Higher Education Support Amendment (Cost Recovery) Bill 2018 - Commentary on Ministerial Responses [2018] AUSStaCSBSD 258 (28 November 2018)

• Higher Education Support Amendment (Cost Recovery) Bill 2018
• Significant matters in delegated legislation 11

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Higher Education Support Amendment (Cost Recovery) Bill 2018

Purpose	This bill seeks to amend the Higher Education Support Act 2003 (the Act) to: • implement an application fee for applications for approval as higher education providers whose students are entitled to FEE-HELP assistance under the Act; and • reflect the introduction of an annual charge on higher education providers under the Higher Education Support (Charges) Bill 2018
Portfolio	Education and Training
Introduced	House of Representatives on 19 September 2018
Bill status	Before the House of Representatives

Significant matters in delegated legislation ^[11]

2.27 In Scrutiny Digest 12 of 2018^[12] the committee requested the minister's advice as to why:

• it is considered necessary and appropriate to provide that the rate of a penalty for late payment and the right of review of decisions made in relation to the collection or recovery of higher education provider charges may be set out in delegated legislation; and

• if it is considered appropriate to leave such matters to delegated legislation, the bill does not require that the Guidelines make review rights available.

Minister's response^[13]

2.28 The minister advised:

The purpose of the Higher Education Support Amendment (Cost Recovery) Bill 2018 (Cost Recovery Bill) is to amend the Higher Education Support Act 2003 (HESA) to put in place an application fee on applicants seeking approval as higher education providers under HESA, and to reflect the introduction of an annual charge on higher education providers under the Higher Education Support (Charges) Bill 2018.
Subordinate legislation provides greater flexibility in addressing changes to matters under proposed subsection 19-66(2) of the Cost Recovery Bill each year, instead of pursuing amendments through primary legislation. In addition, administrative issues related to the higher education provider charge and application fee (i.e. the setting of the rate of a penalty for late payment, and right of review of decisions made in relation to the collection and recovery of the annual charge and application fee) are best addressed outside the Cost Recovery Bill. This facilitates a more timely and efficient response to administrative changes for the cost recovery charges.
In addition, there is existing subordinate legislation (VET Student Loans Rules 2016) for the collection and recovery of the approved VET Student Loans course provider charge that provides for late payment penalty. This sets a precedent, which was used to guide the development of the Cost Recovery Bill.
Therefore, I consider delegated legislation the appropriate mechanism for setting out matters referred to in the proposed subsection 19-66(2) of the Cost Recovery Bill.
I also note the committee's comments that while the proposed subsection 19-66(2) in the Cost Recovery Bill would allow the Higher Education Provider Guidelines 2012 (the Guidelines) to include options for review of such decisions, the Bill does not require the Guidelines to include review rights. In response, although the Bill does not require the Guidelines to include review rights, I will undertake to ensure that review rights are included in the Guidelines.

Committee comment

2.29 The committee thanks the minister for this response. The committee notes the minister's advice that leaving administrative issues, such as the setting of the rate of a penalty for late payment and the right of review of decisions made in relation to the collection and recovery of the annual charge and application fee, to delegated legislation 'facilitates a more timely and efficient response to administrative changes for the cost recovery charges.' The committee also notes the advice that this approach follows that taken in relation to the VET Student Loans course provider charge.

2.30 However, the committee reiterates its view that the amount of a penalty or the review of decisions relating to the collection and recovery of the higher education provider charge are significant matters that should generally be included in primary legislation unless a sound justification for the use of delegated legislation is provided. The committee does not consider that the need for administrative flexibility, nor the existence of similar provisions in other legislation, provide sufficient justification for leaving these matters to be set out in delegated legislation.

2.31 The committee welcomes the minister's undertaking to ensure that review rights in relation to the collection or recovery of higher education provider charges are included in the Higher Education Provider Guidelines (the Guidelines), despite the bill not requiring that they be included. However, given this intention to include review rights in the Guidelines in any event, it remains unclear why it would not be appropriate to include in the bill a specific requirement that the Guidelines include review rights.

2.32 The committee requests that the key information provided by the minister be included in the explanatory memorandum, noting the importance of this document as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.33 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of leaving the rate of a penalty for late payment and the right of review of decisions made in relation to the collection or recovery of higher education provider to be set out in delegated legislation.

2.34 The committee also draws this matter to the attention of the Senate Standing Committee on Regulations and Ordinances for information.

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[11] Schedule 1, Part 2, item 3, proposed subsection 19-66(2). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv).

[12] Senate Scrutiny of Bills Committee, Scrutiny Digest 12 of 2018, at pp.8-9.

[13] The minister responded to the committee's comments in a letter dated 16 November 2018. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 14 of 2018 available at: www.aph.gov.au/senate_scrutiny_digest