Higher Education Support Amendment (VET FEE-HELP Student Protection) Bill 2018 [2018] AUSStaCSBSD 228 (17 October 2018)

• Higher Education Support Amendment (VET FEE-HELP Student Protection) Bill 2018
• Significant matters in delegated legislation 19

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Higher Education Support Amendment (VET FEE-HELP Student Protection) Bill 2018

Purpose	This bill seeks to amend the Higher Education Support Act 2003 to introduce a discretionary power for the secretary to re-credit a person's FEE-HELP balance to provide a remedy for VET FEE-HELP students who incurred debts as a result of inappropriate conduct by VET providers
Portfolio	Education and Training
Introduced	House of Representatives on 20 September 2018

Significant matters in delegated legislation ^[19]

1.28 The bill seeks to provide a remedy for students who incurred debts under the VET FEE-HELP loan scheme as a result of inappropriate conduct by training providers or agents of those providers.

1.29 Proposed subsection 46AA(1) seeks to allow the secretary to re-credit a person’s FEE-HELP balance with an amount equal to the amounts of VET FEE-HELP assistance that the person received for a VET unit of study with a VET provider, if the secretary is satisfied that:

• the person has either not completed the requirements for the unit or, under the VET guidelines, is taken not to have completed those requirements; and

• having regard to any matters prescribed by the VET guidelines, it is reasonably likely that the VET provider or agent engaged in inappropriate conduct towards the person in relation to the unit, or the VET course of study of which the unit forms a part.

1.30 Proposed subsection 46AA(2) provides that the VET guidelines may prescribe the circumstances which constitute inappropriate conduct.

1.31 The committee’s view is that significant matters, such what constitutes inappropriate conduct in the context of a student loan re-crediting scheme, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. The committee notes in this regard that a legislative instrument, made by the executive, is not subject to the full range of parliamentary scrutiny inherent in making changes through an amending bill.

1.32 In this instance, the explanatory memorandum states:

The ability for the VET Guidelines to prescribe matters that the Secretary must have regard to will ensure there is consistency in the Secretary's exercise of his/her discretion and also provide the Secretary with flexibility to consider a range of matters.^[20]

1.33 However, the committee is concerned that there is no specific guidance on the face of the bill as to the matters that may be prescribed in the guidelines. Further, the committee notes that it has not generally accepted consistency or flexibility as sufficient justification for making provision for significant matters in delegated, rather than primary, legislation.

1.34 The committee also notes that existing guidelines made under paragraph 46A(1)(c) of the HES Act^[21] specify a broad range of conduct by VET providers and their agents that may constitute 'unacceptable conduct' for the purposes of re-crediting a VET FEE-HELP balances. The conduct appears to relate largely to inappropriate inducements and misleading information.^[22] It is not clear to the committee that the matters set out in the existing guidelines, and the matters that may be set out in any new guidelines, could not be set out in primary legislation.

1.35 The committee seeks the minister’s more detailed advice as to why it is considered necessary and appropriate to leave to delegated legislation the matters that may constitute inappropriate conduct for the purposes of re-crediting VET FEE-HELP loan amounts.

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[19] Schedule 1, item 3, proposed subsections 46AA(1) and (2). The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(v).

[20] Explanatory memorandum, p. 11.

[21] That is, the Higher Education Support (VET) Guideline 2015 [F2015L02124]

[22] For example, publishing information suggesting VET FEE-HELP is not a loan (section 49); inappropriate marketing (section 50); inappropriate inducements (section 52); failure to provide VET FEE-HELP notices (section 53); failure to publish fees (section 58).