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This is a Bill, not an Act. For current law, see the Acts databases.
2013-2014-2015
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Higher Education Support Amendment
(VET FEE-HELP Reform) Bill 2015
No. , 2015
(Education and Training)
A Bill for an Act to amend the law relating to
higher education, and for related purposes
No. , 2015
Higher Education Support Amendment (VET FEE-HELP Reform) Bill
2015
i
Contents
1
Short title ............................................................................................ 1
2
Commencement .................................................................................. 1
3
Schedules ............................................................................................ 2
Schedule 1--VET FEE-HELP Reform amendments
3
Part 1--Main amendments
3
Higher Education Support Act 2003
3
Part 2--Civil penalties and enforcement
13
Higher Education Support Act 2003
13
Schedule 2--Other ame ndments
29
Higher Education Support Act 2003
29
No. , 2015
Higher Education Support Amendment (VET FEE-HELP Reform) Bill
2015
1
A Bill for an Act to amend the law relating to
1
higher education, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act may be cited as the Higher Education Support
5
Amendment (VET FEE-HELP Reform) Act 2015.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Higher Education Support Amendment (VET FEE-HELP Reform) Bill
2015
No. , 2015
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1
Immediately before 1 January 2016.
31 December
2015
3. Schedule 2
Immediately after the start of a single day to
be fixed by Proclamation.
However, if the commencement of the
provisions is not fixed by a Proclamation
registered on the Federal Register of
Legislative Instruments established under
the Legislative Instruments Act 2003, within
the period of 12 months beginning on the
day this Act receives the Royal Assent, the
provisions are repealed on the day after the
end of that period.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
VET FEE-HELP Reform amendments Schedule 1
Main amendments Part 1
No. , 2015
Higher Education Support Amendment (VET FEE-HELP Reform) Bill
2015
3
Schedule 1--VET FEE-HELP Reform
1
amendments
2
Part 1--Main amendments
3
Higher Education Support Act 2003
4
1 Subsection 137-18(4)
5
Omit "clause 46, 47 or 51", substitute "clause 46, 46A, 47 or 51".
6
2 Paragraph 6(1)(aa) of Schedule 1A
7
After "body corporate", insert "that is not the trustee of a trust".
8
3 Paragraph 6(1)(c) of Schedule 1A
9
Repeal the paragraph, substitute:
10
(c) the body is a
*
registered training organisation, as listed on the
11
*
National Register, that:
12
(i) has been a registered training organisation for at least
13
the length of time specified in the
*
VET Guidelines for
14
the purposes of this subparagraph; and
15
(ii) has been providing courses leading to awards of
16
qualifications in the
*
Australian Qualifications
17
Framework for at least the length of time specified in
18
the VET Guidelines for the purposes of this
19
subparagraph; and
20
4 Paragraph 6(1)(g) of Schedule 1A
21
Omit "
*
VET Guidelines", substitute "VET Guidelines".
22
5 At the end of clause 9 of Schedule 1A
23
Add:
24
(3) If:
25
(a) a body applies to the Minister for approval as a
*
VET
26
provider; and
27
(b) the Minister decides, under clause 6, not to approve the body
28
as a VET provider;
29
Schedule 1 VET FEE-HELP Reform amendments
Part 1 Main amendments
4
Higher Education Support Amendment (VET FEE-HELP Reform) Bill
2015
No. , 2015
the body cannot make a subsequent application for approval as a
1
VET provider during the 6-month period starting on the date of the
2
notice given to the applicant under paragraph 11(1)(b) about the
3
decision.
4
6 Paragraph 15(2)(b) of Schedule 1A
5
Repeal the paragraph, substitute:
6
(b) must be provided with a report, on the statement, by:
7
(i) the Auditor-General of a State, of the Australian Capital
8
Territory or of the Northern Territory; or
9
(ii) a registered company auditor (within the meaning of
10
section 9 of the Corporations Act 2001), who is
11
independent of the
*
VET provider; or
12
(iii) a person approved by the Minister under paragraph (d)
13
of the definition of qualified auditor in subclause 1(1)
14
of Schedule 1, who is independent of the VET provider;
15
and
16
7 After clause 23A of Schedule 1A
17
Insert:
18
23B Entry procedure for students
19
(1) A
*
VET provider must make and publish a
*
student entry
20
procedure in accordance with the
*
VET Guidelines.
21
(2) A
*
VET provider must comply with its
*
student entry procedure.
22
(3) A student entry procedure is a written procedure that specifies, in
23
accordance with the
*
VET Guidelines:
24
(a) when a student is academically suited to undertake a
*
VET
25
course of study; and
26
(b) how to assess whether a student is so suited; and
27
(c) how to report to the
*
Secretary about the results of such
28
assessments; and
29
(d) how long the
*
VET provider must retain those results.
30
Note:
The VET Guidelines could, for example, require a student entry
31
procedure to:
32
(a) set out the literacy, numeracy and general academic skills needed
33
by a student to undertake a VET course of study ; and
34
VET FEE-HELP Reform amendments Schedule 1
Main amendments Part 1
No. , 2015
Higher Education Support Amendment (VET FEE-HELP Reform) Bill
2015
5
(b) provide for assessments of those skills to be conducted online.
1
(4) For the purposes of subclause (3), the
*
VET Guidelines may
2
empower a person or body to approve a particular test for when a
3
student is academically suited to undertake a
*
VET course of study.
4
23C Receiving requests for Commonwealth assistance
5
(1) A
*
VET provider must not treat a student as being entitled to
*
VET
6
FEE-HELP assistance for a
*
VET unit of study if:
7
(a) the student gives an
*
appropriate officer of the VET provider:
8
(i) a
*
request for Commonwealth assistance relating to the
9
unit or a
*
VET course of study of which the unit forms a
10
part; or
11
(ii) a form that would be such a request if it were signed by
12
a
*
responsible parent of the student; and
13
(b) the student is not entitled to that assistance for that unit or
14
course.
15
Note:
To be a request for Commonwealth assistance, a responsible parent
16
must sign the form if the student is under 18 years old and
17
subclause 88(3A) applies (see paragraph 88(3)(aa)).
18
(2) Before a
*
VET provider enrols a student in a
*
VET unit of study
19
less than 2 business days before the
*
census date for the unit, the
20
VET provider must advise the student that the student will not be
21
able to receive
*
VET FEE-HELP assistance for the unit.
22
(3) Before a
*
VET provider enrols a student in a
*
VET unit of study,
23
the VET provider must advise the student that any
*
request for
24
Commonwealth assistance by the student in relation to the unit
25
must be given:
26
(a) at least 2 business days after the student enrols in:
27
(i) if the
*
VET course of study of which the unit forms a
28
part is undertaken with the provider--the course; or
29
(ii) otherwise--the unit; and
30
(b) on or before the
*
census date for the unit;
31
if the student has not already given an
*
appropriate officer of the
32
VET provider such a request relating to the course.
33
(4) A
*
VET provider must not encourage a student to give a
*
request
34
for Commonwealth assistance relating to a
*
VET unit of study so
35
Schedule 1 VET FEE-HELP Reform amendments
Part 1 Main amendments
6
Higher Education Support Amendment (VET FEE-HELP Reform) Bill
2015
No. , 2015
that the request is given less than 2 business days after the student
1
enrols in the unit.
2
8 Subclause 27(2) of Schedule 1A
3
Omit "
*
VET tuition fees", substitute "VET tuition fees".
4
9 After paragraph 43(1)(e) of Schedule 1A
5
Insert:
6
(ea) the student meets the entry procedure requirements under
7
clause 45B; and
8
10 Subparagraph 43(1)(f)(i) of Schedule 1A
9
Repeal the subparagraph, substitute:
10
(i) enrols in the unit at least 2 business days before the
11
census date for the unit; and
12
11 Paragraph 43(1)(h) of Schedule 1A
13
Repeal the paragraph, substitute:
14
(h) the student meets the request for Commonwealth assistance
15
requirements under clause 45C; and
16
12 At the end of Subdivision 7-A of Schedule 1A
17
Add:
18
45B Entry procedure requirements
19
The entry procedure requirements for
*
VET FEE-HELP assistance
20
for a
*
VET unit of study are that the student, in accordance with
21
the
*
VET provider's
*
student entry procedure, has been assessed as
22
academically suited to undertake the
*
VET course of study of
23
which the unit forms a part.
24
45C Request for Commonwealth assistance requirements
25
(1) The request for Commonwealth assistance requirements for
*
VET
26
FEE-HELP assistance for a
*
VET unit of study are that:
27
(a) the student completes, signs and gives an
*
appropriate officer
28
of the
*
VET provider a
*
request for Commonwealth
29
assistance that:
30
VET FEE-HELP Reform amendments Schedule 1
Main amendments Part 1
No. , 2015
Higher Education Support Amendment (VET FEE-HELP Reform) Bill
2015
7
(i) if the
*
VET course of study of which the unit forms a
1
part is undertaken with the provider--relates to the
2
course, and is so given at least 2 business days after the
3
student enrols in the course; or
4
(ii) otherwise--relates to the unit, and is so given at least 2
5
business days after the student enrols in the unit; and
6
(b) the request is so given on or before the
*
census date for the
7
unit; and
8
(c) the request is not withdrawn before the end of that census
9
date.
10
If request is given during the 2 business day cooling-off period
11
(2) However, for the purposes of this Act (other than clause 39DH), if:
12
(a) the student fails to comply with paragraph (1)(a) of this
13
clause by not giving the request at least 2 business days after
14
the enrolment referred to in that paragraph; and
15
(b) the
*
VET provider treats the student as being entitled to
16
*
VET FEE-HELP assistance for the unit;
17
the student is taken to have complied with that paragraph.
18
Note 1:
The VET provider should not treat the student as being entitled to
19
VET FEE-HELP assistance if the student requests the assistance
20
during the 2 business day cooling-off period after the enrolment.
21
Note 2:
However, if the provider does treat the student as being entitled, the
22
provider will contravene subclause 39DH(1) (a civil penalty
23
provision), and the student may still be able to receive t he assistance.
24
13 Subclause 46(1) of Schedule 1A
25
Omit "clause 51", substitute "clause 46A or 51".
26
14 After clause 46 of Schedule 1A
27
Insert:
28
46A Re-crediting a person's FEE-HELP balance--unacceptable
29
conduct by provider or provider's agent
30
Decision to re-credit due to unacceptable conduct
31
(1) The
*
Secretary must re-credit a person's
*
FEE-HELP balance with
32
an amount equal to the amounts of
*
VET FEE-HELP assistance
33
Schedule 1 VET FEE-HELP Reform amendments
Part 1 Main amendments
8
Higher Education Support Amendment (VET FEE-HELP Reform) Bill
2015
No. , 2015
that the person received for a
*
VET unit of study if the Secretary is
1
satisfied that:
2
(a) the person has been enrolled in the unit with a
*
VET
3
provider; and
4
(b) the person has not completed the requirements for the unit
5
during the period the person undertook, or was to undertake,
6
the unit; and
7
(c) circumstances exist, of a kind specified in the
*
VET
8
Guidelines for the purposes of this paragraph, involving
9
unacceptable conduct by the VET provider (or an agent of
10
the VET provider) relating to the person's
*
request for
11
Commonwealth assistance relating to:
12
(i) the unit; or
13
(ii) the
*
VET course of study of which the unit forms a part;
14
and
15
(d) the person has applied in writing to the Secretary for
16
re-crediting of the FEE-HELP balance under this subclause;
17
and
18
(e) the application is in the form approved by the Secretary, and
19
is accompanied by such information as the Secretary
20
requests; and
21
(f) either:
22
(i) the application was made during the first 3 years after
23
the period during which the person undertook, or was to
24
undertake, the unit; or
25
(ii) it would not be, or was not, possible for the application
26
to be made during those 3 years.
27
Note:
A VET FEE-HELP debt relating to a VET unit of study will be
28
remitted if the FEE-HELP balance in relation to the unit is re-credited:
29
see section 137-18.
30
(2) If:
31
(a) the person received the
*
VET FEE-HELP assistance as a
32
result of giving an
*
appropriate officer of the
*
VET provider
33
a form; and
34
(b) the form would have been a
*
request for Commonwealth
35
assistance relating to the unit if it had been signed by a
36
*
responsible parent of the person;
37
paragraph (1)(c) applies as if the form were the person's request
38
for Commonwealth assistance relating to the unit.
39
VET FEE-HELP Reform amendments Schedule 1
Main amendments Part 1
No. , 2015
Higher Education Support Amendment (VET FEE-HELP Reform) Bill
2015
9
Note:
To be a request for Commonwealth assistance, a responsible parent
1
must sign the form if the student is under 18 years old and
2
subclause 88(3A) applies (see paragraph 88(3)(aa)).
3
Inviting submissions before making a decision
4
(3) Before making a decision under subclause (1), the
*
Secretary must
5
give the applicant and the
*
VET provider a notice in writing:
6
(a) stating that the Secretary is considering making the decision;
7
and
8
(b) describing the decision and stating the reasons why the
9
Secretary is considering making it; and
10
(c) inviting the applicant and the VET provider to each make
11
written submissions to the Secretary within 28 days on either
12
or both of the following matters:
13
(i) why that decision should not be made;
14
(ii) if that decision would re-credit the applicant's
15
*
FEE-HELP balance with a particular amount--why
16
that amount should be changed; and
17
(d) informing the applicant and the VET provider that, if no
18
submissions are received within the 28 day period, the
19
Secretary may proceed to make the decision.
20
(4) In deciding whether to make the decision under subclause (1), the
21
*
Secretary must consider any submissions received from the
22
applicant, and from the
*
VET provider, within the 28 day period.
23
Notice of a decision
24
(5) The
*
Secretary must give written notice of a decision under
25
subclause (1) to the applicant and the
*
VET provider. The notice
26
must be given within 28 days after the day the decision was made.
27
15 Subclause 56(1) of Schedule 1A
28
Omit "subclause 46(2) or 47(1)", substitute "subclause 46(2), 46A(1) or
29
47(1)".
30
16 After subclause 64(2) of Schedule 1A
31
Insert:
32
Schedule 1 VET FEE-HELP Reform amendments
Part 1 Main amendments
10
Higher Education Support Amendment (VET FEE-HELP Reform) Bill
2015
No. , 2015
Manner in which notice to be given
1
(2A) A notice must be given in the manner (if any) set out in the
*
VET
2
Guidelines.
3
17 After paragraph 75(ca) of Schedule 1A
4
Insert:
5
(cb) disclosure by a Commonwealth officer of VET personal
6
information to a person appointed to, or employed or
7
engaged by, a
*
State or Territory VET regulator to assist the
8
person in their service with that regulator;
9
18 After paragraph 88(3)(a) of Schedule 1A
10
Insert:
11
(aa) if subclause (3A) applies to the person--that is signed by a
12
*
responsible parent of the person (in addition to being signed
13
by the person); and
14
19 After subclause 88(3) of Schedule 1A
15
Insert:
16
(3A) This subclause applies to the person if the person:
17
(a) is under 18 years old; and
18
(b) has at least one
*
responsible parent;
19
unless the person is receiving, or has received, youth allowance
20
(within the meaning of the Social Security Act 1991) on the basis
21
that the person is independent (within the meaning of Part 2.11 of
22
that Act).
23
20 Subclause 88(4) of Schedule 1A
24
Omit "This clause does", substitute "Subclauses (1) and (2) do".
25
21 Clause 91 of Schedule 1A (at the end of the table)
26
Add:
27
2
Refusal to re-credit a
person's
*
FEE-HELP
balance
subclause 46A(1)
the
*
Secretary
3
Re-crediting a person's
*
FEE-HELP balance
subclause 46A(1)
the
*
Secretary
VET FEE-HELP Reform amendments Schedule 1
Main amendments Part 1
No. , 2015
Higher Education Support Amendment (VET FEE-HELP Reform) Bill
2015
11
22 Subclause 1(1) of Schedule 1
1
Insert:
2
responsible parent has the same meaning as in the Australian
3
Citizenship Act 2007.
4
State or Territory VET regulator means an agency or authority of
5
a State or Territory responsible for regulating vocational education
6
or vocational training in the State or Territory.
7
student entry procedure has the meaning given by
8
subclause 23B(3) of Schedule 1A.
9
23 Subclause 1(1) of Schedule 1 (definition of VET tuition fee)
10
After "subclause 27(2)", insert "of Schedule 1A".
11
24 Application of amendments
12
(1)
The amendments of clause 6 of Schedule 1A to the Higher Education
13
Support Act 2003 made by this Schedule apply in relation to
14
applications for approval as a VET provider made on or after 1 January
15
2016.
16
(2)
The amendment of clause 9 of Schedule 1A to the Higher Education
17
Support Act 2003 made by this Schedule applies in relation to decisions
18
not to approve bodies as VET providers made on or after 1 January
19
2016.
20
(3)
The amendment of clause 15 of Schedule 1A to the Higher Education
21
Support Act 2003 made by this Schedule applies in relation to annual
22
financial reporting periods ending on or after 1 January 2016.
23
(4)
Paragraph 43(1)(ea) and clause 45B of Schedule 1A to the Higher
24
Education Support Act 2003 (as inserted by this Schedule) apply in
25
relation to VET courses of study enrolled in on or after 1 January 2016.
26
(5)
Subparagraph 43(1)(f)(i) of Schedule 1A to the Higher Education
27
Support Act 2003 (as inserted by this Schedule) applies in relation to
28
VET units of study enrolled in on or after 1 January 2016.
29
(6)
Paragraph 43(1)(h) and clause 45C of Schedule 1A to the Higher
30
Education Support Act 2003 (as inserted by this Schedule) apply in
31
Schedule 1 VET FEE-HELP Reform amendments
Part 1 Main amendments
12
Higher Education Support Amendment (VET FEE-HELP Reform) Bill
2015
No. , 2015
relation to requests for Commonwealth assistance given on or after
1
1 January 2016.
2
(7)
Clause 46A of Schedule 1A to the Higher Education Support Act 2003
3
(as inserted by this Schedule) applies in relation to unacceptable
4
conduct engaged in on or after 1 January 2016.
5
VET FEE-HELP Reform amendments Schedule 1
Civil penalties and enforcement Part 2
No. , 2015
Higher Education Support Amendment (VET FEE-HELP Reform) Bill
2015
13
Part 2--Civil penalties and enforcement
1
Higher Education Support Act 2003
2
25 Paragraph 180-20(b)
3
Repeal the paragraph, substitute:
4
(b) a
*
NVETR staff member;
5
26 At the end of Part 1 of Schedule 1A
6
Add:
7
Division 5A--Civil penalty provisions and enforcement
8
Subdivision 5A-A--Civil penalty provisions
9
39DA Civil penalty provisions
10
Enforceable civil penalty provisions
11
(1) Each
*
civil penalty provision of this Division is enforceable under
12
Part 4 of the
*
Regulatory Powers Act.
13
Note:
Part 4 of the Regulatory Powers Act allows a civil penalty provision to
14
be enforced by obtaining an order for a person to pay a pecuniary
15
penalty for the contravention of the provision.
16
Authorised applicant
17
(2) For the purposes of Part 4 of the
*
Regulatory Powers Act, each of
18
the following persons is an authorised applicant in relation to the
19
*
civil penalty provisions:
20
(a) the
*
Secretary;
21
(b) an SES employee, or an acting SES employee, in the
22
Department.
23
Relevant court
24
(3) For the purposes of Part 4 of the
*
Regulatory Powers Act, each
25
*
applicable court is a relevant court in relation to the
*
civil penalty
26
provisions.
27
Schedule 1 VET FEE-HELP Reform amendments
Part 2 Civil penalties and enforcement
14
Higher Education Support Amendment (VET FEE-HELP Reform) Bill
2015
No. , 2015
39DB Civil penalty--publis hing information that suggests VET
1
FEE-HELP assistance is not a loan etc.
2
(1) A person contravenes this subclause if:
3
(a) the person is a
*
VET provider; and
4
(b) the VET provider publishes information, or causes
5
information to be published; and
6
(c) the information suggests that:
7
(i)
*
VET FEE-HELP assistance for a
*
VET unit of study or
8
*
VET course of study is not in the nature of a loan, or
9
does not need to be repaid; or
10
(ii) if a student receives VET FEE-HELP assistance for
11
such a unit or course, that the unit or course is free from
12
any fees or charges.
13
Civil penalty:
60 penalty units.
14
(2) A person contravenes this subclause if:
15
(a) the person publishes information; and
16
(b) the person does so as agent for a
*
VET provider; and
17
(c) the information suggests that:
18
(i)
*
VET FEE-HELP assistance for a
*
VET unit of study or
19
*
VET course of study is not in the nature of a loan, or
20
does not need to be repaid; or
21
(ii) if a student receives VET FEE-HELP assistance for
22
such a unit or course, that the unit or course is free from
23
any fees or charges.
24
Civil penalty:
60 penalty units.
25
39DC Civil penalty--inappropriate inducements
26
(1) A person contravenes this subclause if:
27
(a) the person is a
*
VET provider; and
28
(b) the VET provider:
29
(i) offers a person a benefit; or
30
(ii) provides a person with a benefit; or
31
(iii) causes a person to be offered or provided with a benefit;
32
and
33
VET FEE-HELP Reform amendments Schedule 1
Civil penalties and enforcement Part 2
No. , 2015
Higher Education Support Amendment (VET FEE-HELP Reform) Bill
2015
15
(c) the benefit would be reasonably likely to induce a person (the
1
student) to:
2
(i) enrol in a
*
VET unit of study or
*
VET course of study;
3
and
4
(ii) complete, sign and give an
*
appropriate officer of the
5
VET provider a
*
request for Commonwealth assistance
6
relating to the unit or course; and
7
(d) the student receives
*
VET FEE-HELP assistance for that unit
8
or course.
9
Civil penalty:
60 penalty units.
10
(2) A person contravenes this subclause if:
11
(a) the person offers a person a benefit, or provides a person with
12
a benefit; and
13
(b) the person does so as agent for a
*
VET provider; and
14
(c) the benefit would be reasonably likely to induce a person (the
15
student) to:
16
(i) enrol in a
*
VET unit of study or
*
VET course of study;
17
and
18
(ii) complete, sign and give an
*
appropriate officer of the
19
VET provider a
*
request for Commonwealth assistance
20
relating to the unit or course; and
21
(d) the student receives
*
VET FEE-HELP assistance for that unit
22
or course.
23
Civil penalty:
60 penalty units.
24
(3) To avoid doubt, the person in paragraph (1)(b) or (2)(a) who is
25
offered, or provided with, the benefit need not be the student.
26
39DD Appropriate and inappropriate inducements
27
(1) Subclauses 39DC(1) and (2), and subclause (2) of this clause, do
28
not apply in relation to any of the following benefits:
29
(a) the content and quality of the
*
VET unit of study or
*
VET
30
course of study;
31
(b) the amount of
*
tuition fees of the unit or course (other than so
32
much of the fees as is conditional on a person identifying
33
other persons as prospective students for a unit or course);
34
(c)
*
VET FEE-HELP assistance for the unit or course;
35
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(d) the use of a thing if:
1
(i) the use is limited to the period the student is
2
participating in the unit or course; and
3
(ii) the use is required or necessary for the completion of
4
the unit or course (having regard to the learning
5
objectives and outcomes of the unit or course); and
6
(iii) the use of such a thing is available on the same terms to
7
all students, of a kind specified in the
*
VET Guidelines
8
for the purposes of this subparagraph, who are
9
participating in the unit or course.
10
(2) Without limiting subclauses 39DC(1) and (2), those subclauses
11
apply in relation to the following benefits:
12
(a) the use of an electronic device outside the period the student
13
is participating in the
*
VET unit of study or
*
VET course of
14
study;
15
(b) internet use, or the use of software, outside that period;
16
(c) travel, entertainment, hospitality or accommodation services;
17
(d) vouchers redeemable for goods or services;
18
(e) money (other than amounts covered by paragraph (1)(b) or
19
(c)).
20
39DE Civil penalty--failure to provide VET FEE-HELP notices
21
A person contravenes this clause if:
22
(a) the person is a
*
VET provider; and
23
(b) the VET provider fails to comply with subclause 64(1), (2),
24
(2A) or (3).
25
Civil penalty:
60 penalty units.
26
39DF Civil penalty--failure to comply with student requests
27
(1) A person contravenes this subclause if:
28
(a) the person is a
*
VET provider; and
29
(b) the VET provider enrols another person (the student) in a
30
*
VET unit of study; and
31
(c) the student is entitled to
*
VET FEE-HELP assistance for the
32
unit; and
33
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(d) before the end of the
*
census date for the unit, the student
1
requests, in writing, the VET provider to:
2
(i) cancel the enrolment; or
3
(ii) withdraw the student's
*
request for Commonwealth
4
assistance relating to the unit or the
*
VET course of
5
study of which the unit forms a part; and
6
(e) the VET provider fails to comply with the request before the
7
end of that census date.
8
Civil penalty:
60 penalty units.
9
(2) For the purposes of paragraph (1)(c), disregard
10
subparagraph 43(1)(f)(ii) and paragraph 45C(1)(c).
11
39DG Civil penalty--charging a fee etc. for a student to cancel an
12
enrolment or request for assistance
13
(1) A person contravenes this subclause if:
14
(a) the person is a
*
VET provider; and
15
(b) the VET provider enrols another person (the student) in a
16
*
VET unit of study; and
17
(c) the student is entitled to
*
VET FEE-HELP assistance for the
18
unit; and
19
(d) before the end of the
*
census date for the unit, the student
20
requests, in writing, the VET provider to:
21
(i) cancel that enrolment; or
22
(ii) withdraw the student's
*
request for Commonwealth
23
assistance relating to the unit or the
*
VET course of
24
study of which the unit forms a part; and
25
(e) the VET provider charges the student a fee, or imposes a
26
penalty, (however described) in order to do so.
27
Civil penalty:
60 penalty units.
28
(2) For the purposes of paragraph (1)(c), disregard
29
subparagraph 43(1)(f)(ii) and paragraph 45C(1)(c).
30
39DH Civil penalty--accepting requests for Commonwealth
31
assistance etc. when student not entitled
32
(1) A person contravenes this subclause if:
33
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(a) the person is a
*
VET provider; and
1
(b) an
*
appropriate officer of the VET provider is given a
2
*
request for Commonwealth assistance by another person
3
(the student) relating to a
*
VET unit of study or the
*
VET
4
course of study of which the unit forms a part; and
5
(c) the VET provider treats the student as being entitled to
*
VET
6
FEE-HELP assistance for the unit; and
7
(d) the student is not so entitled.
8
Civil penalty:
60 penalty units.
9
(2) A person contravenes this subclause if:
10
(a) the person is a
*
VET provider; and
11
(b) an
*
appropriate officer of the VET provider is given a form
12
by another person (the student); and
13
(c) subclause 88(3A) (about certain students under 18 years old)
14
applies to the student; and
15
(d) that form is not signed by a
*
responsible parent of the
16
student; and
17
(e) that form would have been a
*
request for Commonwealth
18
assistance relating to:
19
(i) a
*
VET unit of study; or
20
(ii) the
*
VET course of study of which the unit forms a part;
21
if it had been signed by a responsible parent of the student;
22
and
23
(f) the VET provider treats the student as being entitled to
*
VET
24
FEE-HELP assistance for the unit.
25
Civil penalty:
60 penalty units.
26
39DI Civil penalty--failure to advise about requests etc.
27
(1) A person contravenes this subclause if:
28
(a) the person is a
*
VET provider; and
29
(b) the VET provider enrols another person (the student) in a
30
*
VET unit of study; and
31
(c) the student has not already given an
*
appropriate officer of
32
the VET provider a
*
request for Commonwealth assistance
33
relating to the
*
VET course of study of which the unit forms
34
a part; and
35
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19
(d) the student enrols in the unit less than 2 business days before
1
the
*
census date for the unit; and
2
(e) before enrolling the student, the VET provider failed to
3
advise the student that the student would not be able to
4
receive
*
VET FEE-HELP assistance for the unit; and
5
(f) the student completes, signs and gives an appropriate officer
6
of the VET provider a request for Commonwealth assistance
7
relating to the unit or the VET course of study of which the
8
unit forms a part.
9
Civil penalty:
60 penalty units.
10
(2) A person contravenes this subclause if:
11
(a) the person is a
*
VET provider; and
12
(b) the VET provider enrols another person (the student) in a
13
*
VET unit of study; and
14
(c) the student completes, signs and gives an
*
appropriate officer
15
of the VET provider a
*
request for Commonwealth assistance
16
relating to the unit or a
*
VET course of study of which the
17
unit forms a part; and
18
(d) the request is so given less than 2 business days after the
19
student enrols in the unit; and
20
(e) either or both of the following subparagraphs applies:
21
(i) before enrolling the student, the VET provider failed to
22
advise the student that
*
VET FEE-HELP assistance for
23
the unit can only be received if the request is given at
24
least 2 business days after enrolling;
25
(ii) the VET provider encouraged the student to give the
26
request so that it would be given less than 2 business
27
days after enrolling.
28
Civil penalty:
60 penalty units.
29
39DJ Civil penalty--failure to apportion fees appropriately
30
A person contravenes this clause if:
31
(a) the person is a
*
VET provider; and
32
(b) the VET provider enrols another person (the student) in a
33
*
VET unit of study; and
34
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(c) the student receives
*
VET FEE-HELP assistance for the unit;
1
and
2
(d) the VET provider charges the student
*
tuition fees for the
3
unit; and
4
(e) for the purposes of clause 27A, the
*
VET Guidelines specify
5
when the tuition fees may be charged; and
6
(f) the tuition fees are not charged in accordance with those VET
7
Guidelines.
8
Civil penalty:
60 penalty units.
9
39DK Civil penalty--failure to publish fees
10
A person contravenes this clause if:
11
(a) the person is a
*
VET provider; and
12
(b) the VET provider enrols another person (the student) in a
13
*
VET unit of study; and
14
(c) the student receives
*
VET FEE-HELP assistance for the unit;
15
and
16
(d) the VET provider charges the student
*
tuition fees for the
17
unit; and
18
(e) on the day before the student enrols in the unit, the tuition
19
fees were not available on the VET provider's website in a
20
way that was readily accessible by the public.
21
Civil penalty:
60 penalty units.
22
39DL Civil penalty--failure to report data
23
A person contravenes this clause if:
24
(a) the person is a
*
VET provider; and
25
(b) the VET provider enrols another person (the student) in a
26
*
VET unit of study; and
27
(c) the student receives
*
VET FEE-HELP assistance for the unit;
28
and
29
(d) the VET provider is subject to a requirement under
30
subclause 24(1) or (2) to provide information relating to the
31
VET FEE-HELP assistance; and
32
(e) the VET provider fails to comply with the requirement.
33
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Civil penalty:
60 penalty units.
1
Subdivision 5A-B--Infringement notices
2
39EA Infringement notices
3
A
*
civil penalty provision of this Division is subject to an
4
infringement notice under Part 5 of the
*
Regulatory Powers Act.
5
Note:
Part 5 of the Regulatory Powers Act creates a framework for using
6
infringement notices in relation to provisions.
7
39EB Infringement officers
8
For the purposes of Part 5 of the
*
Regulatory Powers Act, an
9
infringement officer in relation to the
*
civil penalty provisions is:
10
(a) each
*
NVETR staff member who is:
11
(i) an SES employee or an acting SES employee; or
12
(ii) an APS employee who holds or performs the duties of
13
an Executive Level 2 position or an equivalent position;
14
or
15
(b) each SES employee, or an acting SES employee, in the
16
Department.
17
39EC Relevant chief executive
18
For the purposes of Part 5 of the
*
Regulatory Powers Act, the
19
relevant chief executive in relation to the
*
civil penalty provisions
20
is:
21
(a) for an infringement notice given by an infringement officer
22
covered by paragraph 39EB(a)--each
*
NVETR
23
Commissioner; and
24
(b) for an infringement notice given by an infringement officer
25
covered by paragraph 39EB(b)--the
*
Secretary.
26
Subdivision 5A-C--Monitoring and investigation powers
27
39FA Monitoring powers
28
(1) Subdivision 5A-A is subject to monitoring under Part 2 of the
29
*
Regulatory Powers Act.
30
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Note:
Part 2 of the Regulatory Powers Act creates a framework for
1
monitoring whether Subdivision 5A-A has been complied with. It
2
includes powers of entry and inspection.
3
(2) Information given in compliance or purported compliance with a
4
provision of Subdivision 5A-A is subject to monitoring under
5
Part 2 of the
*
Regulatory Powers Act.
6
Note:
Part 2 of the Regulatory Powers Act creates a framework for
7
monitoring whether the information is correct. It includes powers of
8
entry and inspection.
9
39FB Monitoring powers--persons exercising relevant roles etc.
10
(1) For the purposes of Part 2 of the
*
Regulatory Powers Act, as it
11
applies in relation to Subdivision 5A-A of this Schedule:
12
(a) each
*
civil penalty provision of this Division is related to
13
Subdivision 5A-A of this Schedule; and
14
(b) each
*
Departmental investigator and
*
NVETR investigator is
15
an authorised applicant; and
16
(c) each Departmental investigator and NVETR investigator is
17
an authorised person; and
18
(d) a
*
judicial officer is an issuing officer; and
19
(e) for an authorised person who is a Departmental investigator,
20
the
*
Secretary is the relevant chief executive; and
21
(f) for an authorised person who is a NVETR investigator, each
22
*
NVETR Commissioner is the relevant chief executive; and
23
(g) each
*
applicable court is the relevant court.
24
Person assisting
25
(2) An authorised person may be assisted by other persons in
26
exercising powers or performing functions or duties under Part 2 of
27
the
*
Regulatory Powers Act in relation to a provision of
28
Subdivision 5A-A of this Schedule.
29
39FC Investigation powers
30
Each
*
civil penalty provision of this Division is subject to
31
investigation under Part 3 of the
*
Regulatory Powers Act.
32
Note:
Part 3 of the Regulatory Powers Act creates a framework for
33
investigating whether a provision has been contravened. It includes
34
powers of entry, search and seizure.
35
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23
39FD Investigation powers--persons exercising relevant roles etc.
1
(1) For the purposes of Part 3 of the
*
Regulatory Powers Act, as it
2
applies in relation to evidential material that relates to a
*
civil
3
penalty provision of this Division:
4
(a) each
*
Departmental investigator and
*
NVETR investigator is
5
an authorised applicant; and
6
(b) each Departmental investigator and NVETR investigator is
7
an authorised person; and
8
(c) a
*
judicial officer is an issuing officer; and
9
(d) for an authorised person who is a Departmental investigator,
10
the
*
Secretary is the relevant chief executive; and
11
(e) for an authorised person who is a NVETR investigator, each
12
*
NVETR Commissioner is the relevant chief executive; and
13
(f) each
*
applicable court is the relevant court.
14
Person assisting
15
(2) An authorised person may be assisted by other persons in
16
exercising powers or performing functions or duties under Part 3 of
17
the
*
Regulatory Powers Act in relation to evidential material that
18
relates to a provision of Subdivision 5A-A of this Schedule.
19
Subdivision 5A-D--Other matters
20
39GA Appointment of investigators
21
(1) The
*
Secretary may, in writing, appoint an APS employee in the
22
Department as a Departmental investigator for the purposes of this
23
Division.
24
(2) A
*
NVETR Commissioner may, in writing, appoint a
*
NVETR
25
staff member as a NVETR investigator for the purposes of this
26
Division.
27
(3) A person must not be appointed as a
*
Departmental investigator, or
28
a
*
NVETR investigator, unless the appointer is satisfied that the
29
person has the knowledge or experience necessary to properly
30
exercise the powers of such an investigator.
31
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(4) A
*
Departmental investigator, and a
*
NVETR investigator, must, in
1
exercising powers as such, comply with any directions of the
2
appointer.
3
(5) If a direction is given under subclause (4) in writing, the direction
4
is not a legislative instrument.
5
39GB Functions and powers
6
The functions and powers of a person referred to in:
7
(a) subclause 39DA(2) (about authorised applicants); or
8
(b) clause 39EB or 39EC (about infringement notices); or
9
(c) paragraph 39FB(1)(b), (c), (d), (e) or (f) (about monitoring
10
powers); or
11
(d) paragraph 39FD(1)(a), (b), (c), (d) or (e) (about investigation
12
powers);
13
include those conferred by Part 2, 3, 4 or 5 (as applicable) of the
14
*
Regulatory Powers Act in relation to this Division.
15
39GC Delegation by relevant chief executive etc.
16
(1) The
*
Secretary may, in writing, delegate his or her powers and
17
functions that:
18
(a) arise under the
*
Regulatory Powers Act as the relevant chief
19
executive; and
20
(b) relate to this Division;
21
to an SES employee, or an acting SES employee, in the
22
Department.
23
(2) A
*
NVETR Commissioner may, in writing, delegate his or her
24
powers and functions that:
25
(a) arise under the
*
Regulatory Powers Act as the relevant chief
26
executive and relate to this Division; or
27
(b) arise under clause 39GA of this Schedule;
28
to an
*
NVETR staff member who is:
29
(c) an SES employee or an acting SES employee; or
30
(d) an APS employee who holds or performs the duties of an
31
Executive Level 2 position or an equivalent position.
32
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(3) A person exercising powers or performing functions under a
1
delegation under subclause (1) or (2) must comply with any
2
directions of the delegator.
3
(4) A person must not exercise powers or perform functions under a
4
delegation under subclause (1) or (2) in relation to an infringement
5
notice given by the person.
6
39GD Other enforcement action
7
To avoid doubt, action may be taken under this Division in
8
addition to, or instead of, any action that may be taken under any
9
other provision of this Act, including under any or all of the
10
following provisions of this Schedule:
11
(a) clause 12A (about imposing conditions on an approval);
12
(b) clause 26A (about compliance notices);
13
(c) Division 5 (about when a body ceases to be a VET provider);
14
(d) Subdivision 7-B (about re-crediting FEE-HELP balances).
15
27 Paragraph 72(b) of Schedule 1A
16
Repeal the paragraph, substitute:
17
(b) obtained or created by a
*
VET officer for the purposes of:
18
(i) Division 5A of Part 1, or Part 2, of this Schedule; or
19
(ii) Chapter 4, to the extent that it relates to this Schedule.
20
28 Paragraph 74(3)(a) of Schedule 1A
21
Repeal the paragraph, substitute:
22
(a) for a
*
Commonwealth officer--the performance of duties or
23
functions, or the exercise of powers:
24
(i) under, or for the purposes of, this Schedule; or
25
(ii) conferred as described in clause 39GB (about functions
26
and powers under the Regulatory Powers Act); or
27
29 After paragraph 75(aa) of Schedule 1A
28
Insert:
29
(ab) disclosure by a Commonwealth officer of VET personal
30
information relating to a
*
civil penalty provision for purposes
31
relating to:
32
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(i) monitoring or investigating compliance with the civil
1
penalty provision; or
2
(ii) enforcing the civil penalty provision; or
3
(iii) issuing an infringement notice in relation to the civil
4
penalty provision;
5
30 Subclause 1(1) of Schedule 1
6
Insert:
7
applicable court means:
8
(a) the Federal Court of Australia; or
9
(b) the Federal Circuit Court of Australia; or
10
(c) a court of a State or Territory that has jurisdiction in relation
11
to matters arising under this Act.
12
civil penalty provision means each of the following clauses or
13
subclauses of Schedule 1A:
14
(a) subclauses 39DB(1) and (2);
15
(b) subclauses 39DC(1) and (2);
16
(c) clause 39DE;
17
(d) subclause 39DF(1);
18
(e) subclause 39DG(1);
19
(f) subclauses 39DH(1) and (2);
20
(g) subclauses 39DI(1) and (2);
21
(h) clauses 39DJ, 39DK and 39DL.
22
Departmental investigator means a person appointed under
23
subclause 39GA(1) of Schedule 1A.
24
judicial officer means:
25
(a) a magistrate; or
26
(b) a Judge of a court of a State or Territory; or
27
(c) a Judge of the Federal Circuit Court of Australia; or
28
(d) a Judge of the Federal Court of Australia.
29
NVETR Commissioner means:
30
(a) the Chief Commissioner; or
31
(b) a Commissioner;
32
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within the meaning of the National Vocational Education and
1
Training Regulator Act 2011.
2
NVETR investigator means a person appointed under
3
subclause 39GA(2) of Schedule 1A.
4
NVETR staff member means a member of the staff of the
5
Regulator (within the meaning of the National Vocational
6
Education and Training Regulator Act 2011).
7
Regulatory Powers Act means the Regulatory Powers (Standard
8
Provisions) Act 2014.
9
31 Application of amendments
10
(1)
Subclause 39DC(1) of Schedule 1A to the Higher Education Support
11
Act 2003 (as inserted by this Schedule) applies in relation to conduct
12
referred to in paragraph (b) of that subclause that happens on or after
13
1 January 2016.
14
(2)
Subclause 39DC(2) of Schedule 1A to the Higher Education Support
15
Act 2003 (as inserted by this Schedule) applies in relation to conduct
16
referred to in paragraph (a) of that subclause that happens on or after
17
1 January 2016.
18
(3)
Subclause 39DF(1) of Schedule 1A to the Higher Education Support
19
Act 2003 (as inserted by this Schedule) applies in relation to requests
20
referred to in paragraph (d) of that subclause that are given on or after
21
1 January 2016.
22
(4)
Subclause 39DG(1) of Schedule 1A to the Higher Education Support
23
Act 2003 (as inserted by this Schedule) applies in relation to requests
24
referred to in paragraph (d) of that subclause that are given on or after
25
1 January 2016.
26
(5)
Subclause 39DH(1) of Schedule 1A to the Higher Education Support
27
Act 2003 (as inserted by this Schedule) applies in relation to requests
28
referred to in paragraph (b) of that subclause that are given on or after
29
1 January 2016.
30
(6)
Subclause 39DH(2) of Schedule 1A to the Higher Education Support
31
Act 2003 (as inserted by this Schedule) applies in relation to forms
32
referred to in paragraph (b) of that subclause that are given on or after
33
1 January 2016.
34
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Higher Education Support Amendment (VET FEE-HELP Reform) Bill
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(7)
Subclauses 39DI(1) and (2) of Schedule 1A to the Higher Education
1
Support Act 2003 (as inserted by this Schedule) apply in relation to
2
enrolments on or after 1 January 2016.
3
(8)
Clause 39DJ of Schedule 1A to the Higher Education Support Act 2003
4
(as inserted by this Schedule) applies in relation to VET courses of
5
study that commence on or after 1 January 2016.
6
(9)
Clauses 39DK and 39DL of Schedule 1A to the Higher Education
7
Support Act 2003 (as inserted by this Schedule) apply in relation to
8
enrolments on or after 1 January 2016.
9
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2015
29
Schedule 2--Other amendments
1
2
Higher Education Support Act 2003
3
1 After paragraph 137-18(4)(a)
4
Insert:
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(aa) subclause 46A(1) of Schedule 1A (unacceptable conduct);
6
2 Paragraph 39GD(d) of Schedule 1A
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Omit "about re-crediting FEE-HELP balances", substitute "about
8
repaying VET FEE-HELP assistance".
9
3 Clause 46A of Schedule 1A (heading)
10
Repeal the heading, substitute:
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46A Provider repayment of VET FEE-HELP assistance--
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unacceptable conduct by provider or provider's agent
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4 Subclause 46A(1) of Schedule 1A (heading)
14
Repeal the heading, substitute:
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Decision that this subclause applies
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5 Subclause 46A(1) of Schedule 1A
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Omit "re-credit a person's
*
FEE-HELP balance with an amount equal to
18
the amounts of
*
VET FEE-HELP assistance that the person received for
19
a
*
VET unit of study", substitute "decide that this subclause applies to a
20
person".
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6 Paragraph 46A(1)(a) of Schedule 1A
22
Repeal the paragraph, substitute:
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(a) the person has been enrolled in a
*
VET unit of study with a
24
*
VET provider; and
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(aa) the person received
*
VET FEE-HELP assistance for the unit;
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and
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Schedule 2 Other amendments
30
Higher Education Support Amendment (VET FEE-HELP Reform) Bill
2015
No. , 2015
7 Paragraph 46A(1)(d) of Schedule 1A
1
Repeal the paragraph, substitute:
2
(d) the person applies in writing to the provider for the remission
3
of the person's
*
VET FEE-HELP debt in relation to the unit;
4
and
5
8 Subclause 46A(1) of Schedule 1A (note)
6
Repeal the note, substitute:
7
Note 1:
If this subclause applies, the VET FEE-HELP debt of the person is
8
remitted (see subsection 137-18(4)) and the provider must repay the
9
amount of the VET FEE-HELP assistance to the Commonwealth (see
10
clause 56).
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Note 2:
A decision that this subclause does not ap ply to a person is reviewable
12
under Division 16.
13
9 Subclause 46A(3) of Schedule 1A
14
Omit "decision under subclause (1)", substitute "decision that
15
subclause (1) applies".
16
10 Paragraph 46A(3)(c) of Schedule 1A
17
Repeal the paragraph, substitute:
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(c) inviting the applicant and the VET provider to each make
19
written submissions to the Secretary within 28 days on why
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that decision should not be made; and
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11 Subclauses 46A(4) and (5) of Schedule 1A
22
Omit "decision under subclause (1)", substitute "decision that
23
subclause (1) applies".
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12 After paragraph 56(1)(a) of Schedule 1A
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Insert:
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(aa) subclause 46A(1) (unacceptable conduct);
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13 Clause 91 of Schedule 1A (table items 2 and 3)
28
Repeal the items, substitute:
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2
A decision that
subclause 46A(1) does
not apply to a person in
relation to a unit of
subclause 46A(1)
the
*
Secretary
Other amendments Schedule 2
No. , 2015
Higher Education Support Amendment (VET FEE-HELP Reform) Bill
2015
31
study
3
A decision that
subclause 46A(1)
applies to a person in
relation to a unit of
study
subclause 46A(1)
the
*
Secretary
14 Application of amendments
1
The amendments made by this Schedule apply, or are taken to have
2
applied, in relation to unacceptable conduct engaged in on or after
3
1 January 2016.
4
15 Transitional
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(1)
In this item:
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new law means the Higher Education Support Act 2003 as amended by
7
this Schedule.
8
Note:
The new law also includes the earlier amendments made by Schedule 1 to this Act.
9
old law means the Higher Education Support Act 2003 as amended by
10
Schedule 1 to this Act.
11
transitional period means the period starting on 1 January 2016 and
12
ending on the day before this Schedule commences.
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(2)
This item applies if this Schedule commences after 1 January 2016.
14
(3)
If a thing is done, arises or happens under a provision of the old law at a
15
time during the transitional period, the thing is treated (and may be dealt
16
with) as if it had been done, arisen or happened under the corresponding
17
provision of the new law at the same time.
18
Example 1:
A decision by the Secretary under subclause 46A(1) of Schedule 1A to the old
19
law is treated as if it were made, at the same time, under that subclause of the new law.
20
Example 2:
A VET provider's obligation arising under subclause 56(1) of Schedule 1A to
21
the old law is treated as if it arose, at the same time, under that subclause of the new
22
law.
23
Example 3:
The remission of a person's VET FEE-HELP debt under subsection 137-18(4)
24
of the old law is treated as if the remission happened, at the same time, under that
25
subsection of the new law.
26