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2004-2005
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
THE SENATE
HIGHER EDUCATION LEGISLATION AMENDMENT (2005 MEASURES NO. 3) BILL
2005
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Education, Science and Training,
the Honourable Dr Brendan Nelson MP)
HIGHER EDUCATION LEGISLATION AMENDMENT (2005 MEASURES
NO. 3) BILL 2005
OUTLINE
The Bill will amend the Higher Education Support Act 2003 to:
Clarify the definition of Student Load (EFTSL) (sections 73-10, 104-45, 104-75, clause 1 of
Schedule 1).
Clarify the quality and accountability requirements to ensure that higher education providers'
selection procedures are based on merit in the providers' `reasonable view' (section 19-35).
Clarify that guidelines for `incidental fees' and fees in respect of overseas students are to be
specified in the Higher Education Provider Guidelines rather than the Commonwealth Grant
Scheme Guidelines (section 19-102).
Provide for an audit to be conducted on the operation of non-Table A Higher Education
Providers (HEPs) to determine their compliance with one or more of the requirements of the
Act (section 19-80):
o financial viability requirements;
o fairness requirements;
o compliance requirements; and
o contribution and fee requirements
Clarifying the requirements that need to be satisfied before a person will be taken to be a
Commonwealth supported student (sections36-5, 36-10, 36-25, 36-30). This includes:
a) ensuring that a student can only be a Commonwealth supported student if the
provisions set out in sections 36-10 and 36-15 are met;
b) ensuring that a higher education provider must not advise a person that he or she is
a Commonwealth supported student unless the person enrols in a unit on or before
the census date for the unit and is still enrolled in the unit at the end of the census
date;
c) clarifying that if a higher education provider has advised a person that they are a
Commonwealth supported student in relation to a course of study, they do not also
need to advise that student that they are Commonwealth supported in relation to
each unit of study taken as part of that course.
Reflect the new business name of Open Learning Australia: Open Universities Australia.
The Bill will also amend the Australian National University Act 1991 to repeal an obsolete
heading (Division 4 of Part 2 - heading), and correct a drafting error in section 36-15(1) (b) of the
Higher Education Support Act 2003.
FINANCIAL IMPACT
Nil.
HIGHER EDUCATION LEGISLATION AMENDMENT (2005 MEASURES
NO. 3) BILL 2005
NOTES ON CLAUSES
Clause 1 - Short title
Provides for the Act to be cited as the Higher Education Legislation Amendment (2005 Measures
No. 3) Act 2005.
Clause 2 - Commencement
Subclause 2(1) inserts a three column table setting out commencement information for various
provisions in the Act. Each provision of the Act specified in column 1 of the table commences (or
is taken to have commenced) in accordance with column 2 of the table and any other statement in
column 2 has effect according to its terms.
The table provides for sections 1-3, and schedules 1, 2, 4, 5 and 8 to commence on Royal Assent.
Schedule 3 of the Act commences on the 14th day after the Act receives the Royal Assent.
Schedule 6 commences on 23 November 2004. Items 1 to 6 of Schedule 7 also commence on 23
November 2004 - immediately after the commencement of Schedule 6.
Item 7 of Schedule 7 commences immediately after the commencement of item 6 of Schedule 1 to
the Higher Education Support Amendment (Abolition of Compulsory Up front Student Union
Fees) Act 2005. However, if item 6 of Schedule 1 to the Higher Education Support Amendment
(Abolition of Compulsory Up front Student Union Fees) Act 2005 does not commence, the
provision(s) do not commence at all.
Items 8, 10, 12 to 14, 16 to 36, 39 to 43, 45, 46, 48, 49, 50 to 56, 59 to 81 and 83 to 91 of
Schedule 7 also commence on 23 November 2004, immediately after the commencement of
Schedule 6 to the Act.
Item 9 of Schedule 7 commences immediately after the commencement of item 18 of Schedule 1
to the Higher Education Legislation Amendment (2005 Measures No. 2) Act 2005 (HELA No 2);
however, if item 18 of Schedule 1 of HELA No 2 does not commence, the provision does not
commence at all.
Item 11 of Schedule 7 commences immediately after the commencement of item 20 of Schedule 1
to HELA No 2; however, if item 20 of Schedule 1 to HELA No 2 does not commence, the
provision does not commence at all.
Item 15 of Schedule 7 commences immediately after the commencement of item 24 of Schedule 1
to HELA No 2; however, if item 24 of HELA No 2 does not commence, the provision does not
commence at all.
Items 37, 38 and 82 of Schedule 7 are to commence immediately after the commencement of item
44 of Schedule 1 to HELA No 2; however, if item 44 does not commence, these provisions do
not commence at all.
Item 44 of Schedule 7 commences immediately after the commencement of item 60 of Schedule 1
to HELA No 2; however, if item 60 does not commence, this provision does not commence at all.
Item 47 of Schedule 7 commences immediately after the commencement of item 61 of Schedule 1
to HELA No 2; however, if item 61 does not commence, this provision does not commence at all.
Item 57 of Schedule 7 commences immediately after the commencement of item 18 of Schedule 1
to HELA No 2; however, if item 18 of Schedule 1 of HELA No 2 does not commence, the
provision does not commence at all.
Item 58 of Schedule 7 commences immediately after the commencement of item 20 of Schedule 1
to HELA No 2; however, if item 20 of Schedule 1 to HELA No 2 does not commence, the
provision does not commence at all.
Item 92 of Schedule 7 commences immediately after the commencement of item 23 of Schedule 1
to HELA No 2; however, if item 23 of Schedule 1 to HELA No 2 does not commence, the
provision does not commence at all.
Subclause 2(2) provides that column 3 of the table contains additional information which may be
added to or edited in any published version of the Act, but that information in this column is not
part of the Act.
Clause 3 - Schedule(s)
Provides that each Act that is specified in a Schedule is amended or repealed as set out in the
applicable items in the Schedule and that any other item in a Schedule has effect according to its
terms.
Schedule 1 -- Student load, etc
Higher Education Support Act 2003
The amendments made in this Schedule have the effect of repealing the definitions of "student
load" and "maximum BOTP student load", and removing references in the Act to these terms as
defined terms.
Item 1 - Section 73-10
Section 73-10 sets out the meaning of "EFTSL". Item 1 has the effect of removing the reference
to "student load" in this section as a defined term by removing the asterisk from the term.
Items 2, 4 and 6 - Paragraphs 104-45(1)(d); 104-45(2)(d) and 104-45(3)(d)
Section 104-45 sets out the meaning of "bridging courses for overseas professionals". Items 2, 4
and 6 remove the references in paragraphs 104-45(1)(d), 104-45(2)(d) and 104-45(3)(d) to
"student load" as a defined term by removing the asterisk from the term.
Items 3, 5 and 7 - Paragraphs 104-45(1)(d); 104-45(2)(d) and 104-45(3)(d)
Section 104-45 sets out the meaning of "bridging courses for overseas professionals". Items 3, 5
and 7 remove the references in paragraphs 104-45(1)(d), 104-45(2)(d) and 104-45(3)(d) to
"maximum BOTP student load" (which is repealed by item 9 of Schedule 1) and substitute "the
student load that, in the provider's opinion, represents the load imposed on a full-time student for
one year".
Item 8 - Section 104-75
Section 104-75 sets out the meanings of "student load" and "maximum BOTP student load".
Item 8 repeals this section.
Item 9 - Clause 1 of Schedule 1 (definition of maximum BOTP student load)
The definition of "maximum BOTP student load" in the dictionary in clause 1 of Schedule 1 of the
Act refers to the definition set out in section 104-75. Item 9 repeals this definition.
Item 10 - Clause 1 of Schedule 1 (definition of student load)
The definition of "student load" in the dictionary in clause 1 of Schedule 1 of the Act refers to the
definition set out in section 104-75. Item 10 repeals this definition.
Item 11 - Application
Provides that the amendments made by this Schedule only apply to a bridging course for overseas
trained professionals in which a person enrols on or after the commencement of this Schedule.
Item 2 in the table set out in clause 2 of the bill indicates that Schedule 1 commences on Royal
Assent.
Schedule 2 -- Fairness requirements
Higher Education Support Act 2003
Items 1 and 2 - Subsections 19-35(2) and 19-35(4)
Section 19-35 requires that benefits and opportunities be available equally to all students.
Subsection 19-35(2) provides that a higher education provider that receives a grant under Chapter
2 of the Act, or a payment under section 124-1 must have open, fair and transparent procedures
that, in the provider's view, are based on merit for making decisions about the selection of
students who are to benefit from the grant, allocation, or payment. Item 1 amends this paragraph
so that the procedures must, in the provider's reasonable view, be based on merit.
Subsection 19-35(4) provides that a higher education provider that receives any payment under
section 110-1 must have open, fair and transparent procedures that, in the provider's view, are
based on merit for making decisions about the selection of persons seeking to enrol with the
provider, and the treatment of students undertaking that unit of study. Item 2 amends this
paragraph so that the procedures must, in the provider's reasonable view, be based on merit.
Item 3 - Application
Provides that the amendments made by Schedule 2 apply to the meeting of the fairness
requirements on or after the commencement of the Schedule. Item 2 in the table set out in clause
2 of the bill indicates that Schedule 2 commences on Royal Assent.
Schedule 3 -- Fees
Higher Education Support Act 2003
Item 1 - Paragraph 19-102(3)(d)
Section 19-102 sets out the meaning of "fee". Paragraph 19-102(3)(d) provides that a fee does
not include a fee that is imposed in accordance with the Commonwealth Grant Scheme Guidelines
for the imposition of fees in respect of overseas students. Item 1 removes the reference in this
paragraph to "Commonwealth Grant Scheme Guidelines" and replaces it with "Higher Education
Provider Guidelines".
Item 2 - Paragraph 19-102(3)(f)
Paragraph 19-102(3)(f) provides that a fee does not include a fee that is determined, in
accordance with guidelines issued by the Minister, to be a fee of a kind that is incidental to studies
that may be undertaken with a higher education provider, and that meets the criteria specified in
the Commonwealth Grant Scheme Guidelines. Item 2 repeals this paragraph and substitutes a
new paragraph 19-102(3)(f) which has the effect of providing that a fee does not include a fee
that is 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.
Item 3 - Application
Provides that the amendments made by Schedule 3 only apply to the determination of fees after
the commencement of the Schedule. Item 3 in the table set out in clause 2 of the bill indicates
that Schedule 3 commences on the 14th day after the Act receives the Royal Assent.
Schedule 4 -- Auditing requirements
Higher Education Support Act 2003
Item 1 - At the end of Subdivision 19-E of Division 19 of Part 2-1
Inserts a new section 19-80, which deals with compliance assurance for higher education
providers other than Table A providers. Proposed subsection 19-80(1) provides that 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 financial viability; fairness; compliance or contribution
and fee requirements.
Proposed subsection 19-80(2) states that the audit must be conducted by a body determined in
writing by the Minister, and at such times and in such matter as the Minister requires.
Proposed subsection 19-80(3) requires the provider to fully co-operate with the auditing body in
the course of its audit and to pay the auditing body any charges payable for the audit.
Proposed subsection 19-80(4) provides that a determination made under paragraph 19-80(2)(a) is
not a legislative instrument. This provision is included to assist readers as such a determination is
not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act
2003.
Schedule 5 -- Commonwealth supported student
Higher Education Support Act 2003
Item 1 - Subsection 36-5(1)
Subsection 36-5(1) indicates when a person is a Commonwealth supported student. Item 1
amends subsection 36-5(1) so that it provides that a person is a Commonwealth supported
student, in relation to a unit of study, if 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 in relation to the unit or, 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, 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.
Item 2 - Subsection 36-5(2)
Item 2 repeals subsection 36-5(2) as a consequence of the amendments made by item 1.
Item 3 - Paragraph 36-10(1)(e)
Subsection 36-10(1) sets out when a higher education provider must not advise that a person is
Commonwealth supported. Paragraph 36-10(1)(e) effectively states that 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 the person enrols in the unit on or before the census date for the unit.
Item 3 repeals paragraph 36-10(1)(e) and substitutes a new paragraph which clarifies the
requirement by providing that 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 the person enrolled in
the unit of study on or before the census date for the unit and at the end of the census date,
remained so enrolled.
Items 4 and 5 - Paragraphs 36-25(1)(b) and 36-25(2)(c)
Section 36-25 deals with continued support for Commonwealth supported students. Items 4 and
5 amend paragraphs 36-25(1)(b) and 36-25(2)(c) respectively to add a reference to section 36-15
as well as section 36-10, as a consequence of the amendments made by item 1.
Item 6 - At the end of section 36-25
Item 6 adds a proposed new subsection 36-25(3) which provides that if a higher education
provider has, under paragraph 36-5(1)(b), 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.
Item 7 - Paragraph 36-30(1)(b)
Section 36-30 requires higher education providers to fill Commonwealth supported places before
accepting other enrolments. Item 7 amends paragraph 36-30(1)(b) to include a reference to
section 36-15 as well as section 36-10, as a consequence of the amendments made by item 1.
Item 8 - Application
Item 8 provides that the amendments made by this Schedule only apply to the giving of advice
under section 36-5 of the Higher Education Support Act 2003 after the commencement of this
Schedule. Item 4 in the table set out in clause 2 of the bill provides that Schedule 5 commences
on Royal Assent.
Schedule 6 -- Amendment of reference from Open Learning
Australia to Open Universities Australia
Higher Education Support Act 2003
Schedule 6 contains a number of technical amendments to change references in the Act from
"Open Learning Australia" to "Open Universities Australia".
Item 1 - Subsection 179-15(3A)
Amends subsection 179-15(3A) to change the reference to "Open Learning Australia" to "Open
Universities Australia".
Item 2 - Division 190 of Part 5-5 (heading)
Repeals the heading and substitutes a new heading which refers to "Open Universities Australia".
Item 3 - Division 193 of Part 5-5 (heading)
Repeals the heading and substitutes a new heading which refers to "Open Universities Australia".
Items 4 and 5 - Clause 1 of Schedule 1 (definition of officer of Open Learning Australia)
Item 4 repeals the definition of "officer of Open Learning Australia". Item 5 inserts a new
definition in clause 1 of Schedule 1 - "officer of Open Universities Australia has the meaning
given by subsection 179-15(3A)."
Items 6 and 7 - Clause 1 of Schedule 1 (definition of Open Learning Australia)
Item 6 repeals the definition of "Open Learning Australia". Item 7 inserts a new definition in
clause 1 of Schedule 1 - "Open Universities Australia means Open Universities Australia Pty Ltd
(ACN 053 431 888)."
Schedule 7 -- General amendments to change references
Schedule 7 contains a number of technical amendments to change asterisked and non-asterisked
references in the Act from "Open Learning Australia" to "Open Universities Australia".
Part 1--Amendments to change asterisked references
Items 1 - 49 - Amendment of Act - asterisked references
Higher Education Support Act 2003
Items 1-49 amend the sections, subsections, paragraphs, subparagraphs and schedule items of the
Higher Education Support Act 2003 listed in items 2-49 to reflect the change of name from Open
Learning Australia to Open Universities Australia.
Part 2--Amendments to change other references
Items 50 - 92 - Amendment of Acts - other references
Higher Education Support Act 2003
Items 50-91 amend the sections, subsections, paragraphs, subparagraphs and schedule items of
the Higher Education Support Act 2003 listed in items 51-91 to reflect the change of name from
Open Learning Australia to Open Universities Australia.
The notes to items 53, 55, 59 and 80 provide that the headings to sections 104-2, 104-3, 104-4
and subsection 193-1(2A) respectively are amended by omitting "Open Learning Australia" and
substituting "Open Universities Australia".
Higher Education Legislation Amendment (2005 Measures No.2) Act 2005
Item 92 amends subitems 23(1) and (4) by omitting "Open Learning Australia" and substituting
"Open Universities Australia".
Schedule 8 -- Technical amendment
Australian National University Act 1991
Item 1 - Division 4 of Part 2 (heading)
Item 1 makes a technical amendment to repeal an obsolete heading.
Higher Education Support Act 2003
Item 2 - Paragraph 36-15(1)(b)
Section 36-15 deals with when a person is not to be advised they are a Commonwealth supported
student. Item 2 makes a technical amendment to paragraph 36-15(1)(b) to omit a reference to
"overseas trained professionals" and substitute "overseas-trained professionals".