentioned in paragraph (1)(a) to be given by a student to an appropriate officer of the institution.

Note:

A declaration under this subsection may be revoked. See subsection 33(3) of the Acts Interpretation Act 1901.

56C(5)   Declarations by Minister.  

The Minister may declare, in writing given to an institution, that a specified information system meets the guidelines relating to information systems that may be used by a student to give to an appropriate officer of the institution a document, notice, certificate or request that the student is required or permitted by a provision mentioned in paragraph (1)(a) to give.

Note:

A declaration under this subsection may be revoked. See subsection 33(3) of the Acts Interpretation Act 1901.

56C(6)   Guidelines.  

The Minister may issue written guidelines relating to information systems that may be used to give documents, notices, certificates or requests that students are required or permitted by a provision mentioned in paragraph (1)(a) to give.

Note:

Guidelines under this subsection may be revoked or varied. See subsection 33(3) of the Acts Interpretation Act 1901.

SECTION 56D   Electronic signature of communications by students  

56D(1)  
This section applies in relation to a document that:


(a) is described in one of the following provisions:


(i) subparagraph 41(1)(a)(ii);

(ii) paragraph 41(1)(b);

(iii) paragraph 41(1A)(c); and


(b) is required by the provision to be signed by the student who gives it to the appropriate officer of an institution.

56D(2)  
The student complies with the requirement if the student's identity and approval of the document are made apparent in connection with the document:


(a) by a method:


(i) that is declared by an appropriate officer of the institution to be a method that may be used in connection with such a document; and

(ii) that is declared by the Minister to meet guidelines relating to methods of identifying students, and indicating their approval of documents, in connection with such documents; and


(b) at a time when section 10 of the Electronic Transactions Act 1999 does not apply to the requirement because of regulations made under that Act.

56D(3)  
This section does not limit the ways in which the student may comply with the requirement.

56D(4)   Declarations by appropriate officers of institutions.  

An appropriate officer of an institution may declare, in writing given to the Minister, that a specified method may be used, in connection with a document required by a provision mentioned in paragraph (1)(a) to be signed by a student, to indicate the student's identity and approval of the document.

Note:

A declaration under this subsection may be revoked. See subsection 33(3) of the Acts Interpretation Act 1901.

56D(5)   Declarations by Minister.  

The Minister may declare, in writing given to an institution, that a specified method meets the guidelines relating to methods of identifying students, and indicating their approval of documents, in connection with documents required by a provision mentioned in paragraph (1)(a) to be signed by students.

Note:

A declaration under this subsection may be revoked. See subsection 33(3) of the Acts Interpretation Act 1901.

56D(6)   Guidelines.  

The Minister may issue written guidelines relating to methods of identifying students, and indicating their approval of documents, in connection with documents that students are required by a provision mentioned in paragraph (1)(a) to sign.

Note:

Guidelines under this subsection may be revoked or varied. See subsection 33(3) of the Acts Interpretation Act 1901.

SECTION 56E   Electronic communications from institutions to students  

56E(1)  
This section applies to a notice that is described in section 41A or 54 and given by an institution to a student by electronic communication using an information system to which the student has access provided by the institution in accordance with guidelines about access to information systems used to give notices described in that section.

56E(2)  
For the purposes of paragraph 9(1)(a) of the Electronic Transactions Act 1999, it is reasonable to expect that the notice will be readily accessible so as to be useable for subsequent reference.

56E(3)  
For the purposes of paragraph 9(1)(d) of the Electronic Transactions Act 1999, the student is taken to consent to the giving of the notice by electronic communication.

Note:

This section has the effect that subsection 9(1) of the Electronic Transactions Act 1999 will treat the electronic communication of the notice as meeting the requirement in section 41A or 54 of this Act to give the notice.

56E(4)  
The Minister may issue written guidelines about institutions providing students with access to information systems used by institutions to give students notices described in section 41A or 54.

Note:

Guidelines issued under this section may be revoked or varied. See subsection 33(3) of the Acts Interpretation Act 1901.

Division 3 - Discharge by Commonwealth of students' liabilities for contributions  

SECTION 57   COMMONWEALTH TO DISCHARGE STUDENTS' LIABILITIES  

57(1)  
Where a student in relation to a course of study at an institution is liable to pay a contribution to the institution in respect of that course of study in respect of a semester, the following provisions of this section apply.

57(2)  
If the student has made a payment in respect of the contribution in accordance with subparagraph 41(1)(a)(i) and has complied with subparagraph 41(1)(a)(ii), the Commonwealth shall, as a benefit to the student, pay to the institution an amount equal to the remainder (if any) of the contribution in discharge of the student's liability to pay that remainder of the contribution.

57(3)  
If the student has not made a payment in respect of the contribution in accordance with subparagraph 41(1)(a)(i) but has complied with paragraph 41(1)(b) and section 41B, the Commonwealth shall, as a benefit to the student, lend to the student an amount equal to the unpaid part of the contribution and apply the amount so lent in making a payment to the institution in discharge of the student's liability to pay the unpaid part of the contribution.

57(3A)  


If the student has not:


(a) made a payment in respect of a contribution in accordance with subparagraph 41(1)(a)(i); or


(b) complied with paragraph 41(1)(b);

but the student has:


(c) made a payment in respect of the contribution in accordance with paragraph 41(1A)(a) (the student payment ); and


(d) complied with section 41B;

the Commonwealth must, as a benefit to the student:


(e) lend to the student an amount worked out using the formula in sub-subparagraph 41(1A)(c)(i)(A) (the formula amount ) and apply the amount so lent in making a payment to the institution in partial discharge of the student's liability to pay the unpaid part of the contribution; and


(f) pay to the institution, in discharge of the remainder of the student's liability, an amount (the discount amount ) worked out using the following formula:

Graphic

If the student's contribution for the course of study is $2,350 and the student makes a payment of $1,000, the amount that the Commonwealth will lend to the student is $1,017, ie:

Graphic

This amount is the formula amount (see paragraph (3A)(e)).

The amount that the Commonwealth will pay to the institution to discharge the student's liability is $1,350, ie:

$2,350 - $1,000

The amount that the Commonwealth will pay to the institution comprises the sum of the amount the Commonwealth will lend to the student, ie $1,017 (the formula amount) and the student discount that the student receives for making the student payment ($333).

The value of the discount to the student for making the student payment is calculated as follows:

$1,350 - $1,017

This amount is the discount amount (see paragraph (3A)(f)).

57(3B)  


If:


(a) the student has made a student payment as provided for in subsection (3A); and


(b) the student continues undertaking the course of study and, in a later semester, does not make a student payment in respect of the later semester as provided for in subparagraph 41(1A)(c)(ii), the Commonwealth must, as a benefit to the student:


(i) lend to the student an amount equal to the unpaid part of the contribution; and

(ii) apply the amount so lent in making a payment to the institution in discharge of the student's liability to pay the unpaid part of the contribution.

57(3C)  


If an amount worked out by using the formula in subsection (3A) is an amount made up of dollars and cents, then:


(a) if the amount of cents in the amount is 50 - the amount is to be rounded up to the nearest dollar; and


(b) in any other case - the amount is to be rounded up or down to the nearest dollar.

57(4)  
The Commonwealth may make advances to an institution on account of an amount that is expected to become payable by the Commonwealth to the institution under this section.

SECTION 58   58   INSTITUTIONS TO PROVIDE INFORMATION TO MINISTER  
An institution shall give to the Minister, if and when required by the Minister to do so, such information in its possession relating to students in relation to designated courses of study at the institution in a semester (not being information as to the name or address of a student) as the Minister reasonably requires for the purposes of this Part.

PART 4.3 - HIGHER EDUCATION (HECS) ACCOUNT  

SECTION 59   59   HIGHER EDUCATION ACCOUNT  
(Repealed by No 121 of 2006)

SECTION 60   60   CREDIT OF AMOUNTS TO ACCOUNT  
(Repealed by No 121 of 2006)

SECTION 61   61   APPLICATION OF AN AMOUNT STANDING TO THE CREDIT OF THE ACCOUNT  
(Repealed by No 121 of 2006)

PART 4.4 - [REPEALED]  

Division 5 - Miscellaneous  

SECTION 78   SECRECY  

78(1)  
In this section:

Commissioner
includes a Second Commissioner of Taxation and a Deputy Commissioner of Taxation.

officer
means a person:


(a) who is or has been appointed or employed by the Commonwealth and who, because of the appointment or employment or in the course of the performance of the duties of the appointment or in the course of the employment, may acquire or has acquired confidential information;


(b) to whom powers or functions have been delegated by the Commissioner and who, because of, or in the course of the exercise of powers or the performance of functions under, the delegation, may acquire or has acquired confidential information; or


(c) who is or has been an officer of, or employed by, an institution and who, because of the office or employment or in the course of the performance of the duties of the office or in the course of the employment, may acquire or has acquired confidential information.

78(2)  
A reference in this section to the acquisition by a person of confidential information is a reference to the acquisition of information in relation to the affairs of another person disclosed or obtained under or for the purposes of this Chapter.

78(3)  
For the purposes of this section, a person who, although not appointed or employed by the Commonwealth, performs services for the Commonwealth shall be taken to be employed by the Commonwealth.

78(4)  


An officer who, either directly or indirectly, and either while the person is, or after the person ceases to be, an officer:


(a) makes a record of any information in relation to the affairs of a second person; or


(b) divulges or communicates to a second person any information in relation to the affairs of a third person;

being information disclosed or obtained under or for the purposes of this Chapter and acquired by the person:


(c) because of the person's appointment or employment by the Commonwealth or in the course of such employment;


(d) because of the delegation to the person of powers or functions by the Commissioner or in the course of the exercise of such powers or performance of such functions; or


(e) because of the person's office in or employment by an institution or in the course of the performance of the duties of such an office or in the course of such employment;

as the case may be, is guilty of an offence punishable on conviction by a fine not exceeding $10,000 or imprisonment for a period not exceeding 2 years, or both.

78(4A)  


Subsection (4) does not apply to the extent that the person makes the record of the information, or divulges or communicates the information, for the purposes of this Chapter or in the performance of the person's duties as an officer.
Note:

A defendant bears an evidential burden in relation to the matters in subsection (4A), see subsection 13.3(3) of the Criminal Code.

78(4B)  


For the purposes of an offence against subsection (4), strict liability applies to the physical element of circumstance, that the information was disclosed or obtained under or for the purposes of this Chapter.
Note:

For strict liability, see section 6.1 of the Criminal Code.

78(5)  
Except when it is necessary to do so for the purpose of carrying into effect the provisions of this Chapter, an officer shall not be required:


(a) to produce in court any document made or given under or for the purposes of this Chapter; or


(b) to divulge or communicate to a court a matter or thing in relation to information disclosed or obtained under or for the purposes of this Chapter;

being a document or information acquired by the person:


(c) because of the person's appointment or employment by the Commonwealth or in the course of such employment;


(d) because of the delegation to the person of powers or functions by the Commissioner or in the course of the exercise of such powers or the performance of such functions; or


(e) because of the person's office in or employment by an institution or in the course of the performance of the duties of such an office or in the course of such employment;

as the case may be.

78(6)  
Nothing in subsection (4) shall be taken to prohibit the Commissioner, or a person authorised by the Commissioner, from communicating any information to the Administrative Appeals Tribunal in connection with proceedings under this Act or any Act of which the Commissioner of Taxation has the general administration.

78(7)  
Nothing in an Act of which the Commissioner of Taxation has the general administration shall be taken to prohibit the Commissioner, or a person authorised by the Commissioner, from communicating any information to a person performing, as an officer, duties arising under this Chapter for the purpose of enabling the person to perform those duties.

78(8)  


Nothing in subsection (4) shall be taken to prohibit a person referred to in paragraph (a) or (b) of the definition of officer in subsection (1) from communicating any information to an officer of the Department for the purpose of the provision by that officer of assistance to the person in the performance of duties arising under this Chapter.

78(9)  
For the purposes of subsection (4), an officer shall be taken to have communicated information to another person in contravention of that subsection if the officer communicates the information to any Minister.

78(10)  
An officer shall, if and when required by the Commissioner to do so, make an oath or declaration, in a manner and form specified by the Commissioner in writing, to maintain secrecy in accordance with the provisions of this section.

Division 6 - [Repealed by No 103 of 2013]  

Division 7 - [Repealed by No 103 of 2013]  

Division 8 - [Repealed by No 103 of 2013]  

PART 4.5 - ABOLITION OF HIGHER EDUCATION ADMINISTRATION CHARGE  

Division 1 - [Repealed by No 131 of 1991]  

Division 2 - [Repealed by No 179 of 1989]  

Division 3 - [Repealed by No 103 of 2013]  

Division 4 - Canberra Institute of the Arts  

SECTION 96   96   CHARGES NOT TO BE IMPOSED  
The Canberra Institute of the Arts shall not impose a higher education administration charge or any similar charge in respect of the year starting on 1 January 1989 or any subsequent year.

Division 5 - [Repealed by No 103 of 2013]  

Chapter 4A - POST-GRADUATE EDUCATION LOAN SCHEME  

Part 4A.1 - Preliminary  

SECTION 98A   Definitions  

98A(1)  


In this Chapter, unless the contrary intention appears:

appropriate officer
of an institution means:


(a) a person who is an appropriate officer of the institution for the purposes of Chapter 4; or


(b) if the institution is an eligible private institution - a person, or a person included in a class of persons, appointed by the chief executive officer of the institution or the chief executive officer's delegate to be an appropriate officer of the institution for the purposes of this Chapter.

eligible post-graduate course of study
at an institution means a course of study at the institution that:


(a) is a post-graduate course for which fees may be charged; and


(b) is not a post-graduate research award course of study; and


(c) if the institution is a non-self accrediting private institution:


(i) is a course that is accredited by a State or Territory accreditation agency listed in the Australian Qualifications Framework Register of Bodies with Authority to Issue Qualifications; and

(ii) is a course which the Minister is satisfied meets the criteria in place in the National Protocol for the Accreditation of Higher Education Courses to be offered by non-self accrediting providers, based on the advice of the State or Territory accreditation agency listed in the Australian Qualifications Framework Register of Bodies with Authority to Issue Qualifications.
For the purposes of paragraph (c), a part of an agency is taken to be an agency in its own right.

eligible private institution
has the meaning given by section 98AA.

eligible student
, for a semester, has the meaning given by section 98B.

institution
means:


(a) an institution referred to in section 4; or


(b) an eligible private institution.

National Protocols
means the National Protocols for Higher Education Approval Processes (first endorsed by the Ministerial Council on Education, Employment, Training and Youth Affairs on 31 March 2000), as in force from time to time.

non-self accrediting private institution
is an eligible private institution which appears in column 2 of the table in subsection 98AA(1).

semester
means a semester in a year to which this Chapter applies, and has a meaning affected by subsection (3).

student
means:


(a) a person who proposes to undertake on or after 1 January 2002, or is undertaking or has undertaken on or after that date, an eligible post-graduate course of study at an institution (other than an eligible private institution); and


(b) when used in relation to a particular eligible post-graduate course of study at an institution (other than an eligible private institution) - a person who proposes to undertake on or after 1 January 2002, or is undertaking or has undertaken on or after that date, the eligible post-graduate course of study at that institution; and


(c) a person who proposes to undertake on or after 1 January 2003, or is undertaking or has undertaken on or after that date, an eligible post-graduate course of study at an eligible private institution; and


(d) when used in relation to a particular eligible post-graduate course ofstudy at an eligible private institution - a person who proposes to undertake on or after 1 January 2003, or is undertaking or has undertaken on or after that date, the eligible post-graduate course of study at that institution.

98A(2)  
Expressions used in this Chapter that are defined in Chapter 4 have in this Chapter, unless the contrary intention appears, the same meanings as in Chapter 4.

98A(3)  
For the purposes of subsection (2), section 37 and subsection 39(2) apply in relation to the expressions semester and standard student load in this Chapter in the same way that they apply in relation to those expressions in Chapter 4, as if:


(a) the references in section 37 and subsection 39(2) to institution were references to institution within the meaning of Chapter 4A; and


(b) the reference in subsection 39(2) to each designated course of study were a reference to each eligible post-graduate course of study.

98A(3A)  


For the purposes of this Chapter, the definition of census date in subsection 34(1) applies as if the reference in that definition to institution were a reference to institution within the meaning of Chapter 4A.

98A(4)  
Section 36 does not affect the meaning of the expression student load in this Chapter.

98A(5)  
Expressions used in this Chapter that are defined in the Income Tax Assessment Act 1936 have in this Chapter, unless the contrary intention appears, the same meanings as in that Act.

98A(6)  
For the purposes of this Chapter, the payment of an amount to an institution by a person other than a student in respect of fees payable by the student to the institution is taken to constitute payment of that amount to the institution by the student.

SECTION 98AA   Eligible private institution  

98AA(1)  
For the purposes of this Chapter, an eligible private institution is an institution of higher education specified in the following table:


Eligible private institutions
Column 1 Column 2
self-accrediting private institutions non-self accrediting private institutions
Bond University Christian Heritage College
Melbourne College of Divinity Tabor College (South Australia)

98AA(2)   Amendment of table.  

The Minister may declare that the table in subsection (1) is amended in the manner specified in the declaration and, if such a declaration is made, the declaration has effect accordingly.

Note 1:

A declaration under this subsection is to be in writing - see subsection 9(1).

Note 2:

A declaration under this subsection is a legislative instrument - see paragraph 110(a).

98AA(3)  
The Minister must not make a declaration under subsection (2) that would result in an institution becoming an eligible private institution.

98AA(4)  
For the purposes of section 8 of the Acts Interpretation Act 1901, a declaration under subsection (2) that amends the table in subsection (1) by way of repealing part of that table is taken to be an Act that repeals that part of the table.

98AA(5)   Minister may have regard to breaches of this Chapter.  

In deciding whether to make a declaration under subsection (2) that would result in an institution ceasing to be an eligible private institution, the Minister may have regard to:


(a) whether the institution has breached a requirement of this Chapter; and


(b) such other matters (if any) as the Minister considers relevant.

SECTION 98B   Eligible student  

98B(1)  
A student is an eligible student for a semester if on the day (the enrolment day ) on which the person completes his or her enrolment for the semester, the student is:


(a) an Australian citizen; or


(b) a person who has been granted an approval to become an Australian citizen under section 24 of the Australian Citizenship Act 2007 and who has yet to make the pledge referred to in section 26 of that Act; or


(c) a New Zealand citizen who is the holder of a permanent visa, is present in Australia and:


(i) does not satisfy the residency test in subsection (2); or

(ii) if, on enrolment day, he or she satisfies that test - first satisfied that test on a day within the 12 months immediately preceding the enrolment day; or


(d) a person (other than a New Zealand citizen) who is a permanent resident, is present in Australia and:


(i) does not satisfy the residency test in subsection (2); or

(ii) if, on enrolment day, he or she satisfies that test - first satisfied that test on a day within the 12 months immediately preceding the enrolment day;

unless subsection (3) applies to the student.

Note:

If subsection (3) applies to the student, then the student is not an eligible student.

98B(2)  
A person satisfies the residency test on a particular day if the person:


(a) has been present in Australia as a permanent resident for a period of, or for periods totalling, not less than one year during the period of 2 years immediately preceding that day; and


(b) has been present in Australia as a permanent resident for a period of, or for periods totalling, not less than 2 years during the period of 5 years immediately preceding that day.

98B(3)  
This subsection applies to a student in relation to a course of study for a semester if, on the enrolment day, the student:


(a) is covered by paragraph (1)(c) or (d); and


(b) will be resident outside Australia for the duration of the course in that semester for a reason other than a requirement of the course.

98B(4)  
In determining, for the purpose of paragraph (3)(b), whether a student will be resident outside Australia for the duration of a course in a semester, any period of residence in Australia that cannot reasonably be regarded as indicating an intention to reside in Australia for the duration of the course in that semester must be disregarded.

Part 4A.2 - Additional condition of grant of financial assistance  

SECTION 98C   Additional condition  

98C(1)  
In addition to the conditions specified in any other provision of this Act, financial assistance is granted to an institution on the condition that the institution complies with the requirements of this Chapter.

98C(2)  
Without limiting the operation of subsection (1), the following provisions of this Chapter do not of their own force require an institution to do any act or thing.

Part 4A.3 - Applications for and grants of PELS loans  

Division 1 - Application for PELS loan  

SECTION 98D   Making an application for a PELS loan  

98D(1)  
A person may make an application under this section if he or she:


(a) has enrolled in or proposes to enrol in an eligible post-graduate course of study for a semester at an institution; and


(b) is or will be an eligible student for the semester.

98D(2)  
The application must be made on or before the census date for the course of study for the semester.

98D(3)  
The application must state that the applicant asks the Commonwealth if:


(a) on the census date for the eligible post-graduate course of study for any semester the applicant:


(i) is an eligible student for that semester; and

(ii) is enrolled in the course of study for that semester at the institution; and

(iii) has not paid the full amount of the fees charged by the institution for so much of the course of study as is being undertaken by the student for that semester, leaving part of those fees outstanding; and


(b) that census date is on or after the date on which the application is made;

to lend to the applicant the amount of those fees outstanding and to use the amount so lent to pay the fees outstanding on behalf of the applicant.

Note:

The applicant makes only one application for each course of study.

98D(4)  
The application must also acknowledge that if the Commonwealth complies with the request the applicant will be liable to make payments under Chapter 5A.

98D(5)  
The application must be in the approved form, signed by the applicant and given to an appropriate officer of the institution.

SECTION 98E   98E   Tax file number of student  


Sections 41A, 41B, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52 and 53 apply in relation to the tax file number of a student as if:


(a) any references in those sections to student were references to student within the meaning of Chapter 4A; and


(aa) any references in those sections to institution were references to institution within the meaning of Chapter 4A; and


(aaa) any references in those sections to appropriate officer were references to appropriate officer within the meaning of Chapter 4A; and


(b) the references in paragraphs 41A(1)(a) and 41B(1)(a) to a contributing student were references to an eligible student; and


(c) the references in paragraphs 41A(1)(a) and 41B(1)(a) to giving a document as mentioned in paragraph 41(1)(b) or (1A)(c) were references to making an application under section 98D; and


(d) the references in paragraph 41A(1)(b), subsection 41A(2) and paragraph 41B(1)(b) to the document were references to the application; and


(e) the reference in paragraph 41B(1)(a) to a designated course of study were a reference to an eligible post-graduate course of study; and


(f) the references in subsection 50(4), paragraph 52(1A)(a) and subsection 53(1A) to this Chapter were references to Chapter 4A.

SECTION 98F   Notice by institution  

98F(1)  
An institution must give a written notice under this subsection to each student who:


(a) is enrolled in an eligible post-graduate course of study at the institution on the census date for that course of study for a semester; and


(b) has made an application under section 98D on or before that date in relation to that course of study.

98F(2)  
The notice must:


(a) set out particulars of so much of that course of study as is being undertaken by the student for that semester; and


(b) state whether the student is an eligible student for that semester; and


(c) set out the student's student load in respect of that course of study for that semester expressed as a proportion of the standard student load for that course of study in the year in which that semester occurs; and


(d) specify the full amount of the fees charged by the institution for so much of that course of study as is being undertaken by the student for that semester; and


(e) specify the amount of those fees that has been paid by the student on or before the census date for that course of study for that semester; and


(f) specify the amount of those fees outstanding in respect of the student immediately after the census date for that course of study for that semester.

98F(3)  
A notice to a student under subsection (1) in relation to a semester must be given not later than a date specified by the Minister by notice published in the Gazette in relation to that semester for the purposes of this section.

98F(4)  
If, after giving a notice to a student under subsection (1) or this subsection, the institution is satisfied that a material particular in the notice was not, or has ceased to be, correct, the institution must give a further written notice to the student setting out the correct particular.

98F(5)  
A notice under this section is given for the purpose only of providing information to a student, and the liability of a student to pay fees charged by the institution is not affected:


(a) if the institution fails to give a notice or to give a notice by the specified date; or


(b) if there is an incorrect statement in the notice.

98F(6)  
A notice under this section must set out the effect of subsections 55(1) and (2), as applied in relation to the notice by subsection (7).

98F(7)  
Section 55 applies in relation to a notice under this section as if:


(a) any references in that section to student were references to student within the meaning of Chapter 4A; and


(aa) any references in that section to institution were references to institution within the meaning of Chapter 4A; and


(aaa) any references in that section to appropriate officer were references to appropriate officer within the meaning of Chapter 4A; and


(b) the references in subsections 55(1) and (4) to section 54 were references to section 98F; and


(c) the reference in subsection 55(3) to the liability of the student to pay the contribution were a reference to the liability of the student to pay fees charged by the institution; and


(d) the reference in subsection 55(4) to subsection 54(3) were a reference to subsection 98F(4).

Division 2 - Discharge by Commonwealth of students' liability for fees  

SECTION 98G   Commonwealth to discharge students' liabilities  

98G(1)  
This section operates if an eligible student for a semester:


(a) has made an application under section 98D before the census date for the student's eligible post-graduate course of study for the semester, being the course specified in the application; and


(b) is enrolled in the eligible post-graduate course of study for the semester at the institution, as specified in the application; and


(c) has not, on or before the census date for the course of study for the semester, paid the full amount of the fees charged by the institution for so much of the course of study as is being undertaken by the student for the semester, leaving part of those fees outstanding.

98G(2)  
The Commonwealth must, as a benefit to the student:


(a) lend to the student an amount equal to the amount of the fees outstanding immediately after the census date; and


(b) apply the amount so lent in making a payment to the institution in discharge of the student's liability to pay the amount of the fees outstanding.

98G(3)  
The Commonwealth may make advances to the institution on account of an amount that is expected to become payable by the Commonwealth to the institution under this section.

SECTION 98H   Commonwealth not liable where person does not have a tax file number  

98H(1)  
This section operates if:


(a) the institution receives notice under subsection 42(3) or (5) as applied by section 98E to the effect that a person who has made an application under section 98D does not have, or no longer has, a tax file number; and


(b) at the end of 28 days after the institution receives that notice, the institution has not been notified of a number that the institution is satisfied (in accordance with guidelines issued by the Commissioner) is the person's tax file number.

98H(2)  
The Commonwealth is not liable, and is taken never to have been liable:


(a) to lend an amount to the person under paragraph 98G(2)(a); or


(b) to apply any amount in making a payment to the institution under paragraph 98G(2)(b) in discharge of a liability of the person.

98H(3)  
The regulations may set out procedures for the institution to notify persons who may be affected by subsection (2).

SECTION 98J   98J   Institution to provide information to minister about post-graduate students  


An institution must give to the Minister, if and when required by the Minister to do so, any statistical and other information relating to students in relation to eligible post-graduate courses of study (not being information as to the name or address of a student) that the Minister reasonably requires for the purposes of this Part.

SECTION 98JA   Eligible private institution to report information  

98JA(1)  
The Minister must, as soon as practicable after 31 December in each year, require each eligible private institution that offers an eligible post-graduate course of study to report to the Minister, in an approved form, information regarding their operations during that year.

98JA(2)  
The eligible private institution must comply with a requirement under subsection (1) as soon as practicable.

98JA(3)  
The information provided under subsection (1) must include (but is not limited to):


(a) information consistent with that required of any institution to which similar financial assistance is granted under this Act; and


(b) further information consistent with that required of any institution under this Act, as determined by the Minister.

Note 1:

Section 108 requires any institution to which financial assistance is granted to provide a financial statement, together with an auditor's report.

Note 2:

The Minister may require statistical and other information under paragraph 18(1)(g). The Minister may also require further information relating to students in designated courses of study at the institution under section 58.

98JA(4)  
The Minister must be satisfied that the eligible private institutions have met these requirements and must table the relevant information in each House of the Parliament as soon as practicable after receipt.

Part 4A.4 - Miscellaneous  

SECTION 98K   98K   Secrecy  


Section 78 has effect in relation to information disclosed or obtained under, or for the purposes of, this Chapter as if the section were included in this Chapter.

SECTION 98L   98L   Annual statement  


The chief executive officer of an institution must give to the Minister, on or before 31 December in each year up to and including the year 2004, a statement:


(a) as to whether the institution has complied with the requirements of this Chapter in respect of the year ending on that 31 December; and


(b) if the institution has not complied with such a requirement in respect of that year, setting out particulars of the non-compliance.

SECTION 98M   Electronic communications between students and institutions  

98M(1)  
Sections 56C, 56D and 56E apply for the purposes of this Chapter as if a reference in those sections to a person, thing or provision mentioned in the second column of an item of the table were a reference to the person, thing or provision mentioned in the third column of the item.


How sections 56C, 56D and 56E apply
Item Person, thing or provision mentioned in section 56C, 56D or 56E Equivalent person, thing or provision for this Chapter
1 Student Student (within the meaning of Chapter 4A), person or applicant
2 Institution Institution within the meaning of Chapter 4A
3 Document Application
4 Paragraph 41(1)(b) Section 98D
5 Section 54 Section 98F

98M(2)  
This section does not affect the way in which sections 56C, 56D and 56E apply apart from this section.

CHAPTER 4B - BRIDGING FOR OVERSEAS-TRAINED PROFESSIONALS (BOTP) LOAN SCHEME  

PART 4B.1 - INTRODUCTION  

SECTION 98N   98N   SIMPLIFIED OUTLINE  


The following is a simplified outline of this Chapter:
  • · This Chapter setsup a scheme for the Commonwealth to make loans to overseas-trained professional people who do not meet the requirements for entry to their professions in Australia.
  • · The loans will be applied to pay fees for bridging courses ( BOTP courses ) which will enable those people to meet those entry requirements.
  • · To be eligible for a loan, an overseas-trained professional person must:
  • (a) meet certain citizenship/residency requirements; and
  • (b) obtain an assessment statement from a relevant assessing body; and
  • (c) enrol in a course that relates to the assessment statement.
  • · An assessment statement is a statement to the effect that, if the person were to successfully undertake further studies, be successful in one or more examinations or successfully undertake a tuition and training program, the person would meet the requirements for entry to that profession in Australia.
  • SECTION 98NA   98NA   NO FINANCIAL ASSISTANCE PAYABLE  


    No financial assistance is payable under this Chapter to an institution referred to in section 4 after 31 December 2004.

    SECTION 98P   DEFINITIONS  

    98P(1)  
    In this Chapter, unless the contrary intention appears:

    appropriate officer
    of an institution means a person who is an appropriate officer of the institution for the purposes of Chapter 4.

    assessment statement
    has the meaning given by section 98T.

    BOTP course
    has the meaning given by section 98U.

    BOTP loan
    means a loan under subsection 98ZA(2).

    census date
    , in relation to so much of a BOTP course as is undertaken by a student for a study period, means:


    (a) in the case of a BOTP course that is covered by subsection 98U(2) or (3):


    (i) if the study period is of not less than 6 weeks duration - the date that is 14 days after the date on which the student starts to undertake the course of instruction or the tuition and training program concerned; or

    (ii) if the study period is of less than 6 weeks duration - the date on which the student starts to undertake the course of instruction or the tuition and training program concerned; or


    (b) in the case of a BOTP course that is covered by subsection 98U(1), where the study period is a semester because of subsection 37(2) or (3) asapplied by subsection (4) of this section:


    (i) if the study period is of not less than 6 weeks duration - the date that is 14 days after the date on which the student starts to undertake the subject unit concerned; or

    (ii) if the study period is of less than 6 weeks duration - the date on which the student starts to undertake the subject unit concerned; or


    (c) in the case of a BOTP course that is covered by subsection 98U(1), where the study period is a semester otherwise than because of subsection 37(2) or (3) as applied by subsection (4) of this section - such date as is specified for the purposes of this definition by the Minister, by notice published in the Gazette, in relation to BOTP courses undertaken in that semester.

    citizenship/residency requirements
    has the meaning given by section 98V.

    fees
    , in relation to a BOTP course at an institution, means tuition, examination or other fees payable to the institution by a student enrolled at, or applying for enrolment at, the institution in connection with the BOTP course, but does not include:


    (a) fees the payment of which is voluntary; or


    (b) fees payable in respect of an organisation of students, or of students and other persons, or in respect of the provision to students of amenities or services that are not of an academic nature; or


    (c) fees payable in respect of residential accommodation; or


    (d) fees of a kind that are incidental to studies that may be undertaken at institutions and that the Minister has notified each institution to be fees of a kind to which this paragraph applies.

    For the purposes of paragraph (b), the expression student has its ordinary meaning.

    institution
    has the meaning given by section 4 (despite subsection (2) of this section).

    listed professional occupation
    has the meaning given by section 98S.

    non-award basis
    , in relation to enrolment in:


    (a) a subject unit at an institution; or


    (b) a course of instruction at an institution; or


    (c) a tuition and training program at an institution;

    means the basis that the completion of the unit, course or program will not lead to the granting of a degree, diploma, associate diploma or other award of the institution.

    occupation
    has a meaning affected by section 98Q.

    relevant assessing body
    , in relation to a listed professional occupation, has the meaning given by section 98S.

    requirements
    for entry to a listed professional occupation has the meaning given by section 98R.

    semester
    has a meaning affected by subsection (4).

    student
    means:


    (a) a person who proposes to undertake on or after 1 July 2002, or is undertaking or has undertaken on or after that date, a BOTP course at an institution; and


    (b) when used in relation to a particular BOTP course at an institution - a person who proposes to undertake on or after 1 July 2002, or is undertaking or has undertaken on or after that date, the BOTP course at that institution.

    student load
    has a meaning affected by subsection (3).

    study period
    , in relation to a BOTP course, means:


    (a) in the case of a BOTP course that is covered by subsection 98U(1) - a semester; or


    (b) in the case of a BOTP course that is covered by subsection 98U(2) and that consists of 2 or more courses of instruction - a period during which such a course of instruction is undertaken; or


    (c) in any other case - the period during which the course is undertaken.

    subject unit
    , in relation to an institution, means a subject unit that is ordinarily offered by the institution as part of a course of study at the institution, but that is also offered, on a non-award basis, to persons who are not undertaking that course of study.

    98P(2)   Expressions defined in Chapter 4.  

    Expressions used in this Chapter that are defined in Chapter 4 have in this Chapter, unless the contrary intention appears, the same meanings as in Chapter 4.

    98P(3)   Student load.  

    For the purposes of subsection (2), section 36 applies in relation to the expression student load in this Chapter in the same way as it applies in relation to that expression in Chapter 4, as if:


    (a) the references in section 36 to student were references to student within the meaning of Chapter 4B; and


    (b) the references in section 36 to institution were references to institution within the meaning of Chapter 4B; and


    (c) the references in section 36 to course of study were references to subject unit, course of instruction or tuition and training program.

    98P(4)   Semester.  

    For the purposes of subsection (2), section 37 applies in relation to the expression semester in this Chapter in the same way as it applies in relation to that expression in Chapter 4, as if:


    (a) the references in section 37 to institution were references to institution within the meaning of Chapter 4B; and


    (b) the references in section 37 to course of study were references to subject unit.

    98P(5)   Expressions defined in the Income Tax Assessment Act 1936.  

    Expressions used in this Chapter that are defined in the Income Tax Assessment Act 1936 have in this Chapter, unless the contrary intention appears, the same meanings as in that Act.

    98P(6)   Payment by a person other than a student.  

    For the purposes of this Chapter, the payment of an amount to an institution by a person other than a student in respect of fees payable by the student to the institution is taken to constitute payment of that amount to the institution by the student.

    98P(7)   Course or program provided on behalf of an institution.  

    For the purposes of this Chapter:


    (a) a course of instruction provided on behalf of an institution is taken to be provided at the institution, and a person enrolled in such a course is taken to be enrolled at the institution; and


    (b) a tuition and training program provided on behalf of an institution is taken to be provided at the institution, and a person enrolled in such a program is taken to be enrolled at the institution.

    SECTION 98Q   OCCUPATION  

    98Q(1)   Part of an occupation.  

    The Minister may determine that, for the purposes of this Chapter, a specified part of an occupation is an occupation in its own right.

    Note 1:

    A determination under this subsection is to be in writing - see subsection 9(1).

    Note 2:

    A determination under this subsection is a legislative instrument - see paragraph 110(b).

    98Q(2)  
    The following are examples of ways in which a part of an occupation can be specified:


    (a) so much of an occupation as has a Bachelor degree (or equivalent) entry requirement;


    (b) so much of an occupation as consists of a particular specialisation.

    98Q(3)  
    A determination under subsection (1) has effect accordingly.

    98Q(4)  
    A copy of a determination under subsection (1) is to be:


    (a) published in the Gazette; and


    (b) made available on the internet.

    SECTION 98R   REQUIREMENTS FOR ENTRY TO OCCUPATION  

    98R(1)  
    A reference in this Chapter to the requirements for entry to a listed professional occupation is a reference to the educational requirements for entry to that occupation, but does not include a reference to:


    (a) English language training relating to general aspects of written and/or verbal communication; or


    (b) being successful in:


    (i) the Occupational English Test administered by Language Australia; or

    (ii) any other English language test, where that test does not form an integral part of an occupation-related study unit, an occupation-related course of instruction or an occupation-related tuition and training program.

    98R(2)  
    For the purposes of this Chapter, a requirement for entry to a listed professional occupation may:


    (a) be imposed by or under a law; or


    (b) be imposed by or under the rules of a body; or


    (c) consist of eligibility for membership of a body; or


    (d) arise as a generally accepted employment or industry practice.

    SECTION 98S   LISTED PROFESSIONAL OCCUPATIONS AND RELEVANT ASSESSING BODIES  

    98S(1)  
    The Minister may determine that, for the purposes of this Chapter:


    (a) a specified occupation is a listed professional occupation; and


    (b) a specified person or body is a relevant assessing body for a particular listed professional occupation.

    Note:

    A determination under this subsection is a legislative instrument - see paragraph 110(b).

    98S(2)  
    A determination under subsection (1) has effect accordingly.

    98S(3)  
    A copy of a determination under subsection (1) is to be:


    (a) published in the Gazette; and


    (b) made available on the internet.

    98S(4)  
    To avoid doubt, an occupation may be specified even if it is not one of the traditional professions.

    98S(5)  
    This section does not prevent 2 or more persons or bodies from being relevant assessing bodies for the same listed professional occupation.

    98S(6)  
    The specification of a person or body as a relevant assessing body for a particular listed professional occupation may be expressed to be limited to a particular State. In that event, sections 98T and 98U have effect, in relation to the relevant assessing body, as if each reference in those sections to Australia were, by express provision, confined so much of Australia as consists of that State.

    SECTION 98T   ASSESSMENT STATEMENT GIVEN BY RELEVANT ASSESSING BODY  

    98T(1)   Post-commencement assessment statement.  

    If:


    (a) a person holds a qualification awarded in a foreign country; and


    (b) the qualification relates to a listed professional occupation; and


    (c) the person proposes to seek entry to that occupation in Australia;

    a relevant assessing body for that occupation may give the person a written statement to the effect that, in the opinion of the body, if the person were to do any or all of the following:


    (d) successfully undertake additional studies of a kind specified in the statement;


    (e) be successful in one or more examinations specified in the statement;


    (f) successfully undertake a tuition and training program of a kind specified in the statement;

    the person would meet the requirements for entry to that occupation in Australia.

    Note:

    A statement could specify one of the things mentioned in paragraph (d), (e) or (f) or any combination of the things mentioned in those paragraphs.

    98T(2)  
    A statement under subsection (1) is an assessment statement for the purposes of this Chapter.

    98T(3)  
    This section does not affect the power of a relevant assessing body to charge fees for an assessment statement under subsection (1).

    98T(4)   Pre-commencement assessment statement  

    If, at a time before the commencement of this section:


    (a) a person held a qualification awarded in a foreign country; and


    (b) the qualification related to a listed professional occupation; and


    (c) the person proposed to seek entry to that occupation in Australia; and


    (d) a relevant assessing body for that occupation gave the person a written statement to the effect that, in the opinion of the body, if the person were to do any or all of the following:


    (i) successfully undertake additional studies of a kind specified in the statement;

    (ii) be successful in one or more examinations specified in the statement;

    (iii) successfully undertake a tuition and training program of a kind specified in the statement;
    the person would meet the requirements for entry to that occupation in Australia;

    the statement is an assessment statement for the purposes of this Chapter.

    Note:

    A statement could specify one of the things mentioned in subparagraph (d)(i), (ii) or (iii) or any combination of the things mentioned in those subparagraphs.

    98T(5)  
    For the purposes of subsection (4), assume that the first set of determinations under subsections 98Q(1) and 98S(1) had been in force at the time mentioned in subsection (4) of this section.

    SECTION 98U   BOTP course  

    98U(1)   Subject units.  

    For the purposes of this Chapter, if:


    (a) a person holds an assessment statement issued by a relevant assessing body for a listed professional occupation; and


    (b) the statement is to the effect that, in the opinion of the body, if the person were to successfully undertake additional studies of a kind specified in the statement, the person would meet the requirements for entry to that occupation in Australia; and


    (c) the person undertakes, or proposes to undertake, those additional studies by enrolling, or proposing to enrol, on a non-award basis, in one or more subject units at an institution; and


    (d) the total student load imposed on the person in relation to those subject units does not exceed the institution's maximum BOTP student load determined under subsection (4);

    then:


    (e) those subject units are together a BOTP course in relation to the person; and


    (f) that BOTP course relates to the assessment statement.

    98U(2)   Courses of instruction.  

    For the purposes of this Chapter, if:


    (a) a person holds an assessment statement issued by a relevant assessing body for a listed professional occupation; and


    (b) the statement is to the effect that, in the opinion of the body, if the person were to be successful in one or more examinations specified in the statement, the person would meet the requirements for entry to that occupation in Australia; and


    (c) the person prepares, or proposes to prepare, for those examinations by enrolling, or proposing to enrol, on a non-award basis, in one or more occupation-related courses of instruction provided by or on behalf of an institution; and


    (d) the total student load imposed on the person in relation to those courses does not exceed the institution's maximum BOTP student load determined under subsection (4);

    then:


    (e) those courses are together a BOTP course in relation to the person; and


    (f) that BOTP course relates to the assessment statement.

    98U(3)   Tuition and training program.  

    For the purposes of this Chapter, if:


    (a) a person holds an assessment statement issued by a relevant assessing body for a listed professional occupation; and


    (b) the statement is to the effect that, in the opinion of the body, if the person were to undertake a tuition and training program of a kind specified in the statement, the person would meet the requirements for entry to that occupation in Australia; and


    (c) the person undertakes, or proposes to undertake, such a program by enrolling, or proposing to enrol, on a non-award basis, in a tuition and training program provided by or on behalf of an institution; and


    (d) the total student load imposed on the person in relation to that program does not exceed the institution's maximum BOTP student load determined under subsection (4);

    then:


    (e) that program is a BOTP course in relation to the person; and


    (f) that BOTP course relates to the assessment statement.

    98U(4)   Maximum BOTP student load.  

    For the purposes of this section, the maximum BOTP student load for an institution is the student load determined by the institution, in accordance with guidelines issued by the Minister, to represent:


    (a) the load imposed on a full-time student for one year; or


    (b) the part-time equivalent of that load.

    98U(5)   Repeats.  

    For the purposes of this section, the total student load imposed on a person is to be worked out on the assumption that the person will not be required to repeat anything.

    98U(6)  
    Subsection (5) does not, by implication, affect the meaning of the expression student load in a provision of this Act other than this section.

    SECTION 98V   98V   CITIZENSHIP/RESIDENCY REQUIREMENTS  


    For the purposes of this Chapter, a person meets the citizenship/residency requirements at a particular time if, at that time, the person is ordinarily resident in Australia and is:


    (a) an Australian citizen; or


    (b) a person who has been granted an approval to become an Australian citizen under section 24 of the Australian Citizenship Act 2007 and who has yet to make the pledge referred to in section 26 of that Act; or


    (c) a person who is a permanent resident.

    PART 4B.2 - ADDITIONAL CONDITION OF GRANT OF FINANCIAL ASSISTANCE  

    SECTION 98W   ADDITIONAL CONDITION  

    98W(1)  
    In addition to the conditions specified in any other provision of this Act, financial assistance is granted to an institution on the condition that the institution complies with the requirements of this Chapter.

    98W(2)  
    Without limiting subsection (1), the following provisions of this Chapter do not of their own force require an institution to do any act or thing.

    PART 4B.3 - APPLICATIONS FOR, AND GRANTS OF, BOTP LOANS  

    DIVISION 1 - APPLICATION FOR BOTP LOAN  

    SECTION 98X   MAKING AN APPLICATION FOR A BOTP LOAN  

    98X(1)  
    A person may make an application for a BOTP loan if:


    (a) the person holds an assessment statement issued by a relevant assessing body for a listed professional occupation; and


    (b) the person has enrolled in, or proposes to enrol in, a BOTP course for a study period at an institution; and


    (c) the BOTP course relates to the assessment statement; and


    (d) the study period began on or after 1 July 2002.

    98X(2)  
    The application must be made on or before the census date for the BOTP course for the study period.

    98X(3)  
    The application must state that the applicant asks the Commonwealth, in the event that, on the census date for the BOTP course for the study period, the applicant:


    (a) meets the citizenship/residency requirements; and


    (b) is enrolled in the BOTP course for the study period at the institution; and


    (c) has not paid the full amount of the fees charged by the institution for so much of the BOTP course as is being undertaken by the applicant for the study period;

    to lend to the applicant the amount of those fees outstanding and to use the amount so lent to pay the fees outstanding on behalf of the applicant.

    98X(4)  
    The application must also acknowledge that, if the Commonwealth complies with the request, the applicant will be liable to make payments under Chapter 5A.

    98X(5)  
    The application must be:


    (a) in the approved form; and


    (b) signed by the applicant; and


    (c) given to an appropriate officer of the institution.

    98X(6)  
    Two or more applications may be set out in the same document if the applications are made by the same person and relate to the same BOTP course.

    SECTION 98Y   98Y   TAX FILE NUMBER OF STUDENT  


    Sections 41A, 41B, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52 and 53 apply in relation to the tax file number of a student as if:


    (a) any references in those sections to student were references to student within the meaning of Chapter 4B; and


    (aa) any references in those sections to institution were references to institution within the meaning of Chapter 4B; and


    (b) any reference in those sections to semester were references to study period within the meaning of Chapter 4B; and


    (c) the references in paragraphs 41A(1)(a) and 41B(1)(a) to a contributing student were references to a student within the meaning of Chapter 4B; and


    (d) the references in paragraphs 41A(1)(a) and 41B(1)(a) to giving a document as mentioned in paragraph 41(1)(b) or 41(1A)(c) were references to making an application under section 98X; and


    (e) the references in paragraph 41A(1)(b), subsection 41A(2) and paragraph 41B(1)(b) to the document were references to the application; and


    (f) the reference in paragraph 41B(1)(a) to a designated course of study were a reference to a BOTP course; and


    (g) the references in subsection 50(4), paragraph 52(1A)(a) and subsection 53(1A) to this Chapter were references to Chapter 4B.

    SECTION 98Z   NOTICE BY INSTITUTION  

    98Z(1)  
    An institution must give a written notice under this subsection to each student who:


    (a) is enrolled in a BOTP course at the institution on the census date for that course for a study period; and


    (b) has made an application under section 98X for a BOTP loan on or before the census date for that course for that study period.

    98Z(2)  
    The notice must:


    (a) set out particulars of so much of that course as is being undertaken by the student for that study period; and


    (b) specify the full amount of the fees charged by the institution for so much of that course as is being undertaken by the student for that study period; and


    (c) specify the amount of those fees that has been paid by the student on or before the census date for that course for that study period; and


    (d) specify the amount of those fees outstanding in respect of the student immediately after the census date for that course for that study period.

    98Z(3)  
    A notice to a student under subsection (1) in relation to a study period must be given on or before a date specified by the Minister by notice published in the Gazette in relation to that study period for the purposes of this section.

    98Z(4)  
    If, after giving a notice to a student under subsection (1) or this subsection, the institution is satisfied that a material particular in the notice was not, or has ceased to be, correct, the institution must give a further written notice to the student setting out the correct particular.

    98Z(5)  
    A notice under this section is given for the purpose only of providing information to a student, and the liability of a student to pay fees charged by the institution is not affected:


    (a) if the institution fails to give a notice or to give a notice by the specified date; or


    (b) if there is an incorrect statement in the notice.

    98Z(6)  
    A notice under this section must set out the effect of subsections 55(1) and (2), as applied in relation to the notice by subsection (7).

    98Z(7)  
    Section 55 applies in relation to a notice under this section as if:


    (a) any references in that section to student were references to student within the meaning of Chapter 4B; and


    (aa) any references in that section to institution were references to institution within the meaning of Chapter 4B; and


    (b) the references in subsections 55(1) and (4) to section 54 were references to section 98Z; and


    (c) the reference in subsection 55(3) to the liability of the student to pay the contribution were a reference to the liability of the student to pay fees charged by the institution; and


    (d) the reference in subsection 55(4) to subsection 54(3) were a reference to subsection 98Z(4).

    SECTION 98ZAA   98ZAA   APPLICATION OF DIVISION  


    This Division does not apply in relation to a BOTP course for a study period that ends after 31 December 2004.

    DIVISION 2 - DISCHARGE BY THE COMMONWEALTH OF STUDENTS' LIABILITY FOR FEES  

    SECTION 98ZA   COMMONWEALTH TO DISCHARGE STUDENTS' LIABILITIES  

    98ZA(1)  
    This section operates if a student:


    (a) has made an application under section 98X for a BOTP loan before the census date for a BOTP course for a study period that began on or after 1 July 2002, being the course specified in the application; and


    (b) meets the citizenship/residency requirements on the census date for that course for that study period; and


    (c) is enrolled in the BOTP course on the census date for that course for that study period; and


    (d) has not, on or before the census date for that course for that study period, paid the full amount of the fees charged by the institution concerned for so much of that course as is being undertaken by the student for that study period.

    98ZA(2)  
    The Commonwealth must, as a benefit to the student:


    (a) lend to the student an amount equal to the amount of the fees outstanding immediately after the census date; and


    (b) apply the amount so lent in making a payment to the institution in discharge of the student's liability to pay the amount of the fees outstanding.

    98ZA(3)  
    The Commonwealth may make advances to the institution on account of an amount that is expected to become payable by the Commonwealth to the institution under this section.

    SECTION 98ZB   COMMONWEALTH NOT LIABLE WHERE PERSON DOES NOT HAVE A TAX FILE NUMBER  

    98ZB(1)  
    This section operates if:


    (a) the institution receives notice under subsection 42(3) or (5) as applied by section 98Y to the effect that a person who has made an application under section 98X for a BOTP loan does not have, or no longer has, a tax file number; and


    (b) at the end of 28 days after the institution receives that notice, the institution has not been notified of a number that the institution is satisfied (in accordance with guidelines issued by the Commissioner) is the person's tax file number.

    98ZB(2)  
    The Commonwealth is not liable, and is taken never to have been liable:


    (a) to lend an amount to the person under paragraph 98ZA(2)(a); or


    (b) to apply any amount in making a payment to the institution under paragraph 98ZA(2)(b) in discharge of a liability of the person.

    98ZB(3)  
    The regulations may set out procedures for the institution to notify persons who may be affected by subsection (2).

    SECTION 98ZC   98ZC   INSTITUTION TO PROVIDE INFORMATION TO MINISTER  


    An institution must give to the Minister, if and when required by the Minister to do so, any statistical and other information about students in relation to BOTP courses (not being information as to the name or address of a student) that the Minister reasonably requires for the purposes of this Part.

    PART 4B.4 - MISCELLANEOUS  

    SECTION 98ZD   98ZD   SECRECY  


    Section 78 has effect in relation to information disclosed or obtained under, or for the purposes of, this Chapter as if that section were included in this Chapter.

    SECTION 98ZE   98ZE   ANNUAL STATEMENT  


    The chief executive officer of an institution must give to the Minister, on or before 31 December in each year up to and including the year 2004, a statement:


    (a) as to whether the institution has complied with the requirements of this Chapter in respect of the year ending on that 31 December; and


    (b) if the institution has not complied with such a requirement in respect of that year - setting out particulars of the non-compliance.

    SECTION 98ZF   ELECTRONIC COMMUNICATIONS BETWEEN STUDENTS AND INSTITUTIONS  

    98ZF(1)  
    Sections 56C, 56D and 56E apply for the purposes of this Chapter as if a reference in those sections to a person, thing or provision mentioned in the second column of an item of the table were a reference to the person, thing or provision mentioned in the third column of the item.


    How sections 56C, 56D and 56E apply
    Item Person, thing or provision mentioned in section 56C, 56D or 56E Equivalent person, thing or provision for this Chapter
    1 Student Student (within the meaning of Chapter 4B), person or applicant
    2 Institution Institution within the meaning of Chapter 4B
    3 Document Application
    4 Paragraph 41(1)(b) Section 98X
    5 Section 54 Section 98Z

    98ZF(2)  
    This section does not affect the way in which sections 56C, 56D and 56E apply apart from this section.

    CHAPTER 5 - OPEN LEARNING DEFERRED PAYMENT SCHEME  

    PART 5.1 - PRELIMINARY  

    SECTION 99   INTERPRETATION  

    99(1)  
    In this Chapter, unless the contrary intention appears:

    Agency
    means Open Learning Agency of Australia Pty. Ltd. (Australian Corporation No. 053 431 888).

    appropriate officer
    means a person appointed by the Agency to be an appropriate officer for the purposes of this Chapter.

    approved course of study
    , in relation to a client of the Agency, means an undergraduate course of study:


    (a) undertaken by the client through an institution; and


    (b) access to which was provided by the Agency.

    basic charge
    has the meaning given by section 104.

    census date
    , in relation to a study period, means the date declared by the Minister, by notice published in the Gazette, to be the census date for the study period.

    Commissioner
    means the Commissioner of Taxation.

    deferred payment scheme
    means the scheme referred to in section 100 and for which provision is made under this Chapter.

    eligible client
    , in relation to the Agency, has the meaning given by section 101.

    enrol
    , in relation to a unit of study, has a meaning affected by subsection (2).

    OL study period debt
    has the meaning given by section 106K.

    standard study load
    has the meaning given by section 103.

    study period
    means a period of 13 weeks commencing in March, June, September or December in any year to which this Chapter applies on a day determined by the Minister by notice published in the Gazette.

    tax file number
    has the same meaning as in Chapter 4.

    99(2)  
    For the purposes of this Chapter:


    (a) a person is taken not to have enrolled for a unit of study for a study period if his or her enrolment for the unit of study was withdrawn on or before the census date for that study period; and


    (b) a person who is participating in the deferred payment scheme is taken not to have been enrolled for the units of study, or a number of the units of study, for a study period if:


    (i) the person incurred an OL study period debt in respect of that study period; and

    (ii) the OL study period debt, or a part of the OL study period debt equal to the basic charges for that number of units of study, was subsequently remitted under section 106L or 106M.

    99(3)  
    For the purposes of this Chapter, the payment of an amount to the Agency by a person other than a client in respect of a charge payable by the client to the Agency is taken to be a payment of that amount to the Agency by the client.

    SECTION 100   OBJECT OF PART  

    100(2)  
    The object of this Part is to make provision for a scheme under which the Commonwealth undertakes, if so required by certain clients of the Agency, to pay to the Agency the basic charges in respect of the units of study for which they have enrolled for the purposes of an approved course of study.

    100(3)  
    Those charges are to be repaid to the Commonwealth, as provided under Chapter 5A, when the clients concerned have a HEC repayment income (within the meaning of that Chapter).

    SECTION 101   ELIGIBLE CLIENTS  

    101(1)  
    A client of the Agency is an eligible client in respect of a study period if:


    (a) as at the census date for the study period, the client is enrolled to undertake at least 2 units of study for the purposes of an approved course of study in the study period; and


    (b) the number of units of study for which the client has enrolled for the study period, together with the total number of units of study for which the client had previously enrolled for the purposes of the course, does not exceed 28; and


    (c) the client has successfully completed half the number of units:


    (i) for which he or she had enrolled for the purposes of the course since 1 January 1994; and

    (ii) in respect of which results are known 14 days before the census day for the study period; and


    (d) on the day (enrolment day ) on which the client completes his or her enrolment, the client is:


    (i) an Australian citizen; or

    (ii) a person who has been granted an approval to become an Australian citizen under section 24 of the Australian Citizenship Act 2007 and who has yet to make the pledge referred to in section 26 of that Act; or

    (iii) a New Zealand citizen who is the holder of a permanent visa, is present in Australia and:

    (A) does not satisfy the prescribed residency requirements; or

    (B) if, on enrolment day, he or she satisfies the prescribed residency requirements - first satisfied those requirements on a day within the period of 12 months immediately preceding enrolment day; or

    (iv) a person (other than a New Zealand citizen) who is a permanent resident, is present in Australia and:

    (A) does not satisfy the prescribed residency requirements; or

    (B) if, on enrolment day, he or she satisfies the prescribed residency requirements - first satisfied those requirements on a day within the period of 12 months immediately preceding enrolment day.

    101(2)  
    For the purposes of subsection (1), the prescribed residency requirements for a person on a particular day are that the person:


    (a) should have been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than one year during the period of 2 years immediately preceding that day; and


    (b) should have been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than 2 years during the period of 5 years immediately preceding that day.

    SECTION 103   103   STANDARD STUDY LOAD  
    The standard study load of an eligible client of the Agency for a study period for which the client enrols for the purposes of the course of study he or she is undertaking is the number of units of study that, together with the number of other units of study (if any) for which he or she was enrolled for the purposes of the course in previous study periods having census dates occurring in the same calendar year as the census date for the first-mentioned study period, equals 8.

    PART 5.2 - CHARGES  

    Division 1 - Payment of basic charges  

    SECTION 104   BASIC CHARGE  

    104(1)  
    The basic charge for a unit of study is the lesser of:


    (a) the statutory amount, worked out under this section; and


    (b) the amount that the Agency charges for the unit.

    104(2)  
    The statutory amount is $332 for 1997.

    104(3)  
    The statutory amount for a later year is worked out by:


    (a) multiplying the statutory amount for the year before that later year by the factor that applies to the later year under subsection 40(3); and


    (b) disregarding any cents.

    104(4)  
    For each year from 1998 onwards, the Minister must:


    (a) work out the statutory amount for the year concerned; and


    (b) before the start of the year, publish a notice in the Gazette specifying the statutory amount and the factor that was used to work it out.

    SECTION 105   ELIGIBLE CLIENT MAY JOIN DEFERRED PAYMENT SCHEME  

    105(1)  
    An eligible client of the Agency may, at any time, choose to participate in the deferred payment scheme by complying with subsections (2) and (3).

    105(2)  
    The eligible client must sign, and give to an appropriate officer, a document in the approved form:


    (a) stating that the client asks the Commonwealth, in the event that on the census date for any study period the client:


    (i) is an eligible client of the Agency; and

    (ii) is enrolled to undertake in the study period units of study for the purposes of an approved course of study; and

    (iii) has not paid the basic charges in respect of those units of study or, if the enrolment for the study period is in respect of a number of units of study that exceeds the client's standard study load for the study period, has not paid the basic charges in respect of the number of units of study included in that standard study load;
    to lend to the client the amount of the charges and use the amount so lent to pay the charges on behalf of the client; and


    (b) acknowledging that, if the Commonwealth complies with the request, the client will be liable to make payments under Chapter 5A.

    105(3)  
    The client must at the same time give to an appropriate officer:


    (a) a notice specifying a number that the Agency is satisfied (in accordance with guidelines issued by the Commissioner) is the tax file number issued by the Commissioner to the client; or


    (b) a certificate in a form approved by the Commissioner stating that the client has applied to the Commissioner asking the Commissioner to issue a tax file number to the client.

    SECTION 106CA   Electronic communications between clients and Agency  

    106CA(1)  
    Sections 56C, 56D and 56E apply for the purposes of this Chapter as if a reference in those sections to a person, thing or provision mentioned in the second column of an item of the table were a reference to the person, thing or provision mentioned in the third column of the item.


    How sections 56C, 56D and 56E apply
    Item Person, thing or provision mentioned in section 56C, 56D or 56E Equivalent person, thing or provision for this Chapter
    1 Student Client
    2 Appropriate officer of an institution Appropriate officer of the Agency
    3 Institution Agency
    4 Paragraph 41(1)(b) Subsection 105(2)
    5 Paragraph 41B(2)(a) Paragraph 105(3)(a)
    6 Paragraph 41B(2)(b) Paragraph 105(3)(b)
    7 Section 54 Section 106B
    8 Section 55 Section 106C

    106CA(2)  
    This section does not affect the way in which sections 56C, 56D and 56E apply apart from this section.

    SECTION 106JA   PELS semester debt  

    106JA(1)  
    When the Commonwealth under section 98G:


    (a) makes a loan to a person; and


    (b) uses the amount lent to make a payment in discharge of the person's liability to pay fees in respect of a course of study in respect of a semester;

    the person incurs a PELS semester debt to the Commonwealth equal to the amount of the loan.

    106JA(2)  
    The PELS semester debt is taken to have been incurred immediately after the census date for the course of study for the semester, whether or not the Commonwealth has made a payment to the institution in respect of the fees.

    CHAPTER 5A - REPAYMENT OF LOANS MADE UNDER CHAPTERS 4, 4A, 4B and 5  

    PART 5A.1 - PRELIMINARY  

    SECTION 106H   INTERPRETATION  

    106H(1)  


    In this Chapter, unless the contrary intention appears:

    accumulated HEC debt
    has the meaning given by section 106N.

    BOTP study period debt
    has the meaning given by section 106JB.

    census date
    means:


    (a) when used in relation to a loan under section 57 or 98G - census date within the meaning of Chapter 4; or


    (b) when used in relation to a loan under section 98ZA - census date within the meaning of Chapter 4B; or


    (c) when used in relation to a loan under section 106D - census date within the meaning of Chapter 5.

    fees
    means:


    (a) when used in relation to a loan under section 98G - fees as defined by section 3; or


    (b) when used in relation to a loan under section 98ZA - fees within the meaning of Chapter 4B.

    HEC repayment income
    of a person means:


    (a) in relation to the year of income ending on 30 June 1996 or any preceding year of income - an amount equal to the taxable income of the person in respect of that year; and


    (b) in relation to the year of income ending on 30 June 1997 - the sum of:


    (i) the taxable income of the person in respect of that year; and

    (ii) if, in respect of that year of income, a deduction has been allowed from the assessable income of the person under former section 51 of the Income Tax Assessment Act 1936 for interest on money borrowed by the person to finance rental property investments and that deduction or, if another deduction has been allowed (otherwise than for interest on money borrowed) from the assessable income of the person under that Act in respect of the rental property investments, the total of those deductions exceeds the rental income of the person - the amount of the excess; and


    (c) in relation to the 1997-98 or 1998-99 year of income - the sum of:


    (i) the person's taxable income for that year of income; and

    (ii) if the person has deducted under section 8-1 of the Income Tax Assessment Act 1997 for that year of income an amount for interest on money the person borrowed to finance rental property investments, and the total of that amount and any other amounts the person has deducted under that Act or the Income Tax Assessment Act 1936 (otherwise than for interest on money borrowed) in respect of the rental property exceeds the rental income of the person - the amount of the excess; and


    (d) in relation to the 1999-2000 year of income or any later year of income - the sum of:


    (i) the person's taxable income for that year of income; and

    (ii) if the person has deducted under section 8-1 of the Income Tax Assessment Act 1997 for that year of income an amount for interest on money the person borrowed to finance rental property investments, and the total of that amount and any other amounts the person has deducted under that Act or the Income Tax Assessment Act 1936 (otherwise than for interest on money borrowed) in respect of the rental property exceeds the rental income of the person - the amount of the excess; and

    (iii) if the person is an employee (within the meaning of the Fringe Benefits Tax Assessment Act 1986) who has a reportable fringe benefits total (as defined in that Act) for the year of income - the reportable fringe benefits total for the year of income.

    HEC repayment income of a person

    HEC semester debt
    has the meaning given by section 106J.

    OL study period debt
    has the meaning given by section 106K.

    PELS semester debt
    has the meaning given by section 106JA.

    semester debt
    means:


    (a) an HEC semester debt; or


    (b) an OL study period debt; or


    (c) a PELS semester debt; or


    (d) a BOTP study period debt.

    study period
    means:


    (a) when used in relation to a loan under section 98ZA - study period within the meaning of Chapter 4B; or


    (b) when used in relation to a loan under section 106D - study period within the meaning of Chapter 5.

    106H(2)  


    Expressions used in this Chapter that are defined in Chapter 4, 4A, 4B or 5 have in this Chapter, unless the contrary intention appears, the same meanings as in Chapter 4, 4A, 4B or 5 (as the case may be).

    106H(3)  
    Expressions used in this Chapter that are defined in the Income Tax Assessment Act 1936 have in this Chapter, unless the contrary intention appears, the same meanings as in that Act.

    SECTION 106I   106I   OBJECT OF PART  
    This Part makes provision for the repayment to the Commonwealth of loans made by the Commonwealth:


    (a) to students under Chapter 4; or


    (aa) to students under Chapter 4A; or


    (ab) to students under Chapter 4B; or


    (b) to eligible clients of the Agency under Chapter 5.

    PART 5A.2 - NATURE OF INDEBTEDNESS  

    SECTION 106J   HEC SEMESTER DEBT  

    106J(1)  
    When the Commonwealth under section 57:


    (a) makes a loan to a person; and


    (b) uses the amount lent to make a payment in discharge of the person's liability to pay a contribution in respect of a course of study in respect of a semester;

    the person incurs an HEC semester debt to the Commonwealth equal to the amount of the loan.

    106J(2)  
    The HEC semester debt is taken to have been incurred immediately after the census date in respect of the course of study in respect of the semester, whether or not the Commonwealth has made a payment to the institution in respect of the contribution.

    SECTION 106JA   PELS semester debt  

    106JA(1)  
    When the Commonwealth under section 98G:


    (a) makes a loan to a person; and


    (b) uses the amount lent to make a payment in discharge of the person's liability to pay fees in respect of a course of study in respect of a semester;

    the person incurs a PELS semester debt to the Commonwealth equal to the amount of the loan.

    106JA(2)  
    The PELS semester debt is taken to have been incurred immediately after the census date for the course of study for the semester, whether or not the Commonwealth has made a payment to the institution in respect of the fees.

    SECTION 106JB   BOTP SEMESTER DEBT  

    106JB(1)  
    When the Commonwealth under section 98ZA:


    (a) makes a loan to a person; and


    (b) uses the amount lent to make a payment in discharge of the person's liability to pay fees in respect of a BOTP course in respect of a study period;

    the person incurs a BOTP study period debt to the Commonwealth equal to the amount of the loan.

    106JB(2)  
    The BOTP study period debt is taken to have been incurred immediately after the census date for the BOTP course for the study period, whether or not the Commonwealth has made a payment to the institution in respect of the fees.

    SECTION 106K   OL STUDY PERIOD DEBT  

    106K(1)  
    When the Commonwealth under section 106D:


    (a) makes a loan to a person; and


    (b) uses the amount lent to pay the basic charges that are payable by the person to the Agency in respect of units of study for which the person is enrolled in respect of a study period;

    the person incurs an OL study period debt to the Commonwealth equal to the amount of the loan.

    106K(2)  
    The OL study period debt is taken to have been incurred immediately after the census date for the study period, whether or not the Commonwealth has made a payment to the Agency in respect of the charges.

    SECTION 106KA   106KA   SEMESTER DEBTS DO NOT ARISE AFTER 1 JANUARY 2005  


    Despite sections 106J to 106K, a person does not incur a semester debt if the census date, in respect of the course of study or study period in respect of which the debt would (apart from this section) arise, occurs on or after 1 January 2005.

    SECTION 106L   POWER OF SECRETARY TO REMIT DEBT IN SPECIAL CIRCUMSTANCES  

    106L(1)  


    The Secretary may, in writing, remit the whole or part of a person's HEC semester debt or PELS semester debt if:


    (a) the person has not completed the course requirements for his or her course of study in respect of a semester during the semester or during the year in which the semester occurred; and


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


    (c) the person applies in writing to the Secretary for remission of the debt within 12 months after the person's withdrawal day in relation to a unit in the person's course of study for the semester (see subsection (3B)).

    106L(2)  


    The Secretary may, in writing, remit the whole or part of a person's BOTP study period debt or OL study period debt if:


    (a) the person has not completed the BOTP course, or one or more of the units of study for which he or she was enrolled for the study period; and


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


    (c) the person applies in writing to the Secretary for remission of the debt within 12 months after the person's withdrawal day in relation to the BOTP course, or a unit of study, in which the person was enrolled for the study period (see subsection (3B)).

    106L(3)  


    For the purposes of this section, special circumstances , in relation to a person, include circumstances that the Secretary is satisfied:


    (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 course of study for the semester or the study period (as the case requires); and


    (c) make it impracticable for the person to complete the course requirements for the course of study for the semester during the semester or during the year in which the semester occurs, or the units of study for which he or she was enrolled for the study period (as the case requires).

    Note: For meaning of census date , see sections 34 (HECS) and 99 (OLDPS).

    106L(3A)  


    The Secretary may issue guidelines relating to circumstances in which the Secretary will be satisfied of a matter referred to in paragraph (3)(a), (b) or (c). A decision of the Secretary under subsection (1) or (2) must be in accordance with any such guidelines.

    106L(3B)  


    For the purposes of this section, a person's withdrawal day , in relation to a unit in a course of study for a semester, or a BOTP course, or a unit of study for a study period, is:


    (a) if the person:


    (i) has incurred a semester debt for the course of study for the semester; and

    (ii) withdraws his or her enrolment in respect of the semester for the unit of study; and

    (iii) the institution at which the person was enrolled gives notice to the person that the withdrawal has taken effect;
    the day specified by the institution in the notice as the day the withdrawal takes effect; or


    (b) if:


    (i) the person has incurred a semester debt for the course of study for the semester; and

    (ii) paragraph (a) does not apply to the person; and

    (iii) the person does not complete the course requirements for the course of study for the semester during the semester or during the year in which the semester occurred;
    the last day of the semester; or


    (ba) if the person:


    (i) has incurred a BOTP semester debt for the BOTP course; and

    (ii) withdraws his or her enrolment for the course for the study period; and

    (iii) the institution at which the person was enrolled gives notice to the person that the withdrawal has taken effect;
    the day specified by the institution in the notice as the day the withdrawal takes effect; or


    (bb) if:


    (i) the person has incurred a BOTP semester debt; and

    (ii) paragraph (ba) does not apply to the person; and

    (iii) the person does not complete the BOTP course for which he or she was enrolled for the study period;
    the last day of the study period; or


    (c) if the person:


    (i) has incurred an OL study period debt for the unit of study; and

    (ii) withdraws his or her enrolment for the unit of study for the study period; and

    (iii) the Agency gives notice to the person that the withdrawal has taken effect;
    the day specified by the Agency in the notice as the day the withdrawal takes effect; or


    (d) if:


    (i) the person has incurred an OL study period debt; and

    (ii) paragraph (c) does not apply to the person; and

    (iii) the person does not complete the unit of study for which he or she was enrolled for the study period;
    the last day of the study period.

    106L(4)  
    On receiving an application, the Secretary must as soon as practicable consider the matter to which the application relates and notify the applicant of the decision on the application.

    106L(5)  
    The notice of the decision must include:


    (a) a statement of the reasons for the decision; and


    (b) a statement to the effect that:


    (i) if the applicant is dissatisfied with the decision of the Secretary the applicant may, within 28 days of receiving the notice, apply under section 106M for reconsideration of the decision; and

    (ii) if the applicant is dissatisfied with the decision on the reconsideration, the applicant may, subject to the Administrative Appeals Tribunal Act 1975, make application to the Tribunal for a review of the decision on the reconsideration.

    106L(6)  
    A failure to comply with subsection (5) does not affect the validity of the notice or of the decision notified.

    106L(7)  
    If the Secretary remits the whole or a part of a semester debt, the Secretary must give to the Commissioner written notice setting out:


    (a) the name of the person whose debt is remitted; and


    (b) the amount remitted; and


    (c) any other particular that the Commissioner reasonably requires.

    SECTION 106M   RECONSIDERATION OF DECISION AND APPEAL TO ADMINISTRATIVE APPEALS TRIBUNAL  

    106M(1)  
    If:


    (a) a person has applied under section 106L for remission of the whole or a part of a semester debt; and


    (b) the Secretary notifies the person that he or she has decided not to remit the debt or not to remit as much of the debt as the person sought to have remitted;

    the person may apply to the Secretary for a reconsideration of the decision.

    106M(2)  
    The application must be made in writing and must be given or sent to the Secretary within 28 days after the person has received notice of the decision.

    106M(3)  
    On receiving the application, the Secretary must, as soon as practicable:


    (a) consider the application and:


    (i) confirm the original decision; or

    (ii) vary the original decision; or

    (iii) revoke the original decision and substitute another decision; and


    (b) notify the applicant of the decision on the reconsideration.

    106M(4)  
    The notice of the decision must include:


    (a) a statement of the reasons for the decision; and


    (b) a statement to the effect that, if the applicant is dissatisfied with the decision, the applicant may, within 28 days after receiving the notification, and subject to the Administrative Appeals Tribunal Act 1975, apply to the Tribunal for review of the decision.

    106M(5)  
    A failure to comply with subsection (4) does not affect the validity of the notice or of the decision notified.

    106M(6)  
    Application may be made to the Administrative Appeals Tribunal for a review of a decision of the Secretary under subsection (3).

    SECTION 106MA   FURTHER REVIEW OF RECONSIDERATION DECISION CONCERNING REMISSION OF SEMESTER DEBT  

    106MA(1)  
    If:


    (a) application is made to the Administrative Appeals Tribunal for review of a decision (the reconsideration decision ) of the Secretary under subsection 106M(3); and


    (b) information is provided for the purposes of that review that was not provided to the Secretary;

    the Secretary may review the reconsideration decision at any time before the determination of the application for review to the Tribunal.

    106MA(2)  
    On reviewing the reconsideration decision, and taking into account the information provided for the purposes of the application to the Administrative Appeals Tribunal, the Secretary must, as soon as practicable:


    (a) confirm the reconsideration decision; or


    (b) vary the reconsideration decision; or


    (c) revoke the reconsideration decision and substitute a decision to remit the semester debt;

    and notify the applicant and the Registrar of the Tribunal of the decision made on that review.

    106MA(3)  
    The notice of the decision must include a statement of the reasons for the decision.

    106MA(4)  
    A failure to comply with subsection (3) does not affect the validity of the notice or of the decision notified.

    106MA(5)  
    If, on a review of a reconsideration decision, the Secretary varies the reconsideration decision, the application to the Administrative Appeals Tribunal is taken to be an application for review of the reconsideration decision as so varied unless the applicant, by notice in writing to the Registrar of the Tribunal, withdraws the application.

    106MA(6)  
    If, on a review of the reconsideration decision, the Secretary decides to revoke the reconsideration decision and to substitute a decision to remit the semester debt:


    (a) the Secretary must notify the Administrative Appeals Tribunal to that effect; and


    (b) the application to the Tribunal is taken to have been withdrawn by the applicant.

    SECTION 106N   CALCULATION OF ACCUMULATED HEC DEBT  

    106N(1)  


    If a person incurred a semester debt or debts before 1 June in a year (the relevant date ) but after 1 June in the immediately preceding year, the person incurs on the relevant date an accumulated HEC debt to the Commonwealth of an amount equal to:


    (a) that debt; or


    (b) the total of those debts;

    less any amounts paid before the relevant date in reduction of that debt or those debts.

    106N(2)  
    If on 1 June in a year ( relevant date ) a person owes to the Commonwealth:


    (a) an semester debt or debts, incurred before 1 June in the immediately preceding year (the earlier date ); and


    (b) a semester debt or debts incurred after the earlier date;

    the person incurs on the relevant date an accumulated HEC debt that is made up of:


    (c) the adjusted accumulated HEC debt of the person at the earlier date (see subsection (3)) multiplied by the factor worked out under subsection (5); and


    (d) the debt or debts referred to in paragraph (b).

    106N(2A)  


    A person cannot incur an accumulated HEC debt on 1 June 2006 or on 1 June in any later year.
    Note:

    A person's accumulated HELP debt, worked out under section 140-25 of the Higher Education Support Act 2003, for the financial year starting on 1 July 2005 can include an amount for the person's accumulated HEC debt incurred on 1 June 2005: see Part 3 of Schedule 1 to the Higher Education Support (Transitional Provisions and Consequential Amendments) Act 2003.

    106N(3)  
    For the purposes of paragraph (2)(c), the adjusted accumulated HEC debt of the person at the earlier date is the amount worked out by using the formula:


    A - ( B + C + D - E )

    where:

    A is the accumulated HEC debt of the person as at the earlier date;

    B is the sum of:

  • (a) any HEC assessment debt or HEC assessment debts of the person assessed on or after the earlier date and before the relevant date, excluding any such HEC assessment debt of the person assessed as a result of a return given before the earlier date; and
  • (b) any HEC assessment debt or HEC assessment debts of the person assessed on or after the relevant date as a result of a return given before the relevant date;
  • C is any amount, or the sum of any amounts, by which the person's accumulated HEC debt at the earlier date is to be reduced because of any payment or payments made (otherwise than in discharge of an HEC assessment debt) on or after the earlier date and before the relevant date.

    D is any amount, or the sum of any amounts, by which (whether as a result of an increase in the person's taxable income of a year of income or otherwise) any HEC assessment debt of the person is increased by an amendment of the relevant assessment made on or after the earlier date and before the relevant date; and

    E is any amount, or the sum of any amounts, by which (whether as a result of a reduction in the person's taxable income of a year of income or otherwise) any HEC assessment debt of the person is reduced by an amendment of the relevant assessment made on or after the earlier date and before the relevant date.

    106N(4)  
    For the purposes of subsection (3), an assessment or an amendment of an assessment is taken to have been made on the day specified in the notice of assessment or notice of amended assessment (as the case may be) as the date of that notice.

    106N(5)  
    The factor to be used for the purposes of paragraph (2)(c) in calculating the accumulated HEC debt of a person at 1 June in a year is the number (calculated to 3 decimal places) worked out, as at the date on which the index number in respect of the March quarter immediately preceding that 1 June was first published, by dividing the sum of:


    (a) the index number in respect of that March quarter; and


    (b) the index numbers in respect of the 3 quarters that immediately preceded that quarter;

    by the sum of:


    (c) the index number in respect of the March quarter immediately preceding 1 June in the year that next preceded that year; and


    (d) the index numbers in respect of the 3 quarters that immediately preceded that last-mentioned quarter.

    106N(6)  
    Subject to subsection (7), if at any time, whether before or after the commencement of this section, the Australian Statistician has published or publishes an index number in respect of a quarter in substitution for an index number previously published by the Australian Statistician in respect of that quarter, the publication of the later index number is to be disregarded for the purposes of this section.

    106N(7)  
    If, at any time, whether before or after the commencement of this section, the Australian Statistician has changed or changes the reference base for the Consumer Price Index, then, for the purposes of the application of this section after the change took place or takes place, regard is to be had only to index numbers published in terms of the new reference base.

    106N(8)  
    If the factor worked out in accordance with subsection (5) in calculating the accumulated HEC debt of a person at 1 June in a year would, if it were calculated to 4 decimal places, end with a number greater than 4, the factor worked out in accordance with that subsection in making that calculation is taken to be the factor calculated to 3 decimal places in accordance with that subsection and increased by 0.001.

    106N(9)  
    The Commissioner must cause to be published before 1 June in each year the factor worked out in accordance with subsection (5) (as affected by subsection (8)) in relation to the calculation of the accumulated HEC debt of a person at that date.

    106N(10)  
    If, apart from this subsection, the accumulated HEC debt of a person at 1 June in a year would be an amount consisting of a number of whole dollars and a number of cents, the number of cents must be disregarded.

    106N(11)  
    In this section:

    index number
    , in relation to a quarter, means the All Groups Consumer Price Index number, being the weighted average of the 8 capital cities, published by the Australian Statistician in respect of that quarter.

    SECTION 106O   ACCUMULATED HEC DEBT DISCHARGES EARLIER DEBTS  

    106O(1)  
    The accumulated HEC debt that a person incurs on 1 June in a year ( relevant date ) discharges, or discharges the unpaid part of:


    (a) any accumulated HEC debt that the person incurred on the preceding 1 June ( earlier date ); and


    (b) any semester debt that was incurred by the person on or after the earlier date and before the relevant date.

    106O(2)  
    Nothing in subsection (1) affects the application of section 106L or 106N.

    PART 5A.3 - DISCHARGE OF INDEBTEDNESS  

    Division 1 - Voluntary discharge of indebtedness  

    SECTION 106P   VOLUNTARY PAYMENTS IN RESPECT OF DEBTS  

    106P(1)  
    Subject to this Division, if a person owes a debt to the Commonwealth under this Chapter, the person may at any time make a payment in respect of that debt.

    106P(2)  
    The payment must be made to the Commissioner.

    SECTION 106PA   REPAYMENT OF DEBT UNDER THIS CHAPTER  

    106PA(1)  
    This section applies in relation to the repayment of any debt under this Chapter other than an HEC assessment debt.

    106PA(2)  


    106PA(3)  


    The debtor is taken to pay off the total debt if he or she pays in respect of the debt an amount worked out by using the formula:


    Amount of debt outstanding
    1.1

    106PA(4)  


    Subject to subsection (5), if a person pays an amount of $500 or more in part settlement of a debt, the outstanding amount of the debt is to be reduced by the amount worked out by using the formula:


    Amount of payment × 1.1

    Example: If a person owes a semester debt of $1,700, and the person makes a payment of $600, the debt is to be reduced by an amount of $660 (i.e. $600 × 1.1), leaving a balance of $1,040 ($1,700 - $660) to be paid.

    106PA(5)  


    Subsections (3) and (4) do not apply in respect of a payment in respect of a debt if, in addition to that debt, the debtor owes an HEC assessment debt to the Commonwealth.

    106PA(6)  
    If an amount worked out by using the formula in subsection (3) or (4) is an amount made up of a number of dollars and cents, then:


    (a) if the amount of cents in the amount is 50 - the amount is to be rounded up to the nearest dollar; and


    (b) in any other case - the amount is to be rounded up or down to the nearest dollar.

    Division 1A - Voluntary repayments of accumulated HEC debt  

    SECTION 106PB   NOTICE TO COMMISSIONER  

    106PB(1)  
    If a person owes a debt to the Commonwealth under this Chapter, the person may, on or before 31 December 1996, by writing in an approved form, notify the Commissioner that the person elects to make payments in reduction of his or her accumulated HEC debt when his or her HEC repayment income in respect of a year of income exceeds the prescribed amount for that year of income for the purposes of section 106PC.

    106PB(2)  
    A person who has made an election under subsection (1) may, at any time before the person becomes liable to pay an amount under section 106PC, revoke the election by notice in writing in an approved form to the Commissioner.

    SECTION 106PC   VOLUNTARY PAYMENTS IN RESPECT OF ACCUMULATED HEC DEBT  

    106PC(1A)  
    Subsection (1) does not apply in relation to the 1997-98 year of income or any later year of income.

    106PC(1)  
    If:


    (a) a person has made an election under subsection 106PB(1) and the election has not been revoked under subsection 106PB(2); and


    (b) the HEC repayment income of the person in respect of a year of income:


    (i) exceeds the prescribed amount for the year of income for the purposes of this section (see subsection (3)); but

    (ii) does not exceed the minimum prescribed amount for the year of income for the purposes of subsection 106Q(1); and


    (c) on 1 June immediately preceding the making of an assessment in respect of the person's income of that year of income, the person had an accumulated HEC debt;

    the person is liable to pay in accordance with this Chapter to the Commonwealth in reduction of his or her relevant debt (see subsection (3)) an amount equal to so much of that relevant debt as does not exceed 2% of the person's HEC repayment income.

    106PC(2)  
    On the person first becoming liable to pay an amount to the Commonwealth under subsection (1), an additional amount equal to 10% of the person's relevant debt is taken to have been paid in reduction of that debt.

    106PC(3)  
    In subsections (1) and (2):

    relevant debt
    in relation to a person means:


    (a) subject to paragraph (b) of this subsection - the person's accumulated HEC debt referred to in paragraph (1)(c); or


    (b) if an amount or amounts have been paid in reduction of that debt, or an amount is taken (under subsection (2)) to have been paid in reduction of that debt, or an amount or amounts have been assessed under section 106T to be payable in respect of that debt - the amount (if any) remaining after deducting from that debt the amount so paid or taken to have been paid or the sum of the amounts so paid or assessed to be payable.

    106PC(4)  
    A reference in paragraph (3)(b) to an amount assessed under section 106T to be payable in respect of a person's accumulated HEC debt is, if the amount has been increased or reduced by an amendment of the relevant assessment, a reference to the increased or the reduced amount (as the case may be).

    106PC(5)  
    For the purposes of this section, the prescribed amount is:


    (a) in the case of the year of income ending 30 June 1996 - $20,000; or


    (b) in the case of a subsequent year of income - the number of whole dollars of the amount worked out by using the formula:


    52 × AWE
    5
    × 20,000
    27,674

    where:

    AWE is the sum of:

  • (i) the average weekly earnings for all employees for the reference period in the December quarter immediately preceding that year of income, as published by the Australian Statistician; and
  • (ii) the average weekly earnings for all employees for the reference period in each of the 4 quarters immediately before that December quarter, as published by the Australian Statistician.
  • 106PC(6)  
    For the purposes of subsection (5), the reference period in a particular quarter in a year is the period described by the Australian Statistician as the pay period ending on or before a specified day that is the third Friday of the middle month of that quarter.

    106PC(7)  
    The Minister must cause to be published in the Gazette:


    (a) as soon as possible after the commencement of this section, the prescribed amount in respect of the year of income ending on 30 June 1996; and


    (b) before the start of each following year of income, the prescribed amount in respect of that year of income.

    Division 2 - Requirement to discharge indebtedness  

    SECTION 106Q   COMPULSORY PAYMENTS IN RESPECT OF ACCUMULATED HEC DEBT  

    106Q(1)  


    Subject to subsections (7) and (8), if:


    (a) the HEC repayment income of a person in respect of a year of income exceeds the minimum prescribed amount for the year of income (see subsection (4)); and


    (b) on 1 June immediately preceding the making of an assessment in respect of the person's income of that year of income, the person:


    (i) had an accumulated HEC debt; or

    (ii) if the 1 June occurs in the year 2006 or a later year - had an accumulated HELP debt;

    the person is liable to pay in accordance with this Chapter to the Commonwealth in reduction of his or her relevant debt (see subsection (2)) an amount equal to so much of that relevant debt as does not exceed the percentage of the person's HEC repayment income that is applicable in accordance with the following table:


    TABLE
    Item No. Person's HEC repayment income in respect of year of income Percentage applicable
    1. Not exceeding the first intermediate prescribed amount for the year of income (see subsection (4)) 3%
    2. Exceeding the first intermediate prescribed amount for the year of income but not exceeding the second intermediate prescribed amount for the year of income (see subsection (4)) 3.5%
    3. Exceeding the second intermediate prescribed amount for the year of income but not exceeding the third intermediate prescribed amount for the year of income (see subsection (4)) 4%
    4. Exceeding the third intermediate prescribed amount for the year of income but not exceeding the fourth intermediate prescribed amount for the year of income (see subsection (4)) 4.5%
    5. Exceeding the fourth intermediate prescribed amount for the year of income but not exceeding the fifth intermediate prescribed amount for the year of income (see subsection (4)) 5%
    6. Exceeding the fifth intermediate prescribed amount for the year of income but not exceeding the maximum prescribed amount (see subsection (4)) 5.5%
    7. Exceeding the maximum prescribed amount for the year of income 6%

    106Q(2)  
    In subsection (1), relevant debt , in relation to a person, means:


    (a) subject to paragraph (b) of this subsection, the person's accumulated HEC debt referred to in paragraph (1)(b); or


    (b) if an amount or amounts have been paid in reduction of that debt, or an amount or amounts have been assessed under section 106T to be payable in respect of that debt - the amount (if any) remaining after deducting from that debt the amount, or the sum of the amounts, so paid or assessed to be payable.

    106Q(3)  
    A reference in paragraph (2)(b) to an amount assessed under section 106T to be payable in respect of a person's accumulated HEC debt is, if the amount has been increased or reduced by an amendment of the relevant assessment, a reference to the increased or reduced amount (as the case may be).

    106Q(4)  
    For the purposes of this section:


    (a) the minimum prescribed amount or MPA for a year of income is:


    (i) for the 1997-98 year of income - $20,700; or

    (ii) for a later year of income (other than the 2004-05 year of income) - the amount worked out using the formula:


    $20,700 × AWE for the year of income
    AWE for the 1997-98 year of income


    ; or

    (iii) for the 2004-05 year of income - $35,000;


    (b) the first intermediate prescribed amount for a year of income is:


    (i) for the 1997-98 year of income - $21,830; or

    (ii) for a later year of income - the amount worked out using the formula:


    MPA for the year of income × 21,830
    20,700


    (c) the second intermediate prescribed amount for a year of income is:


    (i) for the 1997-98 year of income - $23,524; or

    (ii) for a later year of income - the amount worked out using the formula:


    MPA for the year of income × 23,524
    20,700


    (d) the third intermediate prescribed amount for a year of income is:


    (i) for the 1997-98 year of income - $27,288; or

    (ii) for a later year of income - the amount worked out using the formula:


    MPA for the year of income × 27,288
    20,700


    (e) the fourth intermediate prescribed amount for a year of income is:


    (i) for the 1997-98 year of income - $32,934; or

    (ii) for a later year of income - the amount worked out using the formula:


    (f) the fifth intermediate prescribed amount for a year of income is:


    (i) for the 1997-98 year of income - $34,665; or

    (ii) for a later year of income - the amount worked out using the formula:


    MPA for the year of income × 34,665
    20,700


    (g) the maximum prescribed amount for a year of income is:


    (i) for the 1997-98 year of income - $37,262; or

    (ii) for a later year of income - the amount worked out using the formula:


    MPA for the year of income × 37,262
    20,700

    106Q(4A)  
    For the purposes of paragraph (4)(a), AWE for a year of income is the number of dollars in the sum of:


    (a) the average weekly earnings for all employees for the reference period in the December quarter immediately before the year of income, as published by the Australian Statistician; and


    (b) the average weekly earnings for all employees for the reference period in each of the 4 quarters immediately before that December quarter, as published by the Australian Statistician.

    106Q(4B)  
    If an amount worked out for the purposes of subsection (4) includes any cents, the cents must be disregarded.

    106Q(5)  
    For the purposes of subsection (4A), the reference period in a particular quarter in a year is the period described by the Australian Statistician as the pay period ending on or before a specified day that is the third Friday of the middle month of that quarter.

    106Q(6)  
    The Minister must cause to be published in the Gazette:


    (a) as soon as possible after the commencement of this section, the minimum prescribed amount, the intermediate prescribed amounts and the maximum prescribed amount, in respect of the year of income ending on 30 June 1997; and


    (b) before the start of the 1998-99 year of income or a later year of income, the minimum prescribed amount, the intermediate prescribed amounts and the maximum prescribed amount in respect of that year of income.

    106Q(7)  


    Subsection (1) does not require a person to pay an amount for a year of income if, under section 8 of the Medicare Levy Act 1986:


    (a) no Medicare levy is payable by the person on the person's taxable income for the year of income; or


    (b) the amount of Medicare levy payable by the person on the person's taxable income for the year of income is reduced.

    106Q(8)  


    This section applies in relation to the 2004-05 year of income as if the table in subsection (1) were omitted and the following table were substituted:


    HEC repayment thresholds for the 2004-05 year of income
    Item Person's HEC repayment income in respect of year of income Percentage applied
    1 More than $35,000, but less than $38,988 4%
    2 $38,988 or more, but less than $42,973 4.5%
    3 $42,973 or more, but less than $45,233 5%
    4 $45,233 or more, but less than $48,622 5.5%
    5 $48,622or more, but less than $52,658 6%
    6 $52,658 or more, but less than $55,430 6.5%
    7 $55,430 or more, but less than $60,972 7%
    8 $60,972 or more, but less than $65,000 7.5%
    9 $65,000 or more 8%

    Division 3 - Returns and assessments  

    SECTION 106R   AGENCY ETC. TO PROVIDE INFORMATION TO COMMISSIONER  

    106R(1)  
    The Agency must give to the Commissioner, if asked by the Commissioner to do so, any information in its possession relating to its eligible clients that the Commonwealth reasonably requires for the purposes of this Chapter.

    106R(3)  
    An institution must give to the Commissioner, if asked by the Commissioner to do so, any information in its possession relating to students in relation to designated courses of study at the institution that the Commissioner reasonably requires for the purposes of this Chapter.

    106R(4)  


    An institution must give to the Commissioner, if asked by the Commissioner to do so, any information in its possession relating to students in relation to eligible post-graduate courses of study at the institution that the Commissioner reasonably requires for the purposes of this Chapter.

    106R(5)  


    An institution must give to the Commissioner, if asked by the Commissioner to do so, any information in its possession relating to students in relation to BOTP courses at the institution that the Commissioner reasonably requires for the purposes of this Chapter.

    SECTION 106S   106S   REPEALED  

    SECTION 106T   106T   ASSESSMENT  
    The Commissioner may, from any information in the Commissioner's possession, whether from a return or otherwise, make an assessment of:


    (a) the amount of the accumulated HEC debt of a person at 1 June immediately before the making of the assessment; and


    (b) the amount required to be paid in respect of that accumulated HEC debt under section 106PC or 106Q.

    SECTION 106U   APPLICATION OF TAX LEGISLATION  

    106U(1)  


    Subject to this Part, Part IV, and Division 1 of Part VI, of the Income Tax Assessment Act 1936 ( Assessment Act ), and Part 4-15 in Schedule 1 to the Taxation Administration Act 1953, apply, so far as they are capable of application, in relation to an HEC assessment debt of a person as if it were income tax assessed to be payable by a taxpayer by an assessment made under Part IV of the Assessment Act.
    Note:

    Part 4-15 in Schedule 1 to the Taxation Administration Act 1953 deals with collection and recovery of amounts on and after 1 July 2000, replacing some provisions in Division 1 of Part VI of the Income Tax Assessment Act 1936.

    106U(2)  


    106U(2A)  


    Part 4-25 in Schedule 1 to the Taxation Administration Act 1953 has effect as if:


    (a) any HEC assessment debt of a person were income tax payable by the person in respect of the year of income in respect of which the assessment of that debt was made; and


    (b) Chapters 4, 4A, 4B, 5, 5A and 5B of this Act were income tax laws.

    106U(2B)  


    Subsection (2A) does not have the effect of making a person liable to a penalty for any act or omission that happened before the commencement of thissubsection.

    106U(3)  
    Part 2-5 (other than section 12-55 and Subdivisions 12-E, 12-F and 12-G) in Schedule 1 to the Taxation Administration Act 1953 applies, so far as it is capable of application, in relation to the collection by instalments of an HEC assessment debt of a person as if the HEC assessment debt were income tax.

    106U(4)  


    (Repelaed by No 101 of 2006)

    106U(5)  
    Division 45 in Schedule 1 to the Taxation Administration Act 1953 applies, so far as is capable of application, in relation to the collection of an HEC assessment debt of a person as if the HEC assessment debt were income tax.

    SECTION 106V   106V   NOTIFICATION ON NOTICES OF ASSESSMENT OF TAX  
    If:


    (a) the Commissioner is required to serve on a person a notice of assessment in respect of the person's income of a year of income under section 174 of the Income Tax Assessment Act 1936; and


    (b) an assessment ( relevant assessment ) has been made in respect of the person of the amounts referred to in section 106T of this Act but notice of the relevant assessment has not been served on the person;

    notice of the relevant assessment may be served by specifying the amounts concerned in the notice referred to in paragraph (a).

    SECTION 106W   POWER OF COMMISSIONER TO DEFER ASSESSMENT OR REDUCE ASSESSMENT TO NIL  

    106W(1)  
    The Commissioner may, on written application by a person, defer the making of an assessment in relation to the person under section 106T if the Commissioner is of the opinion that:


    (a) if the assessment were made, payment of the assessed amount would cause serious hardship to the person; or


    (b) there are other special reasons that make it fair and reasonable to defer the making of the assessment.

    106W(2)  
    The Commissioner may defer the assessment for any period that he or she thinks appropriate.

    106W(3)  
    The Commissioner may, on written application by a person, amend an assessment made in relation to the person under section 106T so that no amount is payable under the assessment if the Commissioner is of the opinion that:


    (a) payment of the assessed amount has caused or would cause serious hardship to the person; or


    (b) there are other special reasons that make it fair and reasonable to make the amendment.

    106W(4)  
    If an application is made under subsection (1) or (3), the Commissioner must as soon as practicable:


    (a) consider the matter to which the application relates; and


    (b) notify the applicant of the Commissioner's decision on the application.

    SECTION 106X   REVIEW OF DECISION OF COMMISSIONER  

    106X(1)  
    Application may be made to the Administrative Appeals Tribunal for review of:


    (a) a decision of the Commissioner under subsection 106W(1); or


    (b) a decision of the Commissioner under subsection 106W(3) refusing to amend an assessment.

    106X(2)  
    A notice under paragraph 106W(4)(b) relating to a decision that may be reviewed by the Tribunal must:


    (a) include a statement to the effect that, if the person is dissatisfied with the decision of the Commissioner, application may, subject to the Administrative Appeals Tribunal Act 1975, be made to the Tribunal for review of the decision; and


    (b) except if subsection 28(4) of that Act applies, also include a statement to the effect that the person may request a statement under section 28 of that Act.

    106X(3)  
    A failure to comply with subsection (2) in relation to a notification does not affect the validity of the notification or of the decision to which the notification relates.

    Division 4 - Miscellaneous  

    SECTION 106Y   APPLICATION OF PAYMENTS  

    106Y(1)  
    Any money paid by a person to meet the person's debts to the Commonwealth under this Chapter is to be applied in payment of those debts as directed by the person.

    106Y(2)  
    If:


    (a) the person has not given any directions; or


    (b) the directions given do not adequately deal with the matter;

    any money available is to be applied as follows:


    (c) first, in discharge or reduction of any HEC assessment debts of the person;


    (d) secondly, in discharge or reduction of any accumulated HEC debt of the person;


    (e) thirdly, in discharge or reduction of:


    (i) any semester debt of the person; or

    (ii) if there is more than one such debt, those debts in the order in which they were incurred; or


    (f) fourthly, in discharge or reduction of:


    (i) any HELP debt of the person; or

    (ii) if there is more than one such debt, those debts in the order in which they were incurred.

    106Y(3)  


    In this section:

    HELP debt
    has the same meaning as in the Higher Education Support Act 2003.

    SECTION 106YA   EFFECT OF BANKRUPTCY  

    106YA(1)  
    This section applies in relation to a bankruptcy if:


    (a) before the bankrupt's bankruptcy date, the bankrupt incurred:


    (i) an accumulated HEC debt; or

    (ii) a semester debt or semester debts; or

    (iii) both; and


    (b) that debt or those debts had not been discharged before the bankruptcy date.

    106YA(2)   Debts related to pre-bankruptcy period are provable.  

    Subject to subsection (5), the following are taken to be provable debts for the purposes of the Bankruptcy Act:


    (a) the pre-bankruptcy part of the bankrupt's accumulated HEC debt;


    (b) the unpaid part of the semester debt, or of each of the semester debts.

    Note 1:

    An accumulated HEC debt and a semester debt can be discharged and replaced by a new accumulated HEC debt through the operation of sections 106N and 106O.

    Note 2:

    If an accumulated HEC debt, or a semester debt that the bankrupt incurred before the bankrupt's bankruptcy date, is discharged and replaced in this way:

  • (a) it ceases to be a provable debt; and
  • (b) subsections (6) and (7) of this section can apply to the new accumulated HEC debt; and
  • (c) for that purpose, a pre-bankruptcy part for the bankrupt's new accumulated HEC debt is calculated under subsections (8) and (9).
  • 106YA(3)   Debts related to post-bankruptcy period not provable.  

    To avoid doubt, the following are taken not to be provable debts for the purposes of the Bankruptcy Act:


    (a) the bankrupt's accumulated HEC debt (apart from the pre-bankruptcy part of the debt);


    (b) any semester debt incurred by the bankrupt on or after the bankrupt's bankruptcy date.

    106YA(4)   Dividend taken to be voluntary payment.  

    A dividend paid under the Bankruptcy Act to the Commonwealth in respect of:


    (a) the pre-bankruptcy part of the bankrupt's accumulated HEC debt; or


    (b) a semester debt mentioned in subsection (1);

    is taken for the purposes of this Part to be money that the bankrupt has directed to be applied in payment of that debt.

    106YA(5)   No release on discharge from bankruptcy.  

    Section 153 of the Bankruptcy Act does not operate to release the bankrupt from the following:


    (a) all or any part of the accumulated HEC debt;


    (b) a semester debt mentioned in subsection (1).

    106YA(6)   Replacement of accumulated HEC debt.  

    If:


    (a) subsections (2) to (5) apply to an accumulated HEC debt (the old HEC debt ) of the bankrupt (including because of a previous application of this subsection or subsection (7)); and


    (b) the old HEC debt is discharged under section 106O because the bankrupt incurred another accumulated HEC debt (the replacement HEC debt ) under section 106N;

    then:


    (c) after the replacement HEC debt is incurred, those subsections apply (subject to any later application of this subsection) to the replacement HEC debt instead of the old HEC debt; and


    (d) for that purpose:


    (i) a proof of debt under the Bankruptcy Act in relation to the pre-bankruptcy part of the old HEC debt (including because of a previous application of this subsection or subsection (7)) is taken to relate, to the extent of that proof, to the pre-bankruptcy part of the replacement HEC debt; and

    (ii) if at the time the old HEC debt is discharged under section 106O, a semester debt of the bankrupt is also discharged under that section - a proof of debt under the Bankruptcy Act in relation to the semester debt is taken to relate, to the extent of that proof, to the pre-bankruptcy part of the replacement HEC debt.

    106YA(7)   Replacement of semester debt only.  

    If:


    (a) immediately before the bankrupt's bankruptcy date, the bankrupt had:


    (i) one or more undischarged semester debts (an old semester debt ); and

    (ii) no undischarged accumulated HEC debt; and


    (b) on or after the bankruptcy date, the unpaid part of an old semester debt is discharged under section 106O because the bankrupt incurred an accumulated HEC debt (the new HEC debt ) under section 106N;

    then:


    (c) after the new HEC debt is incurred, subsections (2) to (5) apply (subject to any later application of subsection (6)) to the new HEC debt instead of the old semester debt; and


    (d) for that purpose, a proof of debt under the Bankruptcy Act in relation to the old semester debt is taken to relate to the pre-bankruptcy part of the new HEC debt.

    106YA(8)  
    Subject to subsection (9), the pre-bankruptcy part of a bankrupt's accumulated HEC debt is the amount that would be the bankrupt's relevant debt calculated in accordance with subsections 106Q(2) and (3), if:


    (a) that amount was calculated as at the time immediately before the bankrupt's bankruptcy date; and


    (b) the reference in paragraph 106Q(2)(a) to the person's accumulated HEC debt referred to in paragraph (1)(b) were a reference to the person's accumulated HEC debt on the 1 June immediately preceding the bankruptcy date.

    106YA(9)  
    If:


    (a) immediately before the bankrupt's bankruptcy date, the bankrupt had one or more undischarged semester debts; and


    (b) at a time (the discharge time ) on or after the bankruptcy date, the unpaid part of those debts (the discharged amount ) was discharged because of the operation of section 106O;

    then:


    (c) if the bankrupt did not have an accumulated HEC debt immediately before the discharge time - the pre-bankruptcy part of the bankrupt's accumulated HEC debt is equal to the discharged amount; or


    (d) otherwise - the pre-bankruptcy part of the bankrupt's accumulated HEC debt is taken to be increased at the discharge time by an amount equal to the discharged amount.

    106YA(10)  
    In this section:

    bankrupt
    has the same meaning as in the Bankruptcy Act.

    bankruptcy
    has the same meaning as in the Bankruptcy Act.

    Bankruptcy Act
    means the Bankruptcy Act 1966.

    bankruptcy date
    , in relation to a bankrupt, means the date of the bankruptcy of the bankrupt (within the meaning of the Bankruptcy Act).

    dividend
    has the same meaning as in the Bankruptcy Act.

    pre-bankruptcy part
    , in relation to a bankrupt's accumulated HEC debt, has the meaning given by subsections (8) and (9).

    provable debt
    has the same meaning as in the Bankruptcy Act.

    SECTION 106Z   106Z   INDEBTEDNESS DISCHARGED BY DEATH  
    Upon the death of a person who owes a debt (other than an HEC assessment debt) to the Commonwealth under this Chapter, the debt is taken to have been paid.

    SECTION 106ZA   106ZA   SECRECY  
    Section 78 has effect in relation to information disclosed or obtained under, or for the purposes of, this Chapter as if:


    (a) the section were included in this Chapter; and


    (b) any reference to an institution included a reference to the Agency.

    CHAPTER 5B - LIMIT ON STUDENT DEBT TO COMMONWEALTH  

    Part 5B.1 - Preliminary  

    SECTION 106ZB   Definitions  

    106ZB(1)  


    In this Chapter, unless the contrary intention appears:

    census date
    means:


    (a) when used in relation to a loan under section 57 or 98G - census date within the meaning of Chapter 4; or


    (b) when used in relation to a loan under section 98ZA - census date within the meaning of Chapter 4B; or


    (c) when used in relation to a loan under section 106D - census date within the meaning of Chapter 5.

    loan limit notice
    means a notice given under subsection 106ZE(1).

    maximum permitted debt
    means the amount specified in a determination in force under section 106ZD.

    study period
    means:


    (a) when used in relation to a loan under section 98ZA - study period within the meaning of Chapter 4B; or


    (b) when used in relation to a loan under section 106D - study period within the meaning of Chapter 5.

    suspension notice
    means a notice given under subsection 106ZH(1).

    total indebtedness under this Act
    has the meaning given by subsection (3).

    106ZB(2)  


    Expressions used in this Chapter that are defined in Chapter 4, 4A, 4B, 5 or 5A have in this Chapter, unless the contrary intention appears, the same meanings as in Chapter 4, 4A, 4B, 5 or 5A (as the case may be).

    106ZB(3)  
    A person's total indebtedness under this Act at a time is the sum of:


    (a) the person's accumulated HEC debt as at the most recent 1 June before that time; and


    (b) the semester debt or semester debts that:


    (i) the person owes to the Commonwealth; and

    (ii) were incurred after that 1 June;

    reduced by any payments made after that 1 June in reduction of the debts mentioned in paragraph (a) or (b).

    Part 5B.2 - Additional condition of grant of financial assistance  

    SECTION 106ZC   Additional condition  

    106ZC(1)  
    In addition to the conditions specified in any other provision of this Act, financial assistance is granted to an institution referred to in section 4 on the condition that the institution complies with the requirements of this Chapter.

    106ZC(2)  
    Without limiting the operation of subsection (1), the following provisions of this Chapter do not of their own force require an institution to do any act or thing.

    Part 5B.3 - Maximum permitted debt  

    SECTION 106ZD   106ZD   Minister may determine maximum permitted debt  


    The Minister may make a determination specifying an amount that is the maximum permitted debt for the purposes of this Chapter.

    Part 5B.4 - Loan limit notices  

    SECTION 106ZE   Commissioner to give loan limit notice  

    106ZE(1)  
    The Commissioner must give a notice (the loan limit notice ) under this section in relation to a person if the person's total indebtedness under this Act exceeds the maximum permitted debt.

    106ZE(2)  
    The notice must:


    (a) state that, on the day on which the notice is given, the person's total indebtedness under this Act exceeds the maximum permitted debt; and


    (b) summarise the effect of sections 106ZF, 106ZG, 106ZH and 106ZJ.

    106ZE(3)  
    The notice must be in writing and given to the person to whom it relates.

    106ZE(4)  
    The Commissioner must give a copy of the notice to:


    (a) each institution at which, according to information that the institution has given the Commissioner, the person to whom the notice relates is enrolled in or undertaking a designated course of study, an eligible post-graduate course of study or a BOTP course; and


    (b) if the Agency has given information to the Commissioner indicating that the person to whom the notice relates is an eligible client of the Agency for a study period - the Agency;

    unless the notice has been cancelled under section 106ZF.

    Note:

    The Commissioner must give a copy of the notice from time to time as occasion requires. See subsection 33(1) of the Acts Interpretation Act 1901.

    106ZE(5)  
    At the time the notice is given, the Commissioner must also give a statement in writing to the person to whom the notice relates that specifies:


    (a) the maximum permitted debt; and


    (b) the person's total indebtedness under this Act at that time.

    SECTION 106ZF   Cancelling loan limit notice  

    106ZF(1)  
    The person to whom the loan limit notice relates may ask the Commissioner to give a notice (the cancellation notice ) under this section cancelling the loan limit notice.

    106ZF(2)  
    The Commissioner must give the cancellation notice to the person if the person's total indebtedness under this Act no longer exceeds the maximum permitted debt.

    106ZF(3)  
    The cancellation notice must be in writing and state that, on the day on which it is given, the person's total indebtedness under this Act does not exceed the maximum permitted debt.