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Education Legislation Amendment (Startup Year and Other Measures) Bill 2023 [2023] AUSStaCSBSD 50 (22 March 2023)

Chapter 1

Initial scrutiny

1.1 The committee comments on the following bills and, in some instances, seeks a response or further information from the relevant minister.

Education Legislation Amendment (Startup Year and Other Measures) Bill 2023

Purpose
This bill seeks to amend the Higher Education Support Act 2003 (HESA) to create a new form of Higher Education Loan Program (HELP) assistance, SY-HELP, and to list Avondale University as a Table B provider under HESA.
The Bill also amends the Australian Research Council Act 2001 to apply current indexation rates to existing appropriation amounts and to insert a new funding cap for the financial year commencing 1 July 2025.
Portfolio
Education
Introduced
House of Representatives on 9 March 2023

Availability of merits review[1]

1.2 Item 25 of Schedule 1 to the bill seeks to amend the Higher Education Support Act 2003 to introduce Part 3-7 SY-HELP assistance which would provide for a new form of Higher Education Loan Program assistance, SY-HELP, for students in accelerator program courses at Australian universities and university colleges.

1.3 Proposed section 128B-1 outlines the criteria regarding who is entitled to SY‑HELP assistance, including that the student meets the citizenship or residency requirements under proposed section 128B-30. Proposed section 128B‑30 outlines the citizenship or residency requirements a student must meet to be entitled to SY-HELP assistance. Proposed subsection 128B‑30(6) provides that, despite the other requirements in section 128B‑30, a student does not meet the citizenship or residency requirements in relation to an accelerator program course if the higher education provider reasonably expects that the student will not undertake in Australia any of the accelerator program course.

1.4 Proposed section 128E-30 further provides that an amount of SY-HELP assistance that a person received for an accelerator program course with a higher education provider is reversed if the Secretary of the Department of Education is satisfied that the person was not entitled to receive SY-HELP assistance for the course with the provider. The effect of a reversal of SY-HELP assistance is that the higher education provider must pay back to the Commonwealth the amount paid to the provider for the course, and pay to the person who received the assistance the amount the person paid in relation to the accelerator program course fee.[2] The person is also discharged from all liability to pay or account for the amount of SY-HELP assistance received.[3] A decision to reverse SY-HELP assistance may therefore be beneficial in some circumstances, for example where a student is not able to complete the course. However, the decision may also be detrimental in other circumstances, for example where a person is relying on the SY-HELP assistance to undertake a course of study. A decision not to reverse SY-HELP assistance may similarly be detrimental or beneficial to an individual, depending on their specific circumstances.

1.5 The committee considers that, generally, administrative decisions that will, or are likely to, affect the interests of a person should be subject to independent merits review unless a sound justification is provided. The committee's usual expectation is that such justifications are provided by reference to the Administrative Review Council's guidance document, What decisions should be subject to merits review?. The committee expects any justification for excluding merits review to be set out clearly within the explanatory materials to the bill.

1.6 In this case, it does not appear that the decisions under proposed subsection 128B-30(6) and proposed section 128E-30 are subject to merits review. The committee notes that a number of other decisions in Part 3-7 which determine whether a student is entitled to SY-HELP assistance are reviewable decisions. For example: a decision that a student is not a genuine student in relation to the course;[4] a decision that a new accelerator program course will impose an unreasonable study load on a student;[5] and a decision whether SY-HELP assistance be reversed if special circumstances apply to a person.[6]

1.7 It is unclear to the committee why a decision under proposed subsection 128B-30(6) and proposed section 128E-30 are not reviewable decisions when they appear to similarly impact the ability of a student to access SY-HELP assistance. The explanatory memorandum to the bill does not comment on why merits review is not available for these decisions.

1.8 In light of the above, the committee requests the minister's advice as to why it is necessary and appropriate not to provide that independent merits review will be available in relation to a decision made under subsection 128B‑30(6) and section 128E-30 of the bill.

[1] Schedule 1, item 25, proposed subsection 128B-30(6) and proposed section 128E-30. The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(iii).

[2] Schedule 1, item 25, proposed section 128D-5.

[3] Schedule 1, item 25, proposed section 128D-10.

[4] Schedule 1, item 25, proposed subsection 128B-10(1).

[5] Schedule 1, item 25, proposed subsection 128B-15(2).

[6] Schedule 1, item 25, proposed section 128E-1.

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