Higher Education Support Act 2003

Chapter 1 - Introduction  

Division 1 - Preliminary  

SECTION 1-1   1-1   Short title  
This Act may be cited as the Higher Education Support Act 2003.

SECTION 1-5   Commencement  

1-5(1)  
Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.


Commencement information
Column 1 Column 2 Column 3
Provision(s) Commencement Date/Details
1. Sections 1-1 and 1-5 and anything in this Act not elsewhere covered by this table The day on which this Act receives the Royal Assent. 19 December 2003
2. Sections 1-10 to 238-15 The later of:
(a) 1 January 2004; and
(b) the day after the day on which this Act   receives the Royal Assent.
1 January 2004
3. Schedule 1 The later of:
(a) 1 January 2004; and
(b) the day after the day on which this Act   receives the Royal Assent.
1 January 2004

Note:

This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

1-5(2)  
Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

SECTION 1-10   Identifying defined terms  

1-10(1)  
Many of the terms in this Act are defined in the Dictionary in Schedule 1.

1-10(2)  
Most of the terms that are defined in the Dictionary in Schedule 1 are identified by an asterisk appearing at the start of the term: as in ``*accredited course''. The footnote with the asterisk contains a signpost to the Dictionary.

1-10(3)  
An asterisk usually identifies the first occurrence of a term in a section (if not divided into subsections), subsection or definition. Later occurrences of the term in the same provision are not usually asterisked.

1-10(4)  
Terms are not asterisked in headings, notes, examples, explanatory tables, guides, outline provisions or diagrams.

1-10(5)  
If a term is not identified by an asterisk, disregard that fact in deciding whether or not to apply to that term a definition or other interpretation provision.

1-10(6)  
The following basic terms used throughout the Act are not identified with an asterisk:


Terms that are not identified
Item This term: is defined in:
1 enrol Schedule 1
2 higher education provider section 16-1
3 student Schedule 1
4 unit of study Schedule 1

SECTION 1-15   1-15   Application of Chapter 6 etc. 
(Repealed by No 74 of 2011)

Division 2 - Objects  

SECTION 2-1   2-1   Objects of this 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 highly educated and skilled population; and

(iv) promotes and protects free intellectual inquiry in learning, teaching and research; and


(b) to support the distinctive purposes of universities, which are:


(i) the education of persons, enabling them to take a leadership role in the intellectual, cultural, economic and social development of their communities; and

(ii) the creation and advancement of knowledge; and

(iii) the application of knowledge and discoveries to the betterment of communities in Australia and internationally;
recognising that universities are established under laws of the Commonwealth, the States and the Territories that empower them to achieve their objectives as autonomous institutions through governing bodies that are responsible for both the university's overall performance and its ongoing independence; and


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


(d) to support students undertaking higher education and certain vocational education and training.

Division 3 - Overview of this Act  

SECTION 3-1   3-1   General  


This Act primarily provides for the Commonwealth to give financial support for higher education and certain vocational education and training:


(a) through grants and other payments made largely to higher education providers; and


(b) through financial assistance to students (usually in the form of loans).

SECTION 3-5   Grants for higher education assistance etc (Chapter 2)  

3-5(1)  
Chapter 2 sets out who are higher education providers, and provides for the following grants and payments:


(a) grants under the Commonwealth Grant Scheme;


(aa) grants for assisting Indigenous students;


(b) other grants for particular purposes;


(c) grants for Commonwealth scholarships.

3-5(2)  


Higher education providers will be universities, self-accrediting entities or non self-accrediting entities.

3-5(3)  


Chapter 2 also provides for the direct payment to students of certain Commonwealth scholarships.

SECTION 3-10   3-10   Assistance to students (Chapter 3)  


Chapter 3 provides for the following assistance to students:


(a) HECS-HELP assistance for student contribution amounts;


(b) FEE-HELP assistance for tuition fees;


(c) OS-HELP assistance for overseas study;


(d) SA-HELP assistance for meeting student services and amenities fees imposed by higher education providers.

SECTION 3-15   3-15   Repayment of loans (Chapter 4)  
Chapter 4 sets out how debts are incurred and worked out in relation to loans made under Chapter 3, and provides for their repayment.

SECTION 3-20   3-20   Administration (Chapter 5)  
Chapter 5 provides for several administrative matters relating to the operation of this Act.

SECTION 3-25   3-25   Provision of higher education in the external Territories (Chapter 6)  
(Repealed by No 74 of 2011)

SECTION 3-30   3-30   VET FEE-HELP Assistance Scheme (Schedule 1A)  


Schedule 1A provides for financial assistance to students undertaking certain accredited vocational education and training (VET) courses.

Division 5 - Application of Act to Table C providers  

SECTION 5-1   Application of Act to Table C providers  

General application to Table C providers

5-1(1)  
The provisions of this Act not listed in the table in subsection (2) or in subsection (4) apply to a *Table C provider, the *Australian branch of the provider and to students undertaking or proposing to undertake units of study at that branch. Modified application to Table C providers

5-1(2)  


The provisions of this Act listed in the table apply to a *Table C provider in the way set out in the table.


Application of Act to Table C providers
Item Provision Application
1 Subdivision 19-C (quality requirements) Applies to the *Australian branch of the provider. However, *TEQSA may need to assess the overall performance of the provider as it relates to that branch.
2 Subdivision 19-D (fairness requirements) Applies to the *Australian branch of the provider and to students undertaking or proposing to undertake units of study at that branch.
3 Subdivision 19-F (contribution and fee requirements) Applies to the *Australian branch of the provider and to students undertaking or proposing to undertake units of study at that branch.
4 Part 3-3 (FEE-HELP assistance) Applies to eligible students of the *Australian branch of the provider, but only for units of study in which the students are enrolled at the Australian branch.
5 Part 3-4 (OS-HELP assistance) Applies to eligible students of the *Australian branch of the provider.
5A Part 3-5 (SA-HELP assistance) Applies to eligible students of the *Australian branch of the provider who are enrolled at the Australian branch in a *course of study or *bridging course for overseas-trained professionals.
6 Chapter 4 (Repayment of loans) Applies to the *Australian branch of the provider and to students undertaking, or students who undertook, units of study at that branch.
7 Part 5-2 (Administrative requirements on higher education providers) Applies to the *Australian branch of the provider and to students undertaking or proposing to undertake units of study at that branch.
8 Part 5-3 (Electronic communications) Applies to the *Australian branch of the provider and to students undertaking or proposing to undertake units of study at that branch.
9 Part 5-4 (Management of information) Applies to the *Australian branch of the provider and to students undertaking or proposing to undertake units of study at that branch.
10 Part 5-5 (Tax file numbers) Applies to the *Australian branch of the provider and to students undertaking or proposing to undertake units of study at that branch.
11 Part 5-7 (Review of decisions) Applies to the *Australian branch of the provider and to students undertaking or proposing to undertake units of study at that branch.

Provisions that do not apply to Table C providers

5-1(3)  
The provisions of this Act listed in subsection (4) do not apply to:


(a) a *Table C provider; or


(b) the *Australian branch of the provider; or


(c) students in their capacity as students of that provider or of that branch.

5-1(4)  


The provisions are as follows:


(a) Part 2-2 (Commonwealth Grant Scheme);


(aa) Part 2-2A (Indigenous student assistance grants);


(b) Part 2-3 (Other grants);


(c) Part 2-4 (Commonwealth scholarships);


(d) Part 2-5 (Reduction and repayment of grants);


(e) Part 3-2 (HECS-HELP assistance);


(f) Schedule 1A (VET FEE-HELP Assistance Scheme).

Division 6 - Schedule 1A  

SECTION 6-1   6-1   Schedule 1A  


Schedule 1A has effect.

Chapter 2 - Grants for higher education assistance etc  

Division 8 - Introduction  

SECTION 8-1   What this Chapter is about  


This Chapter provides for who are higher education providers, and for 4 kinds of grants to be made.

Part 2-1 sets out who are higher education providers (universities, self-accrediting entities and non self-accrediting entities), the quality and accountability requirements for higher education providers and how bodies cease to be higher education providers.

Note:

Except in very limited cases, only higher education providers can get grants under this Chapter.

The 4 kinds of grants available under this Chapter are:

  • · grants under Part 2-2 (Commonwealth Grant Scheme) to certain higher education providers. These grants are paid in relation to Commonwealth supported places. Grants are made subject to conditions; and
  • · grants under Part 2-2A to Table A providers and Table B providers to assist Indigenous students; and
  • · other grants under Part 2-3 to higher education providers and other bodies corporate for a variety of purposes; and
  • · grants for Commonwealth scholarships to certain higher education providers under Part 2-4.
  • The amount of a grant may be reduced, or an amount paid may be required to be repaid, if the recipient breaches a quality and accountability requirement or a condition of the grant (see Part 2-5).

    Note:

    A body's approval as a higher education provider may be suspended or revoked for such a breach.

    This Chapter also provides for the direct payment to students of certain Commonwealth scholarships under Part 2-4.

    PART 2-1 - HIGHER EDUCATION PROVIDERS  

    Division 13 - Introduction  

    SECTION 13-1   13-1   What this Part is about  


    A body generally has to be approved as a higher education provider before it can receive grants, or its students can receive assistance, under this Act. Listed providers (universities and certain self-accrediting entities) have that approval upon commencement of this Act. Table C providers have that approval from the time they are included in Table C. Bodies that do not have that automatic approval, or whose approval has been revoked, have to apply for approval.

    Higher education providers are subject to the quality and accountability requirements. c-text>A body's approval as a higher education provider may be revoked in circumstances such as breach of a quality and accountability requirement.

    SECTION 13-5   13-5   The Higher Education Provider Guidelines  
    Higher education providers and the *quality and accountability requirements are also dealt with in the Higher Education Provider Guidelines. The provisions of this Part indicate when a particular matter is or may be dealt with in these Guidelines.

    Note:

    The Higher Education Provider Guidelines are made by the Minister under section 238-10.

    Division 16 - What is a higher education provider?  

    Subdivision 16-A - General  

    SECTION 16-1   Meaning of higher education provider  

    16-1(1)  
    A higher education provider is a body corporate that is approved under this Division.

    16-1(2)  


    Despite subsection (1), a body other than a body corporate may be approved under this Division as a higher education provider if the body is covered by an exemption under subsection (3).

    16-1(3)  


    The Minister may, in writing, exempt a body for the purposes of this section if the body is established by or under a law of the Commonwealth, a State or a Territory.

    16-1(4)  


    If the Minister exempts a body under subsection (3), references in this Act, other than in this section, to a body corporate are taken to include the body.

    16-1(5)  


    An exemption given under this section is not a legislative instrument.

    SECTION 16-5   When a body becomes or ceases to be a higher education provider  

    16-5(1)  
    A *listed provider is taken to be approved as a higher education provider from the commencement of this Act.

    16-5(1A)  


    A *Table C provider is taken to be approved as a higher education provider from the commencement of the provision that included the provider in Table C in section 16-22.

    16-5(2)  
    A body corporate:


    (a) that is not a *listed provider or a *Table C provider; or


    (b) that is a listed provider or a Table C provider that has previously ceased to be a higher education provider;

    becomes a provider if approved by the Minister under section 16-25.

    16-5(3)  


    A higher education provider ceases to be a provider if the provider's approval is revoked or suspended under Division 22 or the notice of the provider's approval ceases to have effect under Part 2 of Chapter 3 (parliamentary scrutiny of legislative instruments) of the Legislation Act 2003.

    Subdivision 16-B - Which bodies are listed providers?  

    SECTION 16-10   16-10   Listed providers  
    The following are listed providers:


    (a) a *Table A provider;


    (b) a *Table B provider.

    SECTION 16-15   Table A providers  

    16-15(1)  


    The following are Table A providers :


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

    16-15(2)  
    However, a body is not a Table A provider if its approval as a higher education provider is revoked or suspended.

    SECTION 16-20   Table B providers  

    16-20(1)  


    The following are Table B providers :


    Table B providers
    Providers
    Bond University
    The University of Notre Dame Australia
    MCD University of Divinity
    Torrens University Australia

    16-20(2)  
    However, a body is not a Table B provider if its approval as a higher education provider is revoked or suspended.

    SECTION 16-22   Table C providers  

    16-22(1)  


    The following are Table C providers :


    Table C providers
    Providers
    Carnegie Mellon University, a non-profit organisation
    established under Pennsylvania law
    University College London, a non-profit organisation
    established under United Kingdom law

    16-22(2)  
    However, a body is not a Table C provider if its approval as a higher education provider is revoked or suspended.

    Note:

    A Table C provider is not entitled to receive a grant under this Chapter: see section 5-1.

    Subdivision 16-C - How are bodies approved as higher education providers?  

    SECTION 16-25   Approval by the Minister  

    16-25(1)  


    The Minister, in writing, may approve a body corporate as a higher education provider if:


    (a) the body:


    (i) is established under the law of the Commonwealth, a State or a Territory; and

    (ii) carries on business in Australia; and

    (iii) has its central management and control in Australia; and


    (aa) subject to subsection (2), the body's principal purpose is, or is taken to be, either or both of the following:


    (i) to provide education;

    (ii) to conduct research; and


    (b) the body is:


    (i) an *Australian university; or

    (ii) a *self-accrediting entity; or

    (iii) a *non self-accrediting entity; and


    (c) the body either fulfils the *tuition assurance requirements or is exempted from those requirements under section 16-31; and


    (d) (Repealed by No 74 of 2011)


    (da) the body offers at least one *course of study that leads to a *higher education award; and


    (db) the course of study is an *accredited course in relation to the body; and


    (dc) (Repealed by No 74 of 2011)


    (e) the body applies for approval as provided for in section 16-40; and


    (f) the Minister is satisfied that the body is willing and able to meet the *quality and accountability requirements; and


    (fa) the body complies with any requirements set out in the Higher Education Provider Guidelines; and


    (fb) the Minister is satisfied that the body has sufficient experience in the provision of higher education; and


    (g) the Minister is satisfied that:


    (i) the body; and

    (ii) each person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the body's affairs;
    is a fit and proper person.

    16-25(2)  


    For the purpose of paragraph (1)(aa), the Minister may determine that a body's principal purpose is taken to be either or both of the following:


    (a) to provide education;


    (b) to conduct research;

    if the Minister is satisfied that any of the body's purposes do not conflict with the body's purpose of providing education and/or conducting research.

    16-25(2A)  


    For the purposes of paragraph (1)(fb), the Minister may have regard to the following:


    (a) whether the body has been a *registered higher education provider for 3 or more years;


    (b) the history of the body, and each person who makes or participates in making decisions that affect the whole, or a substantial part, of the body's affairs, in delivering higher education;


    (c) the scope of courses and level of qualifications the body, and each person who makes or participates in making decisions that affect the whole, or a substantial part, of the body's affairs, has experience in providing.

    16-25(3)  


    The Minister must, in deciding whether he or she is satisfied that a person is a fit and proper person, take into account the matters specified in an instrument under subsection (4). The Minister may take into account any other matters he or she considers relevant.

    16-25(4)  


    The Minister must, by legislative instrument, specify matters for the purposes of subsection (3).

    SECTION 16-27   16-27   Body must be a registered higher education provider  


    Despite section 16-25, the Minister must not approve a body corporate as a higher education provider unless the body is a *registered higher education provider.

    SECTION 16-30   16-30   The tuition assurance requirements  


    The tuition assurance requirements are that the body corporate complies with the requirements for tuition assurance set out in the Higher Education Provider Guidelines.

    SECTION 16-31   Tuition assurance requirements exemption for approvals  

    16-31(1)  
    The Minister may, in writing, exempt a body corporate from the *tuition assurance requirements for the purposes of approving the body under section 16-25.

    Note:

    This section only deals with exemptions from the tuition assurance requirements when approving bodies as higher education providers. For exemptions from the tuition assurance requirements after approval has happened, see subsection 19-40(2).

    16-31(2)  
    An exemption is subject to such conditions as are specified in the exemption.

    Note:

    A body will not be exempt if a condition of the exemption is not complied with.

    16-31(3)  
    An exemption given under this section is not a legislative instrument.

    SECTION 16-35   16-35   Additional requirements for non self-accrediting providers  
    (Repealed by No 72 of 2007)

    SECTION 16-40   Application  

    16-40(1)  


    A body corporate that is a *registered higher education provider may apply, in writing, to the Minister for approval as a higher education provider under this Act.

    16-40(1A)  


    However, if:


    (a) the body corporate made an application (the earlier application ) under subsection (1); and


    (b) the Minister decided not to approve the earlier application;

    the body corporate cannot make another application under that subsection within 6 months after the day on which notice of the decision on the earlier application was given to the body corporate.

    16-40(2)  
    The application:


    (a) must be in the form approved by the Minister; and


    (b) must be accompanied by such information as the Minister requests.

    SECTION 16-42   16-42   Minister may seek information from TEQSA  
    (Repealed by No 23 of 2013)

    SECTION 16-43   16-43   Minister may seek information from relevant VET regulator  
    (Repealed by No 23 of 2013)

    SECTION 16-45   Minister may seek further information  

    16-45(1)  
    For the purposes of determining an application, the Minister may, by notice in writing, require an applicant to provide such further information as the Minister directs within the period specified in the notice.

    16-45(2)  
    If an applicant does not comply with a requirement under subsection (1), the application is taken to have been withdrawn.

    16-45(3)  
    A notice under this section must include a statement about the effect of subsection (2).

    SECTION 16-50   Minister to decide application  

    16-50(1)  
    The Minister must:


    (a) decide an application for approval as a higher education provider; and


    (b) cause the applicant to be notified in writing whether or not the applicant is approved as a higher education provider.

    16-50(2)  


    For the purposes of paragraph 16-25(1)(f), the Minister may be satisfied that a body corporate is willing and able to meet the *quality and accountability requirements if the body gives the Minister such written undertakings as the Minister requires.

    16-50(3)  
    The Minister's decision must be made:


    (a) within 90 days after receiving the application; or


    (b) if further information is requested under section 16-45 - within 60 days after the end of the period within which the information was required to be provided under that section;

    whichever is the later.

    16-50(3A)  
    However, contravention of subsection (3) does not affect the Minister's power to decide the application or the Minister's obligation to comply with subsection (1).

    16-50(4)  
    If the Minister decides that an applicant is approved as a higher education provider, the notice must also contain such information as is specified in the Higher Education Provider Guidelines as information that must be provided to an applicant upon approval as a higher education provider.

    SECTION 16-55   Approvals are legislative instruments  

    16-55(1)  


    A notice of approval under paragraph 16-50(1)(b) is a legislative instrument.

    16-55(2)  


    A decision of the Minister to approve a body corporate as a higher education provider takes effect when the notice of approval commences under the Legislation Act 2003.
    Note:

    Section 12 of the Legislation Act 2003 provides for when a legislative instrument commences.

    SECTION 16-60   Conditions of approval  

    16-60(1)  
    The Minister may impose conditions on a body corporate's approval as a higher education provider. Such conditions need not be imposed at the time notice of approval is given to the provider.

    16-60(2)  
    The Minister may vary a condition imposed under subsection (1).

    16-60(3)  


    The conditions may include the following:


    (a) that a specified limit on the total number of students entitled to *FEE-HELP assistance applies to the provider for a specified period;


    (b) that a specified limit on the total amount of FEE-HELP assistance payable to the provider applies to the provider for a specified period;


    (c) that FEE-HELP assistance is payable only in relation to specified units of study offered by the higher education provider;


    (d) that FEE-HELP assistance is not payable in relation to specified units of study offered by the higher education provider;


    (e) that units of study provided in a specified manner or by a specified mode of delivery by the higher education provider are units in relation to which FEE-HELP assistance is unavailable.

    16-60(4)  


    Subsection (3) does not limit the conditions the Minister may impose on the approval.

    SECTION 16-65   16-65   Minister to cause higher education provider to be notified of change in condition of approval  


    The Minister must, within 30 days of his or her decision to impose or vary a condition on a higher education provider, cause the provider to be notified, in writing, of:


    (a) the decision; and


    (b) the reasons for the decision; and


    (c) the period for which the condition is imposed.

    SECTION 16-70   Variation of approval if body's name changes  

    16-70(1)  
    If a body corporate is approved as a higher education provider under section 16-25 and the body's name changes, the Minister may vary the approval to include the new name.

    16-70(2)  
    The Minister must notify the body in writing of the variation.

    16-70(3)  
    A notice of variation under subsection (2) is a legislative instrument.

    16-70(4)  


    The variation takes effect when the notice of variation commences under the Legislation Act 2003.
    Note:

    Section 12 of the Legislation Act 2003 provides for when a legislative instrument commences.

    Division 19 - What are the quality and accountability requirements?  

    Subdivision 19-A - General  

    SECTION 19-1   19-1   The quality and accountability requirements  
    The quality and accountability requirements are:


    (a) the *financial viability requirements (see Subdivision 19-B); and


    (b) the *quality requirements (see Subdivision 19-C); and


    (c) the *fairness requirements (see Subdivision 19-D); and


    (d) the *compliance requirements (see Subdivision 19-E); and


    (e) the *contribution and fee requirements (see Subdivision 19-F); and


    (f) the *compact and academic freedom requirements (see Subdivision 19-G).

    19-1(2)  
    (Repealed by No 23 of 2013)

    Subdivision 19-B - The financial viability requirements  

    SECTION 19-5   19-5   Basic requirement  
    A higher education provider:


    (a) must be financially viable; and


    (b) must be likely to remain financially viable.

    SECTION 19-10   Financial information must be provided  

    19-10(1)  
    A higher education provider must give to the Minister a financial statement for each *annual financial reporting period for the provider in which:


    (a) the provider receives assistance under this Chapter; or


    (b) a student of the provider receives assistance under Chapter 3.

    19-10(2)  
    The statement:


    (a) must be in the form approved by the Minister; and


    (ab) comply with any requirements prescribed by the Higher Education Provider Guidelines; and


    (b) must be provided together with a report on the statement by an independent *qualified auditor; and


    (c) must be provided within 6 months after the end of the *annual financial reporting period for which the statement was given.

    19-10(2A)  


    Without limiting subsection 33(3A) of the Acts Interpretation Act 1901, requirements made for the purposes of paragraph (2)(ab) of this section may make different provision in relation to different kinds of providers, circumstances or any other matter.

    19-10(3)  
    An annual financial reporting period , for a higher education provider, is the period of 12 months:


    (a) to which the provider's accounts relate; and


    (b) that is notified in writing to the Minister as the provider's annual financial reporting period.

    SECTION 19-12   19-12   Minister to have regard to financial information and matters prescribed in Higher Education Guidelines  


    In determining whether a higher education provider is financially viable, and likely to remain so, the Minister must have regard to:


    (a) any financial statement provided by the provider under section 19-10; and


    (b) the matters (if any) prescribed by the Higher Education Provider Guidelines.

    Subdivision 19-C - The quality requirements  

    SECTION 19-15   19-15   Provider must maintain quality  


    A higher education provider must operate, and continue to operate, at a level of quality:


    (a) that meets the Threshold Standards (within the meaning of the *TEQSA Act); and


    (b) thatmeets the requirements imposed by or under the TEQSA Act on, or in relation to, the provider.

    Subdivision 19-D - The fairness requirements  

    SECTION 19-30   19-30   Basic requirement  
    A higher education provider must treat fairly:


    (a) all of its students; and


    (b) all of the persons seeking to enrol with the provider.

    SECTION 19-35   Benefits and opportunities must be available equally to all students  

    19-35(1)  
    A higher education provider that receives assistance under this Chapter in respect of a student, or a class of students, must ensure that the benefits of, and the opportunities created by, the assistance are made equally available to all such students, or students in such class, in respect of whom that assistance is payable.

    19-35(2)  


    A higher education provider that receives:


    (a) any grant or allocation under this Chapter; or


    (b) any payment under section 124-1 on account of amounts of *OS-HELP assistance;

    must have open, fair and transparent procedures that, in the provider's reasonable view, are based on merit for making decisions about the selection of students who are to benefit from the grant, allocation or payment.

    19-35(3)  
    Subsection (2) does not prevent a higher education provider taking into account, in making such decisions about the selection of students, educational disadvantages that a particular student has experienced.

    19-35(4)  


    A higher education provider that receives any payment under section 110-1 on account of amounts of *FEE-HELP assistance for a unit of study must have open, fair and transparent procedures that, in the provider's reasonable view, are based on merit for making decisions about:


    (a) the selection, from among the persons who seek to enrol with the provider in that unit of study, of persons to enrol; and


    (b) the treatment of students undertaking that unit of study.

    19-35(5)  
    Subsection (4) does not prevent a higher education provider taking into account, in making decisions mentioned in that subsection, educational disadvantages that a particular student has experienced.

    SECTION 19-36   19-36   Misrepresenting assistance under Chapter 3  


    A higher education provider must not represent, whether by publishing or otherwise, that assistance payable under Chapter 3:


    (a) is not a loan; or


    (b) does not have to be repaid.

    Civil penalty: 240 penalty units.

    SECTION 19-36A   Offering certain inducements  

    19-36A(1)  
    A higher education provider must not offer or provide a benefit, or cause a benefit to be offered or provided, if the benefit would be reasonably likely to induce a person to make a *request for Commonwealth assistance in relation to enrolling in a unit of study with the provider.

    Civil penalty: 120 penalty units.

    19-36A(2)  
    Subsection (1) does not apply in relation to a benefit specified in the Higher Education Provider Guidelines.

    SECTION 19-36B   Engaging in cold-calling  

    19-36B(1)  
    This section applies if a higher education provider cold-calls another person to market, advertise or promote a unit of study or a *course of study.

    19-36B(2)  
    The higher education provider must not mention the possible availability of *FEE-HELP assistance for students undertaking the unit of study or *course of study.

    Civil penalty: 60 penalty units.

    19-36B(3)  
    For the purposes of this section, cold-calling includes making unsolicited contact with a person:


    (a) in person; or


    (b) by telephone, email or other form of electronic communication.

    19-36B(4)  
    The Higher Education Provider Guidelines may set out conduct that is taken to be cold-calling for the purposes of this section.

    SECTION 19-36C   Use of third party contact lists  

    19-36C(1)  
    This section applies if a higher education provider:


    (a) receives a person's contact details from another person; and


    (b) contacts the student to market, advertise or promote a unit of study or a *course of study, or enrol the student in a unit of study or course of study.

    19-36C(2)  
    The higher education provider must not mention the possible availability of *FEE-HELP assistance for students undertaking the unit of study or *course of study.

    Civil penalty: 60 penalty units.

    19-36C(3)  
    Subsection (2) does not apply in circumstances specified in the Higher Education Provider Guidelines.

    SECTION 19-36D   Other marketing requirements  

    19-36D(1)  
    The Higher Education Provider Guidelines may set out requirements in relation to the marketing of courses in circumstances where assistance may be payable by the Commonwealth under Chapter 3.

    19-36D(2)  
    A higher education provider contravenes this subsection if the provider:


    (a) is subject to a requirement under subsection (1); and


    (b) fails to comply with the requirement.

    Civil penalty: 60 penalty units.

    SECTION 19-36E   19-36E   Requirements relating to requests for Commonwealth assistance  


    A higher education provider must not complete any part of a *request for Commonwealth assistance that a student is required to complete.

    Civil penalty: 120 penalty units.

    SECTION 19-37   Requiring membership of certain organisations or payment of certain amounts 

    19-37(1)  
    A higher education provider must not:


    (a) require a person to be or to become a member of an organisation of students, or of students and other persons; or


    (b) require a person enrolled with, or seeking to enrol with, the provider to pay to the provider or any other entity an amount in respect of an organisation of students, or of students and other persons;

    unless the person has chosen to be or to become a member of the organisation.

    19-37(2)  
    A higher education provider must not require a person enrolled with, or seeking to enrol with, the provider to pay to the provider or any other entity an amount for the provision to students of an amenity, facility or service that is not of an academic nature, unless the person has chosen to use the amenity, facility or service.

    19-37(3)  
    Subsection (2) does not apply to an amount that the higher education provider requires the person to pay if the amount is for goods or services that:


    (a) are essential for the course of study in which the person is enrolled or seeking to enrol; and


    (b) the person has the choice of acquiring from, but does not acquire from, a supplier other than the higher education provider; and


    (c) either:


    (i) are goods that become the property of the person that are not intended to be consumed during the course of study; or

    (ii) consist of food, transport or accommodation associated with provision of field trips in connection with the course of study.

    19-37(4)  


    Subsection (2) does not apply to a *student services and amenities fee that the higher education provider requires the person to pay.

    19-37(5)  


    A student services and amenities fee is an amount:


    (a) that a higher education provider requires a person enrolled, or seeking to enrol, with the provider to pay for a period starting on or after 1 January 2012 to support the provision to students of amenities and services not of an academic nature, regardless of whether the person chooses to use any of those amenities and services; and


    (b) that is determined by the provider in accordance with the Administration Guidelines; and


    (c) that is not more than the amount worked out for that period for the person in accordance with those guidelines; and


    (d) that is payable on a day determined in accordance with those guidelines; and


    (e) that is such that the total of all amounts that are covered by paragraphs (a), (b), (c) and (d) for the same provider and person is not more than $263, for amounts for periods falling wholly or partly within a calendar year starting on or after 1 January 2012.

    Note 1:

    The Administration Guidelines are made by the Minister under section 238-10.

    Note 2:

    The amount of $263 mentioned in subparagraph (5)(e) is indexed under Part 5-6.

    Note 3:

    Paragraph 19-102(3)(b) prevents a student services and amenities fee from being a fee as defined in section 19-102.

    19-37(6)  


    If a higher education provider determines a *student services and amenities fee, the provider:


    (a) must publish, in accordance with the Administration Guidelines:


    (i) enough information to enable a person liable to pay the fee to work out the amount of the fee; and

    (ii) notice of the day on which the fee is payable; and


    (b) must, on request by a person who is or may become liable to pay the fee, inform the person of the amount of the fee and the day on which it is or would be payable.

    SECTION 19-38   Higher education providers' expenditure of student services and amenities fees  

    19-38(1)  
    A higher education provider must not spend an amount paid to the provider as a *student services and amenities fee to support:


    (a) a political party; or


    (b) the election of a person as a member of:


    (i) the legislature of the Commonwealth, a State or a Territory; or

    (ii) a local government body.

    19-38(2)  
    If a higher education provider pays a person or organisation an amount paid to the provider as a *student services and amenities fee, the provider must make the payment on the condition that none of the payment is to be spent by the person or organisation to support:


    (a) a political party; or


    (b) the election of a person as a member of:


    (i) the legislature of the Commonwealth, a State or a Territory; or

    (ii) a local government body.

    19-38(3)  
    A higher education provider must not spend, for a purpose other than that specified in subsection (4), an amount paid to the provider as a *student services and amenities fee.

    19-38(4)  
    Subsection (3) does not prohibit expenditure for a purpose that relates to the provision of any of the following services:


    (a) providing food or drink to students on a campus of the higher education provider;


    (b) supporting a sporting or other recreational activity by students;


    (c) supporting the administration of a club most of whose members are students;


    (d) caring for children of students;


    (e) providing legal services to students;


    (f) promoting the health or welfare of students;


    (g) helping students secure accommodation;


    (h) helping students obtain employment or advice on careers;


    (i) helping students with their financial affairs;


    (j) helping students obtain insurance against personal accidents;


    (k) supporting debating by students;


    (l) providing libraries and reading rooms (other than those provided for academic purposes) for students;


    (m) supporting an artistic activity by students;


    (n) supporting the production and dissemination to students of media whose content is provided by students;


    (o) helping students develop skills for study, by means other than undertaking *courses of study in which they are enrolled;


    (p) advising on matters arising under the higher education provider's rules (however described);


    (q) advocating students' interests in matters arising under the higher education provider's rules (however described);


    (r) giving students information to help them in their orientation;


    (s) helping meet the specific needs of *overseas students relating to their welfare, accommodation and employment.

    Note:

    Examples of expenditure for a purpose that relates to the provision of a service specified in subsection (4) include:

  • (a) expenditure by the higher education provider in directly providing the service; and
  • (b) expenditure by the higher education provider in getting someone else to provide the service or subsidising the provision of the service by someone else; and
  • (c) expenditure by the higher education provider on infrastructure for the provision of the service.
  • 19-38(5)  
    Without limiting who is a child of a person for the purposes of paragraph (4)(d), someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.

    19-38(6)  
    To avoid doubt, subsections (1), (2) and (3) apply to an advance made to a higher education provider on account of *SA-HELP assistance in the same way as they apply to an amount paid to the provider as a *student services and amenities fee.

    Note:

    An amount of SA-HELP assistance paid to a provider is an amount paid to the provider as a student services and amenities fee because, under section 128-1, the SA-HELP assistance is paid to discharge the student's liability to pay the fee.

    19-38(7)  
    Subsection (6) does not limit subsection 164-10(2).

    Note:

    Subsection 164-10(2) applies to an advance on account of an amount the conditions that would apply to payment of the amount.

    SECTION 19-40   Compliance with the tuition assurance requirements  

    19-40(1)  


    A higher education provider, other than a *Table A provider or a body declared under subsection (2), must comply with the *tuition assurance requirements.

    Civil penalty: 60 penalty units.

    19-40(2)  
    The Minister may, by declaration in writing, exempt a specified higher education provider from the requirement in subsection (1).

    19-40(3)  


    An exemption:


    (a) is subject to such conditions as are specified in the exemption; and


    (b) may be expressed to be in force for a period specified in the exemption.

    19-40(4)  
    An exemption given under this section is not a legislative instrument.

    SECTION 19-42   Assessment of students as academically suited  

    19-42(1)  
    Before enrolling a student in a unit of study, a higher education provider must assess the student as academically suited to undertake the unit concerned.

    Civil penalty: 120 penalty units.

    19-42(2)  
    The assessment for the purposes of subsection (1) must be done in accordance with any requirements specified in the Higher Education Provider Guidelines.

    SECTION 19-45   Student grievance and review procedures   Must have grievance and review procedures

    19-45(1)  
    A higher education provider must have:


    (a) a grievance procedure for dealing with complaints by the provider's students, and persons who seek to enrol in *courses of study with the provider, relating to non-academic matters; and


    (b) a grievance procedure for dealing with complaints by the provider's students relating to academic matters; and


    (c) a review procedure for dealing with review of decisions made by the provider:


    (i) under section 36-20; or

    (ii) relating to assistance under Chapter 3.
    Note:

    Part5-7 also deals with reconsideration and review of decisions.

    19-45(2)  
    Except where the provider is a *Table A provider, the grievance procedures referred to in paragraphs (1)(a) and (b) must comply with the requirements of the Higher Education Provider Guidelines.

    19-45(3)  
    The review procedure referred to in paragraph (1)(c) must comply with the requirements of the Higher Education Provider Guidelines. Guidelines may provide for matters relating to reviews

    19-45(4)  


    The Higher Education Provider Guidelines may provide for matters relating to reviews of decisions made by higher education providers:


    (a) under section 36-20; or


    (b) relating to assistance under Chapter 3;

    including procedures that are to be followed by *review officers when reviewing those decisions.

    Provider to comply with procedures

    19-45(5)  


    The provider must comply with its grievance and review procedures.

    Civil penalty: 60 penalty units.

    Provider to provide information about procedures

    19-45(6)  
    The provider must publish, and make publicly available, up to date information setting out the procedures. Provider to provide information about other complaint mechanisms

    19-45(7)  
    The provider must publish information about any other complaint mechanisms available to complain about the provider's decisions.

    SECTION 19-50   Higher education providers to appoint review officers  

    19-50(1)  


    A higher education provider must appoint a *review officer to undertake reviews of decisions made by the provider:


    (a) under section 36-20; or


    (b) relating to assistance under Chapter 3.

    Note:

    The Secretary may delegate to a review officer of a higher education provider the power to reconsider decisions of the provider under Division 209: see subsection 238-1(2).

    19-50(2)  


    A review officer of a higher education provider is a person, or a person included in a class of persons, whom:


    (a) the chief executive officer of the provider; or


    (b) a delegate of the chief executive officer of the provider;

    has appointed to be a review officer of the provider for the purposes of reviewing decisions made by the provider:


    (c) under section 36-20; or


    (d) relating to assistance under Chapter 3.

    SECTION 19-55   19-55   Review officers not to review own decisions  
    A higher education provider must ensure that a *review officer of the provider:


    (a) does not review a decision that the review officer was involved in making; and


    (b) in reviewing a decision of the provider, occupies a position that is senior to that occupied by any person involved in making the original decision.

    SECTION 19-60   Procedures relating to personal information  

    19-60(1)  


    A higher education provider must comply with the Australian Privacy Principles in respect of *personal information obtained for the purposes of section 36-20 or Chapter 3 or 4.

    19-60(2)  
    A higher education provider must have a procedure under which a student enrolled with the provider may apply to the provider for, and receive, a copy of *personal information that the provider holds in relation to that student.

    19-60(3)  
    The provider must comply with:


    (a) the requirements of the Higher Education Provider Guidelines relating to *personal information in relation to students; and


    (b) the procedure referred to in subsection (2).

    Subdivision 19-E - The compliance requirements  

    SECTION 19-65   Basic requirements  

    19-65(1)  


    A higher education provider must comply with:


    (a) this Act and the regulations; and


    (b) the Guidelines made under section 238-10 that apply to the provider; and


    (c) a condition imposed on the provider's approval as a higher education provider.

    19-65(2)  
    A higher education provider must provide information to the Minister in relation to the affairs of the provider in accordance with the requirements of this Act.

    19-65(3)  
    A higher education provider's administrative arrangements must support the provision of assistance under this Act.

    SECTION 19-67   Special requirements for student services, amenities, representation and advocacy in 2012 and later years  

    19-67(1)  
    A higher education provider that receives a grant under Part 2-2 in respect of the year 2012 or a later year must comply in respect of the year with the requirements of the Student Services, Amenities, Representation and Advocacy Guidelines as those guidelines were in force on the 30 June just before the year.

    Note:

    The Student Services, Amenities, Representation and Advocacy Guidelines are made by the Minister under section 238-10.

    19-67(2)  
    The Student Services, Amenities, Representation and Advocacy Guidelines may provide for:


    (a) requirements for providing students with information about services that are not of an academic nature and that support students; and


    (b) requirements for providing students with access to such services; and


    (c) requirements relating to the representation and advocacy of the interests of students.

    19-67(3)  
    However, the Student Services, Amenities, Representation and Advocacy Guidelines cannot require a provider to fund an organisation of students, or of students and other persons.

    19-67(4)  
    Subsection 19-65(1) does not apply in relation to the Student Services, Amenities, Representation and Advocacy Guidelines.

    SECTION 19-70   Provider to provide statement of general information  

    19-70(1)  
    A higher education provider must give to the Minister such statistical and other information that the Minister by notice in writing requires from the provider in respect of:


    (a) the provision of higher education by the provider; and


    (b) compliance by the provider with the requirements of this Act.

    19-70(2)  
    The information must be provided:


    (a) in a form (if any) approved by the Minister for the information; and


    (b) in accordance with such other requirements as the Minister makes.

    19-70(3)  
    A notice under this section must not require the giving of information that a higher education provider is required to give to the Minister under section 19-95.

    19-70(4)  


    A higher education provider contravenes this subsection if the provider:


    (a) is subject to a requirement under this section; and


    (b) does not comply with the requirement.

    Civil penalty: 60 penalty units.

    SECTION 19-71   Co-operation with HESA and TEQSA investigators  

    19-71(1)  
    A higher education provider must co-operate with *HESA investigators and *TEQSA investigators who are performing functions or exercising powers under this Act.

    19-71(2)  
    A higher education provider must not obstruct or hinder a *HESA investigator or a *TEQSA investigator who is performing functions or exercising powers under this Act.

    Civil penalty: 60 penalty units.

    SECTION 19-72   Providers must keep records  

    19-72(1)  
    A higher education provider must keep records of a kind, in the manner and for the period specified in the Higher Education Provider Guidelines.

    19-72(2)  
    A higher education provider contravenes this subsection if the provider:


    (a) is subject to a requirement under this section; and


    (b) does not comply with the requirement.

    Civil penalty: 60 penalty units.

    SECTION 19-73   Providers must publish information  

    19-73(1)  
    A higher education provider must publish information of the kind, in the manner and within the period specified in the Higher Education Provider Guidelines.

    19-73(2)  
    A higher education provider contravenes this subsection if the provider:


    (a) is subject to a requirement under this section; and


    (b) does not comply with the requirement.

    Civil penalty: 60 penalty units.

    SECTION 19-75   19-75   Notice of events that affect provider's ability to comply with conditions of Commonwealth assistance  


    A higher education provider must by writing inform the Minister of any event affecting:


    (a) the provider; or


    (b) a *related body corporate of the provider;

    that may significantly affect the provider's capacity to meet the conditions of grants under this Chapter or the *quality and accountability requirements.

    Civil penalty: 60 penalty units.

    SECTION 19-77   19-77   Notice of events affecting accreditation  


    A higher education provider must by writing inform the Minister of any event affecting:


    (a) the provider; or


    (b) a *related body corporate of the provider; that relates to:


    (c) the provider's authority conferred by or under the *TEQSA Act to self-accredit one or more *courses of study; or


    (d) TEQSA's accreditation of a course of study that is an *accredited course in relation to the provider.

    Civil penalty: 60 penalty units.

    SECTION 19-78   Notice of events significantly affecting TEQSA registration  

    19-78(1)  


    A higher education provider must by writing inform the Minister of any event significantly affecting:


    (a) the provider; or


    (b) a *related body corporate of the provider;

    that relates to the provider's registration as a *registered higher education provider.

    Civil penalty: 60 penalty units.

    19-78(2)  
    If a higher education provider informs the Minister of an event under section 19-77, the provider need not inform the Minister of the event under this section.

    SECTION 19-80   Compliance assurance - provider (other than Table A provider)  

    19-80(1)  
    The Minister may require a higher education provider (other than a *Table A provider) to be audited as to compliance with any one or more of the following requirements:


    (a) the *financial viability requirements;


    (b) the *fairness requirements;


    (c) the *compliance requirements;


    (d) the *contribution and fee requirements.

    19-80(2)  
    The audit must be conducted:


    (a) by a body determined in writing by the Minister; and


    (b) at such time or times, and in such manner, as the Minister requires.

    19-80(2A)  


    To avoid doubt, if the Minister makes a determination under subsection (2) in relation to *TEQSA, the determination is not a direction for the purposes of subsection 136(2) of the *TEQSA Act.

    19-80(3)  
    The provider must:


    (a) fully co-operate with the auditing body in the course of its audit; and


    (b) pay to the auditing body any charges payable for such an audit.

    19-80(3A)  


    A higher education provider contravenes this subsection if the provider:


    (a) is being audited under this section; and


    (b) does not co-operate with the auditing body in the course of its audit.

    Civil penalty: 60 penalty units.

    19-80(4)  
    A determination made under paragraph (2)(a) is not a legislative instrument.

    SECTION 19-82   Compliance notices  

    Grounds for giving a compliance notice

    19-82(1)  
    The Minister may give a higher education provider a written notice (a compliance notice ) in accordance with this section if the Minister is satisfied that the provider has not complied with, or is awareof information that suggests that the provider may not comply with, one or more of the following:


    (a) this Act or the regulations;


    (b) the Guidelines made under section 238-10 that apply to the provider;


    (c) a condition imposed on the provider's approval as a higher education provider. Content of compliance notice

    19-82(2)  
    The compliance notice must:


    (a) set out the name of the provider to which the notice is given; and


    (b) set out brief details of the non-compliance or possible non compliance; and


    (c) specify action that the provider must take, or refrain from taking, in order to address the non-compliance or possible non-compliance; and


    (d) specify a reasonable period within which the provider must take, or refrain from taking, the specified action; and


    (e) if the Minister considers it appropriate - specify a reasonable period within which the provider must provide the Minister with evidence that the provider has taken, or refrained from taking, the specified action; and


    (f) in any case - state that a failure to comply with the notice is a breach of a *quality and accountability requirement which may lead to the provider's approval as a higher education provider being suspended or revoked; and


    (g) in any case-set out any other matters specified in the Higher Education Provider Guidelines for the purposes of this paragraph. Matters that Minister must consider in giving compliance notice

    19-82(3)  
    In deciding whether to give the compliance notice, the Minister must consider all of the following matters:


    (a) whether the non-compliance or possible non compliance is of a minor or major nature;


    (b) the period for which the provider has been approved as a higher education provider;


    (c) the provider's history of compliance with:


    (i) this Act and the regulations; and

    (ii) the Guidelines made under section 238-10 that apply to the provider; and

    (iii) any conditions imposed on the provider's approval as a higher education provider;


    (d) the impact of the higher education provider's non-compliance or possible non-compliance, and of the proposed compliance notice, on:


    (i) the provider's students; and

    (ii) the provision of higher education generally;


    (e) the public interest;


    (f) any other matter specified in the Higher Education Provider Guidelines for the purposes of this paragraph. Higher Education provider to comply with compliance notice

    19-82(4)  


    A higher education provider must comply with a compliance notice given to the provider under this section.

    Civil penalty: 60 penalty units.

    Variation and revocation of compliance notice

    19-82(5)  
    The Minister may, by written notice given to the higher education provider, vary or revoke a compliance notice if, at the time of the variation or revocation, the Minister considers that taking such action is in the public interest.

    Note:

    A variation could, for example, specify different action to be taken by the provider or a different period for complying with the notice.

    19-82(6)  
    In deciding whether to vary or revoke the compliance notice, the Minister must consider any submissions that are received from the higher education provider before the end of the period mentioned in paragraph (2)(d). Compliance notice not required before suspending or revoking approval

    19-82(7)  
    To avoid doubt, the Minister need not give a compliance notice under this section before suspending or revoking the provider's approval as a higher education provider in accordance with Division 22.

    Subdivision 19-F - What are the contribution and fee requirements?  

    SECTION 19-85   19-85   Basic requirement  
    A higher education provider must charge, in accordance with the requirements of this Act, *student contribution amounts and *tuition fees for each unit of study in which it enrols students.

    SECTION 19-87   Determining student contribution amounts for all places in units  

    19-87(1)  
    This section applies to a unit of study:


    (a) that a higher education provider provides or proposes to provide during a period ascertained in accordance with the Higher Education Provider Guidelines; and


    (b) in relation to which the provider may advise a person that he or she is a *Commonwealth supported student.

    19-87(2)  


    The provider must determine, for places in the unit, one or more *student contribution amounts that are to apply to students who may enrol in the unit during the period.

    19-87(2A)  


    In determining more than one *student contribution amount under subsection (2), the provider may have regard to any matters the provider considers appropriate, other than matters specified in the Higher Education Provider Guidelines as matters to which a provider must not have regard.

    19-87(3)  


    The provider must not vary a *student contribution amount unless the provider:


    (a) does so:


    (i) before the date ascertained in accordance with the Higher Education Provider Guidelines; and

    (ii) in circumstances specified in the Higher Education Provider Guidelines; or


    (b) does so with the written approval of the Minister.

    SECTION 19-88   19-88   Determining student contribution amounts for places in units for student cohorts  
    (Repealed by No 121 of 2006)

    SECTION 19-90   Determining tuition fees for all students  

    19-90(1)  


    This section applies to a unit of study that a higher education provider provides or proposes to provide during a period ascertained in accordance with the Higher Education Provider Guidelines.

    19-90(2)  


    The provider must determine, for the unit, one or more *fees that are to apply to students who may enrol in the unit during the period.

    19-90(3)  


    In determining more than one *fee under subsection (2), the provider may have regard to any matters the provider considers appropriate, other than matters specified in the Higher Education Provider Guidelines as matters to which a provider must not have regard.

    19-90(4)  


    The provider must not vary a *fee unless the provider:


    (a) does so:


    (i) before the date ascertained in accordance with the Higher Education Provider Guidelines; and

    (ii) in circumstances specified in the Higher Education Provider Guidelines; or


    (b) does so with the written approval of the Minister.

    SECTION 19-91   19-91   Determining tuition fees for students in student cohorts  
    (Repealed by No 121 of 2006)

    SECTION 19-95   Schedules of student contribution amounts for places and tuition fees  

    19-95(1)  


    A higher education provider must give the Minister a schedule of the *student contribution amounts for places, and *tuition fees, determined under sections 19-87 and 19-90 for all the units of study it provides or proposes to provide during a period ascertained in accordance with the Higher Education Provider Guidelines. It must give the schedule:


    (a) in a form approved by the Minister; and


    (b) in accordance with the requirements that the Minister determines in writing.

    19-95(2)  


    The provider must:


    (a) ensure that the schedule provides sufficient information to enable a person to work out, for each unit of study the provider provides or is to provide:


    (i) the person's *student contribution amount; or

    (ii) if the provider determined more than one student contribution amount for places in a unit under section 19-87 - which of those student contribution amounts applies to the person; and


    (aa) ensure that the schedule provides sufficient information to enable a person to work out, for each unit of study the provider provides or is to provide:


    (i) the person's *tuition fee; and

    (ii) if the provider determined more than one tuition fee for a unit under section 19-90 - which of those tuition fees applies to the person; and


    (b) publish the schedule for a particular period by the date ascertained in accordance with the Higher Education Provider Guidelines; and


    (c) ensure that the schedule is available to all students enrolled, and persons seeking to enrol, with the provider on request and without charge.

    Civil penalty: 60 penalty units.

    Replacement schedules

    19-95(3)  


    If:


    (a) the provider has given the Minister a schedule (the previous schedule ) under:


    (i) subsection (1); or

    (ii) this subsection; and


    (b) the provider:


    (i) varies a *student contribution amount in the previous schedule; or

    (ii) varies a *tuition fee in the previous schedule;

    the provider must:


    (c) by written notice given to the Minister:


    (i) withdraw the previous schedule; and

    (ii) inform the Minister of the variation; and


    (d) give the Minister a replacement schedule incorporating the variation.

    Note 1:

    The provider must comply with subsection 19-87(3) when varying a student contribution amount.

    Note 2:

    The provider must comply with subsection 19-90(4) when varying a tuition fee.

    Civil penalty: 60 penalty units.

    19-95(4)  


    Subsections (1) and (2) apply to the replacement schedule in a corresponding way to the way in which they apply to the previous schedule.

    SECTION 19-97   19-97   Information on student contribution amounts for places and tuition fees for student cohorts  
    (Repealed by No 121 of 2006)

    SECTION 19-100   19-100   Limits on fees for courses of study  


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

    SECTION 19-101   19-101   Meaning of student cohort  
    (Repealed by No 121 of 2006)

    SECTION 19-102   Meaning of fee  

    19-102(1)  
    A fee includes any tuition, examination or other fee payable to a higher education provider by a person enrolled with, or applying for enrolment with, the provider.

    19-102(2)  
    A fee may also include any fee payable to the provider in respect of the granting of a *higher education award.

    19-102(3)  
    A fee does not include a fee that is:


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


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


    (c) payable in respect of residential accommodation; or


    (d) imposed in accordance with the Higher Education Provider Guidelines for the imposition of fees in respect of *overseas students; or


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


    (f) determined, in accordance with the Higher Education Provider Guidelines, to be a fee of a kind that is incidental to studies that may be undertaken with a higher education provider; or


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

    19-102(4)  


    The definition of fee in this section does not apply for the purposes of section 104-50.

    SECTION 19-105   19-105   Meaning of tuition fee  


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


    (a) if only one fee has been determined for the unit under subsection 19-90(2) - that fee; or


    (b) if more than one fee has been determined for the unit under that subsection - the fee determined under that subsection that applies to the person.

    Subdivision 19-G - The compact and academic freedom requirements  

    SECTION 19-110   Table A providers and Table B providers must enter into mission based compacts  

    19-110(1)  
    A higher education provider that is a *Table A provider or a *Table B provider must, in respect of each year for which a grant is paid to the provider under this Act, enter into a mission based compact with the Commonwealth for a period that includes that year.

    19-110(2)  
    The Minister may, on behalf of the Commonwealth, enter into a mission based compact with a *Table A provider or a *Table B provider.

    19-110(3)  
    The mission based compact must include:


    (a) a statement of the provider's mission; and


    (b) a statement of the provider's strategies for teaching and learning; and


    (c) a statement of the provider's strategies for:


    (i) undertaking research; and

    (ii) research training; and

    (iii) innovation.
    Note:

    A mission based compact may include other matters.

    19-110(4)  
    The *Secretary must cause a copy of each mission based compact to be published on the Department's website within 28 days after the making of the compact.

    SECTION 19-115   19-115   Provider to have policy upholding free intellectual inquiry  


    A higher education provider that is a *Table A provider or a *Table B provider must have a policy that upholds free intellectual inquiry in relation to learning, teaching and research.

    Division 22 - When does a body cease to be a higher education provider?  

    Subdivision 22-A - General  

    SECTION 22-1   Cessation of approval as a provider  

    22-1(1)  
    A body ceases to be approved as a higher education provider:


    (a) if a decision to revoke the approval is in effect under Subdivision 22-AA, 22-B or 22-D; or


    (b) while the approval is suspended under section 22-30; or


    (c) if the notice of the provider's approval ceases to have effect under Part 2 of Chapter 3 (parliamentary scrutiny of legislative instruments) of the Legislation Act 2003.

    22-1(2)  


    If a body ceases to be approved as a higher education provider, the Minister must ensure that *TEQSA is notified, in writing, of the cessation.

    Subdivision 22-AA - Revocation of approval if registration ceases or winding up order made  

    SECTION 22-2   Automatic revocation of approval if registration ceases  

    22-2(1)  
    The Minister must revoke a body's approval as a higher education provider if:


    (a) the body is no longer a *registered higher education provider; and


    (b) in a case where *TEQSA has made either of the following decisions under the *TEQSA Act, the decision has not been set aside or quashed, and is no longer *subject to review:


    (i) a decision under section 36 of that Act to refuse an application to renew the body's registration under Part 3 of that Act;

    (ii) a decision under section 101 of that Act to cancel the body's registration under Part 3 of that Act.

    22-2(2)  


    The Minister must notify the body in writing of the revocation. The notice must specify that the revocation takes effect on the day that the notice is registered in the *Federal Register of Legislation.

    22-2(3)  


    A notice of revocation under subsection (2) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the notice.

    22-2(4)  


    A decision of the Minister to revoke a body's approval as a higher education provider takes effect on the day that the notice of revocation under subsection (2) is registered in the *Federal Register of Legislation.

    SECTION 22-3   Automatic revocation of approval if winding up order made  

    22-3(1)  
    The Minister must revoke a body's approval as a higher education provider if:


    (a) an order is made by a court, or by the Australian Securities and Investments Commission under Part 5.4C of the Corporations Act 2001, for the winding up of the body; and


    (b) the order has not been set aside or quashed, and is no longer *subject to review.

    22-3(2)  


    The Minister must notify the body in writing of the revocation. The notice must specify that the revocation takes effect on the day that the notice is registered in the *Federal Register of Legislation.

    22-3(3)  


    A notice of revocation under subsection (2) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the notice.

    22-3(4)  


    A decision of the Minister to revoke a body's approval as a higher education provider takes effect on the day that the notice of revocation under subsection (2) is registered in the *Federal Register of Legislation.

    Subdivision 22-B - Revocation for cause  

    SECTION 22-5   22-5   Revocation of approval if application for approval as a provider is false or misleading  
    The Minister may revoke a body's approval as a higher education provider if the Minister:


    (a) is satisfied that the body's application under section 16-40 for approval as a higher education provider contained material that was false or misleading; and


    (b) complies with the requirements of section 22-20.

    SECTION 22-7   Revocation of approval if providing education and/or conducting research ceases to be the body's principal purpose  

    22-7(1)  
    The Minister may revoke a body's approval as a higher education provider if:


    (a) the body's principal purpose is no longer, or is no longer taken to be, either or both of the following:


    (i) to provide education;

    (ii) to conduct research; and


    (b) (Repealed by No 72 of 2011)


    (c) the Minister complies with the requirements of section 22-20.

    22-7(2)  


    The Minister may also revoke a body's approval as a higher education provider if:


    (a) the Minister is satisfied that any of the body's purposes conflict with the body's principal purpose of providing education and/or conducting research; and


    (b) the Minister complies with the requirements of section 22-20.

    SECTION 22-10   Revocation of approval if status or accreditation changes   Bodies that cease to be Australian universities

    22-10(1)  
    The Minister may revoke a body's approval as a higher education provider if:


    (a) the body was an *Australian university at the last time the body became a higher education provider; and


    (b) since that time, the body has ceased to be an Australian university; and


    (c) the Minister complies with the requirements of section 22-20.

    Bodies that cease to be self-accrediting entities

    22-10(2)  
    The Minister may revoke a body's approval as a higher education provider if:


    (a) the body was a *self-accrediting entity at the last time the body became a higher education provider; and


    (b) since that time, the body has ceased to be a self-accrediting entity; and


    (c) the Minister complies with the requirements of section 22-20.

    Self-accrediting entities that cease to have authority to accredit courses

    22-10(2A)  


    The Minister may revoke a body's approval as a higher education provider if:


    (a) the body was a *self-accrediting entity at the last time the body became a higher education provider; and


    (b) the body is no longer authorised by or under the *TEQSA Act to self-accredit a *course of study that the body was authorised to self-accredit at that time; and


    (c) the Minister complies with the requirements of section 22-20.

    Bodies that were non self-accrediting providers

    22-10(3)  
    The Minister may revoke a body's approval as a higher education provider if:


    (a) the body was a *non self-accrediting entity at the last time the body became a higher education provider; and


    (b) since that time, the body has ceased to be a non self-accrediting entity; and


    (c) the Minister complies with the requirements of section 22-20.

    Bodies offering courses that cease to be accredited courses

    22-10(4)  


    The Minister may revoke a body's approval as a higher education provider if:


    (a) the body was a *self-accrediting entity or a *non self-accrediting entity at the last time the body became a higher education provider; and


    (b) a *course of study offered by the body that was an *accredited course ceases to be an accredited course; and


    (c) the Minister complies with the requirements of section 22-20

    Bodies that no longer meet certain approval criteria

    22-10(5)  


    The Minister may revoke a body's approval as a higher education provider if:


    (a) the body no longer meets a requirement set out in:


    (i) paragraph 16-25(1)(a); or

    (ii) paragraph 16-25(1)(da); and


    (b) the Minister complies with the requirements of section 22-20.

    22-10(6)  
    (Repealed by No 23 of 2013)

    SECTION 22-15   Revocation of approval as a provider for a breach of conditions or the quality and accountability requirements  

    22-15(1)  
    The Minister may revoke a body's approval as a higher education provider if the Minister:


    (a) is satisfied that the body has:


    (i) breached a condition of a grant made to the body under Part 2-2, 2-2A, 2-3 or 2-4; or

    (ii) breached a *quality and accountability requirement; or

    (iii) breached a condition imposed on the body's approval; and


    (b) is satisfied that it is appropriate to take that action (see subsection (2)); and


    (c) complies with the requirements of section 22-20.

    Note:

    Section 16-60 allows conditions to be imposed on the body's approval.

    22-15(2)  
    Without limiting the matters that the Minister may consider in deciding whether it is appropriate under this section to revoke a body's approval as a higher education provider, the Minister may consider any or all of the following matters:


    (a) whether the breach in question is of a minor or major nature;


    (b) whether the breach has occurred before and, if so, how often;


    (c) the impact that the breach may have on the body's students;


    (d) the impact of the breach on the higher education provided by the body;


    (e) the impact of the breach on Australia's reputation as a provider of high quality higher education;


    (f) any other matter set out in the Higher Education Provider Guidelines.

    SECTION 22-17   Revocation of approval as a provider if provider etc. not a fit and proper person  

    22-17(1)  
    The Minister may revoke a body's approval as a higher education provider if the Minister:


    (a) is satisfied that:


    (i) the body; or

    (ii) at least one person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the body's affairs;
    is not a fit and proper person; and


    (b) complies with the requirements of section 22-20.

    22-17(2)  
    The Minister must, in deciding whether he or she is satisfied that a person is not a fit and proper person, take into account the matters specified in an instrument under subsection 16-25(4). The Minister may take into account any other matters he or she considers relevant.

    Subdivision 22-C - Process for decisions on revocation under Subdivision 22-B  

    SECTION 22-20   Process for revoking approval  

    22-20(1)  
    Before revoking a body's approval as a higher education provider under Subdivision 22-B, the Minister must give the body notice in writing:


    (a) stating that the Minister is considering revoking the body's approval; and


    (b) stating the reasons why the Minister is considering revoking the body's approval; and


    (c) inviting the body to make written submissions to the Minister within 28 days concerning why the approval should not be revoked.

    22-20(2)  
    In deciding whether or not to revoke a body's approval under Subdivision 22-B, the Minister must consider any submissions received from the body within the 28 day period.

    22-20(3)  
    The Minister must notify the body in writing of his or her decision whether to revoke the body's approval under Subdivision 22-B. The notice:


    (a) must be in writing; and


    (b) must be given within the period of 28 days following the period in which submissions may have been given to the Minister under subsection (1); and


    (c) if the Minister decides to revoke the body's approval - must specify that the revocation takes effect on the day that the notice is registered in the *Federal Register of Legislation.

    22-20(3A)  
    A notice of revocation under subsection (3) is a legislative instrument.

    22-20(4)  
    If no notice is given within the period provided for in subsection (3), the Minister is taken to have decided not to revoke the approval.

    22-20(5)  


    A decision of the Minister to revoke a body's approval as a higher education provider takes effect on the day that the notice of revocation under subsection (3) is registered in the *Federal Register of Legislation.

    22-20(6)  


    If the notice of revocation under subsection (3) ceases to have effect under Part 2 of Chapter 3 (parliamentary scrutiny of legislative instruments) of the Legislation Act 2003, then the decision to revoke the approval ceases to have effect at the same time.

    SECTION 22-22   22-22   Minister may seek information from TEQSA  
    (Repealed by No 23 of 2013)

    SECTION 22-23   22-23   Minister may seek information from relevant VET regulator  
    (Repealed by No 23 of 2013)

    SECTION 22-25   Determination retaining approval as a provider in respect of existing students  

    22-25(1)  


    The Minister may determine, in writing, that a revocation of a body's approval as a higher education provider under Subdivision 22-B is of no effect for the purposes of:


    (a) grants to the body under this Chapter; and


    (b) assistance payable to the body's students under Chapter 3;

    to the extent that the grants or assistance relate to students of the body who have not completed the *courses of study in which they were enrolled with the body on the day referred to in subsection 22-20(5).

    22-25(2)  
    The determination may be included in the notice of revocation under subsection 22-20(3).

    22-25(3)  
    The body is taken, for the purposes of this Act, to continue to be a higher education provider, but only to the extent referred to in subsection (1).

    22-25(4)  
    Subsection (3) does not prevent the Minister subsequently revoking the body's approval as a higher education provider under this Division.

    SECTION 22-30   Suspension of approval as a provider  

    22-30(1)  


    The Minister may, by legislative instrument, determine that, with effect from a specified day, a body's approval as a higher education provider is suspended pending the making of a decision under Subdivision 22-B as to whether to revoke the body's approval as a provider.

    22-30(2)  
    A copy of the determination must be given to the body concerned.

    22-30(2A)  


    Before the Minister makes a determination under subsection (1) in respect of a body, the Minister must give the body notice in writing:


    (a) stating that the Minister is considering suspending the body's approval; and


    (b) stating the reasons why the Minister is considering suspending the body's approval; and


    (c) inviting the body to respond to the Minister, in writing, within 14 days of the date of the notice.

    22-30(2B)  


    In deciding whether or not to make a determination under subsection (1), the Minister must consider any response received from the body within the 14 day period.

    22-30(3)  


    If the Minister makes a determination under subsection (1) in respect of a body, the Minister must give to the body a notice under section 22-20 within a reasonable period of time after giving a copy of the determination to the body.

    22-30(4)  
    A determination under this section:


    (a) takes effect accordingly on the day specified in the determination; and


    (b) ceases to have effect if the Minister decides not to revoke the body's approval as a higher education provider.

    SECTION 22-32   Determination retaining approval as a provider in respect of existing students following suspension of approval  

    22-32(1)  
    The Minister may determine, in writing, that a suspension of a body's approval as a higher education provider under section 22-30 is of no effect for the purposes of:


    (a) grants to the body under this Chapter; and


    (b) assistance payable to the body's students under Chapter 3;to the extent that the grants or assistance relate to students of the body who have not completed the *courses of study in which they were enrolled with the body on the day specified for the purposes of paragraph 22-30(4)(a).

    22-32(2)  
    A copy of the determination must be given to the body concerned.

    22-32(3)  
    The body is taken, for the purposes of this Act, to continue to be a higher education provider, but only to the extent referred to in subsection (1).

    22-32(4)  
    Subsection (3) does not prevent the Minister subsequently revoking the body's approval as a higher education provider under this Division.

    22-32(5)  
    A determination made under subsection (1) is not a legislative instrument.

    SECTION 22-35   22-35   Revocations are legislative instruments  
    (Repealed by No 160 of 2012)

    Subdivision 22-D - Revocation of approval on application  

    SECTION 22-40   Revocation of approval as a provider on application  

    22-40(1)  
    The Minister may revoke the approval of a body as a higher education provider if the body requests the Minister in writing to revoke the approval.

    22-40(2)  
    The request must be given to the Minister at least 30 days before the day on which the revocation is requested to have effect.

    22-40(3)  
    The Minister must cause the body to be notified of the revocation. The notice must:


    (a) be in writing; and


    (b) be given to the body at least 14 days before the day on which the revocation is to take effect.

    22-40(3A)  


    A notice of revocation under subsection (3) is a legislative instrument.

    22-40(4)  
    The revocation has effect on the day requested unless another day is specified in the notice under subsection (3).

    Subdivision 22-E - Notice of approval or revocation ceasing to have effect under the Legislation Act 2003  

    SECTION 22-45   Notice of approval ceasing to have effect under the Legislation Act 2003  

    22-45(1)  
    This section applies if:


    (a) a decision of the Minister to approve a body corporate as a higher education provider has taken effect; and


    (b) the body ceases to be approved as a higher education provider because the notice of the approval ceases to have effect under Part 2 of Chapter 3 (parliamentary scrutiny of legislative instruments) of the Legislation Act 2003.

    22-45(2)  
    The fact that the body ceases to be approved as a higher education provider does not:


    (a) affect:


    (i) the operation of this Act, or any instrument made under this Act, in relation to the body before the cessation; or

    (ii) anything duly done or suffered in relation to the body before the cessation; or


    (b) affect any right, privilege, obligation or liability acquired, accrued or incurred before the cessation; or


    (c) affect any penalty, forfeiture or punishment incurred in respect of the body having been a higher education provider; or


    (d) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment.

    Any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the body had not ceased to be approved as a higher education provider.

    SECTION 22-50   Notice of revocation ceasing to have effect under the Legislation Act 2003  

    22-50(1)  
    This section applies if:


    (a) a decision of the Minister to revoke a body's approval as a higher education provider has taken effect; and


    (b) the decision to revoke the approval ceases to have effect because the notice of revocation ceases to have effect under Part 2 of Chapter 3 (parliamentary scrutiny of legislative instruments) of the Legislation Act 2003.

    22-50(2)  
    The fact that the decision to revoke the approval ceases to have effect does not:


    (a) affect:


    (i) the operation of this Act, or any instrument made under this Act, in relation to the body before the cessation; or

    (ii) anything duly done or suffered in relation to the body before the cessation; or


    (b) affect any right, privilege, obligation or liability acquired, accrued or incurred before the cessation; or


    (c) affect any penalty, forfeiture or punishment incurred in respect of the body before the cessation; or


    (d) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment.

    Any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the decision to revoke the approval had not ceased to have effect.

    PART 2-2 - COMMONWEALTH GRANT SCHEME  

    Division 27 - Introduction  

    SECTION 27-1   27-1   What this Part is about  


    Grants are payable under this Part to higher education providers that meet certain requirements. These grants are paid in relation to Commonwealth supported places. Grants are subject to several conditions relating to the provision of Commonwealth supported places and other matters. Amounts of grants may be reduced, or some or all of a grant may be repayable if a condition is breached (see Part 2-5).
    Note:

    This Part does not apply to Table C providers: see section 5-1.

    SECTION 27-5   Guidelines  

    27-5(1)  
    The grants payable under this Part are also dealt with in the Commonwealth Grant Scheme Guidelines and the Tuition Fee Guidelines.

    27-5(2)  
    The provisions of this Part indicate:


    (a) when a particular matter is, or may be, dealt with in the guidelines; and


    (b) whether the matter is dealt with in the Commonwealth Grant Scheme Guidelines or the Tuition Fee Guidelines.

    Note 1:

    The Commonwealth Grant Scheme Guidelines and the Tuition Fee Guidelines are made by the Minister under section 238-10.

    Note 2:

    The Commonwealth Grant Scheme Guidelines may also deal with matters arising under section 93-10.

    Division 30 - Which higher education providers are eligible for a grant?  

    Subdivision 30-A - Basic rules  

    SECTION 30-1   Eligibility for grants  

    30-1(1)  
    A grant under this Part is payable, as a benefit to students, to a higher education provider, in respect of the year 2005 or a later year, if:


    (a) the provider:


    (i) is a *Table A provider; and

    (ii) has entered into a funding agreement with the Commonwealth under section 30-25 in respect of a period that includes that year; or


    (b) all of the following apply:


    (i) the provider is a higher education provider specified in the Commonwealth Grant Scheme Guidelines as a higher education provider that can be paid grants under this Part;

    (ii) the Minister has allocated a *number of Commonwealth supported places to the provider for that year under section 30-10;

    (iii) the provider has entered into a funding agreement with the Commonwealth under section 30-25 in respect of a period that includes that year.


    (c) (Repealed by No 104 of 2011)

    30-1(2)  
    However, a grant is payable to a higher education provider that is not a *Table A provider only if the grant relates only to *national priorities.

    SECTION 30-5   30-5   Maximum grants  
    (Repealed by No 104 of 2011)

    Subdivision 30-B - Allocation of places  

    SECTION 30-10   Allocation of places  

    30-10(1)  


    Before the commencement of a year, the Minister may, for that year, allocate a specified *number of Commonwealth supported places to:


    (a) a *Table A provider in relation to *designated courses of study; and


    (b) a higher education provider referred to in subparagraph 30-1(1)(b)(i).

    Note:

    The Minister does not allocate places to Table A providers in relation to non-designated courses of study.

    30-10(2)  
    The allocation must specify the distribution of those places between the *funding clusters.

    30-10(2A)  
    If the provider has indicated to the Minister its preferred distribution of those places, the Minister must have regard to that preferred distribution in deciding the distribution of those places.

    30-10(3)  
    (Repealed by No 104 of 2011)

    30-10(4)  
    If the provider is not a *Table A provider, the allocation must specify:


    (a) that it is only in respect of *national priorities; and


    (b) the number of places for each national priority for which the provider is allocated places.

    30-10(5)  


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

    SECTION 30-12   Designated courses of study  

    30-12(1)  
    Each of the following are designated courses of study in relation to a *Table A provider:


    (a) non-research *postgraduate courses of study;


    (b) *courses of study in medicine;


    (c) courses of study specified by the Minister under subsection (2).

    30-12(2)  
    The Minister may, by legislative instrument, specify *courses of study for the purposes of paragraph (1)(c).

    SECTION 30-15   30-15   Funding clusters  


    The funding clusters are:


    Funding clusters
    Law, Accounting, Administration, Economics, Commerce
    Humanities
    Mathematics, Statistics, Behavioural Science, Social Studies, Computing, Built Environment, Other Health
    Education
    Clinical Psychology, Allied Health, Foreign Languages, Visual and Performing Arts
    Nursing
    Engineering, Science, Surveying
    Dentistry, Medicine, Veterinary Science, Agriculture

    SECTION 30-20   30-20   National priorities  
    A national priority is a particular outcome:


    (a) that relates to the provision of higher education; and


    (b) that is an outcome specified in the Commonwealth Grant Scheme Guidelines as a national priority.

    Note:

    The following are examples of national priorities:

  • (a) increasing the number of persons undertaking particular courses of study;
  • (b) increasing the number of particular kinds of persons undertaking courses of study;
  • (c) increasing the number of persons in particular regions undertaking courses of study.
  • Subdivision 30-C - Funding agreements  

    SECTION 30-25   Funding agreements  

    30-25(1)  


    The Minister may, on behalf of the Commonwealth, enter into a funding agreement with a higher education provider relating to grants under this Part in respect of each year in a period of 3 years (the grant years ).

    30-25(1A)  
    In negotiating the agreement the Minister must have regard to all of the types of matters that the provider has indicated to the Minister it wishes to be specified in the agreement.

    30-25(2)  


    The agreement may specify conditions to which the grants are subject, that are additional to the conditions that apply under Division 36.
    Note:

    It is a condition of the grants that the provider comply with the agreement: see section 36-65.

    30-25(2A)  


    However, the agreement must not specify as a condition to which the grants are subject a matter in respect of which the Minister could have made a determination under subsection 36-15(2) (or could have made such a determination but for subsection 36-15(3)).
    Note:

    The Minister has the power under subsection 36-15(2) to determine that students are not to be enrolled as Commonwealth supported students in particular courses. The determination is disallowable (see subsection 36-15(3)).

    30-25(2B)  


    Where the agreement specifies conditions to which the grants are subject, that are additional to the conditions that apply under Division 36, those conditions must not relate to industrial relations matters.

    30-25(3)  
    Without limiting subsection (2), the agreement may specify:


    (aa) the *number of Commonwealth supported places allocated to the provider under section 30-10 for the grant year; and


    (a) in relation to one or more of the following:


    (i) places in *undergraduate courses of study;

    (ii) places in non-research *postgraduate courses of study;

    (iii) places in courses of study in medical programs;

    (iv) places in courses of study in *enabling courses;

    the minimum *number of Commonwealth supported places that the provider must provide in the grant year or grant years, or the maximum number of Commonwealth supported places that the provider may provide in the grant year or grant years, or both; and


    (b) the maximum number of Commonwealth supported places provided by the provider which can have a regional loading in the grant years; and


    (c) the maximum number of Commonwealth supported places provided by the provider which can have a medical student loading in the grant years; and


    (ca) the maximum number of Commonwealth supported places provided by the provider which can have an enabling loading in the grant years; and


    (cb) the maximum number of Commonwealth supported places provided by the provider which can have a transitional loading in the grant years; and


    (d) the maximum amount of regional loading that will be payable to the provider, under the Commonwealth Grant Scheme Guidelines, in the grant years; and


    (da) the maximum amount of enabling loading that will be payable to the provider, under the Commonwealth Grant Scheme Guidelines, in the grant years; and


    (e) the maximum amount of transitional loading that will be payable to the provider, under the Commonwealth Grant Scheme Guidelines, in the grant years; and


    (g) adjustments that will apply to the amount of a grant payable to the provider under this Part if the provider breaches a condition of the grant.

    30-25(4)  
    (Repealed by No 104 of 2011)

    SECTION 30-27   Funding agreement may specify maximum basic grant amounts  

    30-27(1)  
    A funding agreement may:


    (a) for a higher education provider that is a *Table A provider - specify a maximum basic grant amount payable to the provider for a grant year for:


    (i) *designated courses of study; and

    (ii) *non-designated courses of study; and


    (b) for a higher education provider that is not a Table A provider - specify a maximum basic grant amount payable to the provider for a grant year. Table A providers - maximum basic grant amounts for designated courses of study

    30-27(2)  
    The *maximum basic grant amount for a *Table A provider for *designated courses of study must not be less than the amount worked out under subsection 33-5(4) for the provider for the grant year. Table A providers - maximum basic grant amounts for non-designated courses of study

    30-27(3)  
    The *maximum basic grant amount for a *Table A provider for *non-designated courses of study must not be less than:


    (a) if a maximum basic grant amount was specified in the provider's funding agreement for the preceding year for non designated courses of study - the amount that was so specified; or


    (b)if a maximum basic grant amount was not specified in the provider's funding agreement for the preceding year for non-designated courses of study - the amount worked out under paragraph 33-5(5)(a) for the provider for the preceding year.

    30-27(4)  
    (Repealed by No 104 of 2011)

    SECTION 30-28   30-28   Funding agreement to be published  


    The *Secretary must cause a copy of each funding agreement to be published on the Department's website within 28 days after the making of the agreement.

    Division 33 - How are grant amounts worked out?  

    Subdivision 33-A - Basic rule  

    SECTION 33-1   How grant amount is worked out  

    33-1(1)  
    The amount of a grant payable to a higher education provider under this Part for a year is worked out by:


    (a) working out the *basic grant amount for the provider for that year under Subdivision 33-B; and


    (b) adding:


    (i) the amount of any regional loading worked out under the Commonwealth Grant Scheme Guidelines for the provider for that year; and

    (ii) the amount of any medical student loading worked out under the Commonwealth Grant Scheme Guidelines for the provider forthat year; and

    (iii) the amount of any enabling loading worked out under the Commonwealth Grant Scheme Guidelines for the provider for that year; and

    (iv) the amount of any transitional loading worked out under the Commonwealth Grant Scheme Guidelines for the provider for that year; and

    (v) the amount of any performance funding grant amount worked out under the Commonwealth Grant Scheme Guidelines for the provider for that year.


    (c) (Repealed by No 104 of 2011)

    33-1(1A)  
    (Repealed by No 104 of 2011)

    33-1(2)  
    Advances may be paid to a higher education provider under Subdivision 33-D.

    Note:

    Part 5-1 deals with how payments can be made.

    Subdivision 33-B - Basic grant amounts  

    SECTION 33-5   Basic grant amounts  

    33-5(1)  
    This section sets out how to work out the basic grant amount for a higher education provider for a year. Basic grant amounts for Table A providers

    33-5(2)  
    For a *Table A provider, the *basic grant amount for a year is the sum of:


    (a) the amount for *designated courses of study (see subsection (3)); and


    (b) the amount for *non-designated courses of study (see subsections (5) and (6)). Table A providers - amount for designated courses of study

    33-5(3)  
    For the purposes of paragraph (2)(a), the amount for *designated courses of study is the lesser of:


    (a) the sum of the amounts worked out, for each *funding cluster in which the provider has provided places in *designated courses of study, by multiplying:


    (i) the *number of Commonwealth supported places provided by the provider in designated courses of study in that funding cluster; by

    (ii) the *Commonwealth contribution amount for a place in that funding cluster; and


    (b) either:


    (i) if there is a *maximum basic grant amount specified in the provider's funding agreement for designated courses of study - that specified amount; or

    (ii) if there is no maximum basic grant amount specified in the provider's funding agreement for designated courses of study - the amount worked out under subsection (4).

    33-5(4)  
    For the purposes of subparagraph (3)(b)(ii), the amount is the sum of the amounts worked out, for each *funding cluster to which the Minister has allocated places to the provider under section 30-10, by multiplying:


    (a) the *number of Commonwealth supported places allocated to that funding cluster; by


    (b) the *Commonwealth contribution amount for a place in that funding cluster. Table A providers - amount for non-designated courses of study

    33-5(5)  
    For the purposes of paragraph (2)(b) and subject to subsection (6), the amount for *non-designated courses of study is the lesser of:


    (a) the sum of the amounts worked out, for each *funding cluster in which the provider has provided places in non designated courses of study, by multiplying:


    (i) the *number of Commonwealth supported places provided by the provider in non-designated courses of study in that funding cluster; by

    (ii) the *Commonwealth contribution amount for a place in that funding cluster; and


    (b) the *maximum basic grant amount specified in the provider's funding agreement in relation to non-designated courses of study.

    33-5(6)  
    If a *maximum basic grant amount is not specified in the provider's funding agreement in relation to *non-designated courses of study, the amount for non designated courses of study is the amount worked out under paragraph (5)(a). Basic grant amounts for non-Table A providers

    33-5(7)  
    For a provider that is not a *Table A provider, the *basic grant amount for a year is the lesser of:


    (a) the sum of the amounts worked out, for each *funding cluster in which the provider has provided places, by multiplying:


    (i) the *number of Commonwealth supported places provided by the provider in that funding cluster; by

    (ii) the *Commonwealth contribution amount for a place in that funding cluster; and


    (b) either:


    (i) if there is a *maximum basic grant amount specified in the provider's funding agreement - that specified amount; or

    (ii) if there is no maximum basic grant amount specified in the provider's funding agreement - the amount worked out under subsection (8).

    33-5(8)  
    For the purposes of subparagraph (7)(b)(ii), the amount is the sum of the amounts worked out, for each *funding cluster to which the Minister has allocated places to the provider under section 30-10, by multiplying:


    (a) the *number of Commonwealth supported places allocated to that funding cluster; by


    (b) the *Commonwealth contribution amount for a place in that funding cluster.

    SECTION 33-10   33-10   Commonwealth contribution amounts  


    The Commonwealth contribution amount , for a place in a *funding cluster, is:


    Commonwealth contribution amount
    Item Funding cluster Commonwealth
    contribution amount
    1 Law, Accounting, Administration, Economics, Commerce $1,765
    2 Humanities $4,901
    3 Mathematics, Statistics, Behavioural Science, Social Studies, Computing, Built Environment, Other Health $8,670
    4 Education $9,020
    5 Clinical Psychology, Allied Health, Foreign Languages, Visual and Performing Arts $10,662
    6 Nursing $11,903
    7 Engineering, Science, Surveying $15,156
    8 Dentistry, Medicine, Veterinary Science, Agriculture $19,235

    Note:

    Commonwealth contribution amounts are indexed under Part 5-6.

    SECTION 33-15   33-15   Increases in assistance for higher education providers meeting certain requirements  
    (Repealed by No 119 of 2007)

    SECTION 33-17   33-17   Reductions in assistance for higher education providers failing to meet certain requirements  
    (Repealed by No 89 of 2008)

    SECTION 33-20   33-20   Adjustments in accordance with guidelines  
    (Repealed by No 119 of 2007)

    SECTION 33-25   33-25   Adjustments  
    (Repealed by No 104 of 2011)

    SECTION 33-30   Working out the number of Commonwealth supported places provided  

    33-30(1)  
    The number of Commonwealth supported places that a higher education provider has provided during a particular year is a number equal to the number worked out as follows: Method statement


    Step 1.

    For each unit of study (other than a unit of study that wholly consists of *work experience in industry) that the provider provided that had its *census date during the year, multiply:

  • (a) the *EFTSL value of the unit; by
  • (b) the number of persons enrolled with the provider in that unit as *Commonwealth supported students.

  • Step 2.

    Add together all of the amounts worked out under step 1.

    33-30(2)  
    For the purposes of this section, if:


    (a) a unit of study provided by the provider forms part of more than one *course of study; and


    (b) the provider determines under subsection 169-28(2) an *EFTSL value of the unit for each such course;

    the unit is taken to be a different unit of study in respect of each such course.

    33-30(3)  


    To work out the *number of Commonwealth supported places that a higher education provider has provided as mentioned in an item of column 1 of the following table, apply the method statement in subsection (1) to the units of study mentioned in column 2 of that item.


    Item Column 1 Column 2
    To work out the number of Commonwealth supported places provided in ... apply the method statement in subsection (1) to ...
    1 a *funding cluster units provided by the provider in the funding cluster.
    2 *designated courses of study in a funding cluster units provided by the provider in the funding cluster in designated courses of study.
    3 *non-designated courses of study in a funding cluster units provided by the provider in the funding cluster in non-designated courses of study.

    SECTION 33-35   33-35   Funding clusters in which units of study are included  
    The Commonwealth Grant Scheme Guidelines may specify:


    (a) how to determine, for the purposes of this Act, the *funding clusters in which units of study are included; or


    (b) the particular funding cluster in which a particular unit of study is included for the purposes of this Act.

    Subdivision 33-C - Adjustments  

    SECTION 33-37   Adjustments for breach of section 19-37  

    33-37(1)  
    A higher education provider's *basic grant amount for the grant year is reduced by an adjustment in respect of the grant year if, on one or more occasions during the grant year, the provider breaches a condition imposed under section 19-37.

    33-37(2)  


    The adjustment under subsection (1) is an amount worked out using the formula:


    Reduction amount × Total places provided

    where:

    reduction amount
    is $100.

    Note:

    The reduction amount is indexed under Part 5-6.

    total places allocated
    (Repealed by No 104 of 2011)

    total places provided
    is the total *number of Commonwealth supported places provided by the higher education provider for the grant year.

    33-37(3)  
    This section does not apply in relation to a breach of a condition imposed under section 19-37 by a higher education provider if:


    (a) the breach consists of requiring a person to pay money to the provider or another entity; and


    (b) as a result of the requirement, the person paid money to the provider or other entity; and


    (c) the Minister has given a written notice to the provider under subsection (4); and


    (d) the provider or other entity repays the money to the person within 28 days after the Minister gave the notice to the provider.

    33-37(4)  
    If the Minister becomes aware that:


    (a) a higher education provider has breached a condition imposed under section 19-37; and


    (b) the breach consists of requiring a person to pay money to the provider or another entity;

    the Minister must give to the provider a written notice:


    (c) requiring repayment, within 28 days after the notice is given, of any money paid to the provider or any other entity as a result of the requirement; and


    (d) stating that failure to repay any such money within that period will result in a reduction under this section of the provider's *basic grant amount for the grant year in question.

    The notice may relate to more than one breach.

    33-37(5)  
    A failure by the Minister to give a notice under subsection (4) in relation to a breach of a condition imposed under section 19-37 does not prevent this section from applying in relation to the breach.

    33-37(6)  
    This section does not apply more than once in relation to a higher education provider's *basic grant amount for a grant year.

    Subdivision 33-D - Special purpose advances  

    SECTION 33-40   Advances for certain purposes  

    33-40(1)  


    The Minister may, if an amount has been specified under subsection (3A), determine that an advance is payable to a higher education provider, in respect of a year, in relation to expenditure of the provider for such purposes as the Minister determines.

    33-40(2)  
    The Minister may pay an advance to the provider under subsection (1) on such conditions (if any) as the Minister determines.

    33-40(3)  


    The total of the advances in respect of a year must not exceed the amount specified by the Minister under subsection (3A).

    33-40(3A)  


    The Minister may, by legislative instrument, specify an amount for the purposes of subsection (3).

    33-40(4)  
    If the Minister determines an advance for the provider in respect of a year, the amounts of grant payable to the provider under section 33-1 in respect of:


    (a) the year next following that year; or


    (b) the 2 years next following that year; or


    (c) the 3 years next following that year;

    are reduced by amounts that equal in total the amount of the advance.

    33-40(5)  
    Determinations under subsections (1) and (2), and reductions under subsection (4), must be made in accordance with Commonwealth Grant Scheme Guidelines.

    Division 36 - What are the conditions of receiving a grant?  

    Subdivision 36-A - General  

    SECTION 36-1   Condition of grant to comply with this Division  

    36-1(1)  
    A higher education provider receives a grant under this Part on condition that the provider complies with this Division.

    36-1(2)  
    Without limiting subsection (1), the following provisions of this Division do not of their own force require the provider to do any act or thing.

    Subdivision 36-B - Conditions relating to Commonwealth supported students  

    36-5   Meaning of Commonwealth supported student  

    36-5(1)  


    A person is a Commonwealth supported student , in relation to a unit of study, if:


    (a) the higher education provider with which he or she is enrolled in that unit has advised the person in writing that he or she is a Commonwealth supported student:


    (i) in relation to the unit; or

    (ii) if the person is undertaking a *course of study with the provider of which the unit forms a part - in relation to that course of study; and


    (b) at the end of the *census date for the unit, the higher education provider would not have been prohibited, under section 36-10 or 36-15, or both, from so advising the person.

    36-5(3)  
    However, the person is not a Commonwealth supported student in relation to the unit if he or she notifies an *appropriate officer of the provider that he or she does not wish to be a Commonwealth supported student in relation to the unit.

    36-5(4)  
    A notice under subsection (3):


    (a) must be in writing; and


    (b) must be given on or before the *census date for the unit.

    SECTION 36-10   Advice on whether a person is a Commonwealth supported student   When a provider must not advise that a person is Commonwealth supported

    36-10(1)  
    A higher education provider must not advise a person that he or she is a *Commonwealth supported student in relation to a unit of study unless:


    (a) the provider has entered into a funding agreement under section 30-25 for the year in which the person is undertaking the unit; and


    (b) the unit contributes to the requirements of a *course of study in which the person is enrolled with that provider or another higher education provider; and


    (c) the person meets the citizenship or residency requirements for the purposes of this paragraph (see subsections (2) and (2A)); and


    (d) (Repealed by No 104 of 2011)


    (i) is *covered by the person's *Student Learning Entitlement; or

    (ii) wholly consists of *work experience in industry; or

    (iii) is undertaken as part of an *enabling course; and


    (e) the person:


    (i) enrolled in the unit on or before the *census date for the unit; and

    (ii) at the end of the census date, remained so enrolled.

    36-10(2)  


    A person meets the citizenship or residency requirements for the purposes of paragraph (1)(c) if the person is:


    (a) an Australian citizen; or


    (b) a citizen of New Zealand who will be resident within Australia for the duration of the unit; or


    (c) a *permanent visa holder who will be resident within Australia for the duration of the unit.

    36-10(2A)  


    In determining, for the purposes of subparagraph (2)(b) or (c), whether a person will be resident within Australia for the duration of the unit of study, disregard any period of residence outside Australia if:


    (a) it cannot reasonably be regarded as indicating an intention to reside outside Australia for the duration of the unit; or


    (b) it is required for the purpose of completing a requirement of that unit.

    36-10(2B)  


    Despite subsections (2) and (2A), a person does not meet the citizenship or residency requirements under subsection (2), if the higher education provider reasonably expects that he or she will not undertake in Australia any units of study contributing to the *course of study of which the unit forms a part. Persons who do not wish to be Commonwealth supported

    36-10(3)  
    A higher education provider must not advise a person that he or she is a *Commonwealth supported student in relation to a unit of study if the person has notified an *appropriate officer of the provider that he or she does not wish to be a Commonwealth supported student in relation to the unit.

    36-10(4)  
    A notice under subsection (3):


    (a) must be in writing; and


    (b) must be given on or before the *census date for the unit. Additional requirement for non-Table A providers

    36-10(5)  
    A higher education provider that is not a *Table A provider must not advise a person that he or she is a *Commonwealth supported student in relation to a unit of study unless:


    (a) the unit in which the person is enrolled is within a *national priority; and


    (b) the provider has received a grant under this Part for that national priority for the year in which the person is undertaking the unit; and


    (c) if the national priority is a *course of study that has been specified in the Commonwealth Grant Scheme Guidelines to be a national priority - the unit is contributing to the requirements of that course. Additional requirement relating to work experience in industry

    36-10(6)  
    A higher education provider must not advise a person that he or she is a *Commonwealth supported student in relation to a unit of study that wholly consists of *work experience in industry unless:


    (a) the unit forms part of a *course of study; and


    (b) the person is enrolled, or has previously been enrolled, in another unit of study in that course:


    (i) that does not, or did not, wholly consist of work experience in industry; and

    (ii) in relation to which the person is, or was, a Commonwealth supported student.
    Units of study at full fee summer or winter schools

    36-10(7)  
    A higher education provider must not advise a person that he or she is a *Commonwealth supported student in relation to a unit of study if:


    (a) the person undertakes the unit wholly during a summer school period (the current summer school period ) or a winter school period (the current winter school period ); and


    (b) the provider has determined that this subsection applies to the unit.

    36-10(8)  


    A higher education provider may determine that subsection (7) applies to a unit of study only if each person who could undertake the unit during the current summer school period or current winter school period could undertake, or could have undertaken, the unit during a period other than a summer school period or winter school period as part of a *course of study undertaken by the person with the higher education provider.

    36-10(9)  


    The higher education provider must make the determination:


    (a) before the start of the current summer school period, if the determination relates to a unit undertaken during a summer school period; or


    (b) before the start of the current winter school period, if the determination relates to a unit undertaken during a winter school period.

    36-10(10)  


    In this section:

    summer school period
    means a period that starts on or after 1 November in a year and ends after 1 January, but before 1 March, in the following year.

    winter school period
    means a period that starts on or after 1 June in a year and ends on or before 31 August in that year.

    SECTION 36-15   Persons not to be advised they are Commonwealth supported  

    36-15(1A)  


    A higher education provider must not advise a person that the person is a *Commonwealth supported student in relation to a unit of study if:


    (a) the unit contributes to the requirements of a *course of study; and


    (b) the course of study is, or is to be, undertaken by the person primarily at an overseas campus.

    36-15(1)  
    A higher education provider must not advise a person enrolled in a unit of study with the provider that the person is a *Commonwealth supported student in relation to the unit if:


    (a) the enrolment is in an *employer reserved place; or


    (b) the unit forms part of a *bridging course for overseas-trained professionals; or


    (c) the unit forms part of a course to which a determination under subsection (2) applies.

    36-15(2)  


    The Minister may, by legislative instrument, determine that:


    (a) a specified *course of study is not one in respect of which students, or students of a specified kind, may be enrolled in units of study as *Commonwealth supported students; or


    (b) a *course of study of a specified type is not one in respect of which students, or students of a specified kind, may be enrolled in units of study as *Commonwealth supported students.

    36-15(3)  
    In deciding whether to make a determination under subsection (2), the Minister must have regard to the effect of the determination on students undertaking the course, or a course of that type.

    36-15(4)  
    A determination of the Minister under subsection (2) must not be made later than 6 months before the day that students are able next to commence the specified course, or a course of that type, with the provider.

    SECTION 36-20   Providers to repay amounts - special circumstances  

    36-20(1)  
    A higher education provider must, on the *Secretary's behalf, determine that this section applies to a person if:


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


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


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


    (d) the provider is satisfied that special circumstances apply to the person (see section 36-21); and


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


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

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


    (f) either:


    (i) the application is made before the end of the application period under section 36-22; or

    (ii) the provider waives the requirement that the application be made before the end of that period, on the ground that it would not be, or was not, possible for the application to be made before the end of that period.
    Note 1:

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

    Note 2:

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

    36-20(2)  


    If the provider determines that this section applies to a person, the provider must:


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


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

    36-20(3)  


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


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


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

    36-20(4)  
    The Higher Education Provider Guidelines may, in setting out the *tuition assurance requirements, specify, in relation to circumstances to which paragraph (3)(a) applies:


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


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


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

    36-20(5)  
    If a determination made under subsection (1) is made in writing, the determination is not a legislative instrument.

    SECTION 36-21   Special circumstances  

    36-21(1)  
    For the purposes of paragraph 36-20(1)(d), special circumstances apply to the person if and only if the higher education provider is satisfied that circumstances apply to the person that:


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


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


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

    36-21(2)  
    The Administration Guidelines may specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraph (1)(a), (b) or (c). A decision of a higher education provider under this section must be in accordance with any such guidelines.

    Note 1:

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

    SECTION 36-22   Application period  

    36-22(1)  


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


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


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

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

    36-22(2)  
    If subsection (1) does not apply, the application period for the application is the period of 12 months after the end of the period during which the person undertook, or was to undertake, the unit.

    SECTION 36-22A   36-22A   Providers to repay amounts etc. for units wholly consisting of work experience in industry - provider ceases to provide course  
    (Repealed by No 104 of 2011)

    SECTION 36-23   Dealing with applications  

    36-23(1)  
    If:


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


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

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

    36-23(2)  
    The notice must include a statement of the reasons for the decision.

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

    36-24A(1)  
    A higher education provider must, on the *Secretary's behalf, determine that this section applies to a person if:


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


    (b) the unit would, if completed, form part of a *course of study undertaken with the provider; and


    (c) the person has not completed the requirements for the unit during the period during which the person undertook, or was to undertake, the unit because the provider ceased to provide the unit as a result of ceasing to provide the course of which the unit formed part; and


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


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

    Note:

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

    36-24A(2)  
    The provider must:


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


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

    36-24A(3)  
    If a determination made under subsection (1) is made in writing, the determination is not a legislative instrument.

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

    36-24B(1)  
    This section applies to a person if a higher education provider cancels the person's enrolment in a unit of study under subsection 193-5(1).

    Note:

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

    36-24B(2)  
    The provider must:


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


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

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


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

    Subdivision 36-C - Conditions relating to enrolment  

    SECTION 36-25   Continued support for Commonwealth supported students  

    36-25(1)  
    A higher education provider must advise a person who is enrolled in a unit of study with the provider, as part of a *course of study being undertaken with the provider, that he or she is a *Commonwealth supported student in relation to the unit if:


    (a) the person is or has been a Commonwealth supported student in relation to one or more other units of study, undertaken with the provider, as part of the course; and


    (b) the provider is not prohibited, under section 36-10 or section 36-15, or both, from so advising the person.

    36-25(2)  
    A *Table A provider (the host provider ) must advise a person who is enrolled in a unit of study with the provider, as part of a *course of study being undertaken with another Table A provider (the home provider ), that he or she is a *Commonwealth supported student in relation to the unit if:


    (a) the person is or has been a Commonwealth supported student in relation to one or more other units of study in the course undertaken with the home provider; and


    (b) the person must undertake the unit, because it is required to complete the course; and


    (c) the host provider is not prohibited, under section 36-10 or section 36-15, or both, from so advising the person.

    36-25(3)  


    If a higher education provider has, under subparagraph 36-5(1)(a)(ii), advised a person that he or she is a Commonwealth supported student in relation to a *course of study with the provider, then the higher education provider is taken to have advised the person that he or she is a Commonwealth supported student in relation to each unit of study undertaken with the provider, as part of that course.

    SECTION 36-30   Providers to enrol persons as Commonwealth supported students   Table A providers

    36-30(1)  
    If:


    (a) a person is to be enrolled with a *Table A provider in a unit of study; and


    (aa) the unit to be undertaken with the provider forms part of an *undergraduate course of study; and


    (b) the provider is not prohibited, under section 36-10 or section 36-15, or both, from advising the person that he or she is a *Commonwealth supported student in relation to the unit;

    the provider must enrol the person in the unit as a Commonwealth supported student.

    36-30(2)  


    Subsection (1) does not apply in respect of a person's enrolment with a *Table A provider in a unit of study that forms part of an *undergraduate course of study if:


    (a) the person commences the undergraduate course of study with the provider before 1 January 2009; or


    (b) both:


    (i) the person transfers to the undergraduate course of study with the provider on or after 1 January 2009 from another undergraduate course of study in which the person was enrolled with the provider before 1 January 2009; and

    (ii) the person had not completed that other undergraduate course of study; or


    (c) all of the following apply:


    (i) the person was offered, and accepted, a place (other than a Commonwealth supported place) in the undergraduate course of study with the provider before 1 January 2009;

    (ii) the undergraduate course of study was to commence before 1 January 2009;

    (iii) with the provider's approval, the person commences the course of study after that time; or


    (d) at the time the person commences the undergraduate course of study with the provider, the person is an *overseas student.

    Other higher education providers

    36-30(3)  


    If a person is to be enrolled, with a higher education provider that is not a *Table A provider, in a unit of study, the provider must enrol the person in the unit as a *Commonwealth supported student if:


    (a) completion of the unit is in furtherance of a *national priority; and


    (b) places have been allocated to the provider under section 30-10 in respect of that national priority for the year in which the person is enrolled in the unit.

    36-30(4)  
    Subsection (3) does not apply, and is taken never to have applied, in relation to that enrolment if:


    (a) in respect of the year in which the person is enrolled in the unit, the provider has already filled, or fills, all of the *number of Commonwealth supported places in respect of that *national priority; or


    (b) the person notifies an *appropriate officer of the provider that he or she does not wish to be a *Commonwealth supported student in relation to the unit. Notices under paragraph (4)(b)

    36-30(5)  


    A notice under paragraph (4)(b):


    (a) must be in writing; and


    (b) must be given on or before the *census date for the unit.

    SECTION 36-32   36-32   Commonwealth supported study at a particular campus  


    Nothing in sections 36-25 or 36-30 requires a higher education provider to advise a person that he or she is a Commonwealth supported student in relation to a unit of study undertaken at a particular campus of the provider.

    SECTION 36-35   36-35   Percentage of Commonwealth supported places to be provided by Table A providers  
    (Repealed by No 119 of 2007)

    SECTION 36-40   Providers to cancel enrolments in certain circumstances  

    36-40(1)  
    A higher education provider must cancel a person's enrolment in a unit of study with the provider if the person:


    (a) is enrolled as a *Commonwealth supported student in relation to the unit; and


    (b) has not, on or before the *census date for the unit:


    (i) completed, and signed, a *request for Commonwealth assistance in relation to the unit or, where the unit forms part of a *course of study undertaken with the provider, in relation to the course of study; and

    (ii) given it to an *appropriate officer of the provider.

    36-40(2)  
    A higher education provider must cancel a person's enrolment in a unit of study with the provider if the person:


    (a) is enrolled as a *Commonwealth supported student in relation to the unit; and


    (b) is not entitled to *HECS-HELP assistance for the unit; and


    (c) has not, on or before the *census date for the unit, paid to the provider the whole of the person's *student contribution amount for the unit.

    However, this subsection does not apply if the person's student contribution amount for the unit is a nil amount.

    36-40(3)