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2008 - 2009
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
HIGHER EDUCATION LEGISLATION AMENDMENT (STUDENT SERVICES AND AMENITIES)
BILL 2009
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Employment Participation, the
Senator the Honourable Mark Arbib MP)
HIGHER EDUCATION LEGISLATION AMENDMENT (STUDENT SERVICES AND AMENITIES)
BILL 2009
OUTLINE
This Bill will amend the Higher Education Support Act 2003 to provide for a
fee to be imposed by higher education providers for a compulsory student
services and amenities fee. The fee will be capped at $250 per student per
annum and indexed annually. The Bill provides for the establishment of a
new component of the Higher Education Loan Program (HELP): Services and
Amenities-HELP (SA-HELP), which will provide eligible students with an
option to access a loan for the fee through SA-HELP if they wish. In
addition, the Bill will require higher education providers that receive
funding for student places under the Commonwealth Grant Scheme, to comply
with new benchmarks from 2010 onwards, for the provision of information on
and access to basic student support services of a non-academic nature; and
requirements to ensure the provision of student representation and
advocacy.
FINANCIAL IMPACT
The estimated financial impact of SA-HELP over the period 2008-09 to 2012-
13 is $200.403 million in expenses and -$97.909 million on fiscal balance.
HIGHER EDUCATION LEGISLATION AMENDMENT (STUDENT SERVICES AND AMENITIES)
BILL 2009
NOTES ON CLAUSES
Clause 1 - Short title
Provides for the Act to be cited as the Higher Education Legislation
Amendment (Student Services and Amenities) Act 2009.
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 has the effect of providing for sections 1-3 and any provision
not covered elsewhere in the table, to commence on Royal Assent; for
Schedule 1 to commence on a day to be fixed by Proclamation, or for any
provisions which have not commenced within six months of the Act receiving
Royal Assent, the day after the six month period expires.
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.
For ease of description, this explanatory memorandum uses the following
abbreviation:
'the Act' means the Higher Education Support Act 2003.
Schedule 1 - Student services and amenities
Higher Education Support Act 2003
Items 1 and 2 - paragraph 3-10(c), after paragraph 3-10(c)
Insert new paragraph (d) into section 3-10. Section 3-10 lists the
assistance provided to students contained in Chapter 3 of the Act. New
paragraph (d) adds SA-HELP assistance to the list of assistance provided
under Chapter 3 of the Act.
Item 3 - Subsection 5-1(2) (after table item 5)
Amends the table titled 'Application of Act to Table C providers' contained
in subsection 5-1(2) to include a reference to new Part 3-5 regarding SA-
HELP assistance. This is a consequential amendment.
Item 4 - At the end of section 19-37
Inserts new subsections 19-37(4), (5) and (6) into section 19-37. Section
19-37 contains rules concerning higher education providers requiring
membership of certain organisations or the payment or certain amounts.
Subsection 19-37(2) provides that a higher education provider must not
require a person enrolled with, or seeking to enrol with, the provider to
pay the provider or any other entity an amount for the provision to
students of an amenity, facility or service that is not of an academic
nature, unless the person has chosen to use the amenity, facility or
service. New subsection 19-37(4) provides an exception to subsection (2)
and allows an education provider to require the payment of a 'student
services and amenities fee.'
New subsection 19-37(5) defines student services and amenities fee. A
student services and amenities fee is:
. a fee imposed by a higher education provider on a person enrolled, or
seeking to enrol with the provider to pay for a period on or after 1 July
2009 to support the provision to students of amenities and services not
of an academic nature,
. determined by the provider in accordance with the Student Services and
Amenities Guidelines;
. payable on a day determined by the provider in accordance with the
Student Services and Amenities Guidelines; and
. an amount of not more than $125 for the six month period starting on 1
July 2009 or $250 if the fee is for a calendar year starting on or after
1 January 2010 and is worked out in accordance with the Student Services
and Amenities Fee Guidelines.
There are three notes at the end of new subsection 19-37(5).
Note 1 provides that the Student Services and Amenities Fee Guidelines are
made by the Minister under section 238-10 of the Act.
Note 2 provides that the maximum amount of the fee as prescribed in new
subparagraph (5)(d)(i) as $250 is indexed in accordance with Part 5-6 of
the Act.
Note 3 makes a reference to paragraph 19-102(3)(b) of the Act which
prevents a student services and amenities fee from being a fee defined in
section 19-102 of the Act.
New subsection (6) imposes obligations on higher education providers who
require the payment of a student services and amenities fee. New subsection
(6) requires providers to:
. publish, in accordance with the Student Services and Amenities Fee
Guidelines, enough information for a person liable to pay the fee to work
out the amount of the fee, and notice of the day on which the fee is
payable; and
. on request by a person who is, or may become, liable to pay a fee, inform
the person of the amount of the fee and the day it is or would be
payable.
Item 5 - After section 19-37
Inserts new section 19-38. This new section will limit the way higher
education providers can spend the student services and amenities fees they
receive.
New subsection (1) prevents a provider from spending an amount paid to them
to support a political party or the election of a person as a member of the
legislature of the Commonwealth, a State or a Territory, or a local
government body.
New subsection (2) requires that, where a higher education provider pays a
person or organisation an amount paid to a provider as a student services
and amenities fee, the provider must make the payment on condition that
none of the payment will be spent by the person or organisation to support
a political party or the election of a person as a member of the
legislature of the Commonwealth, a State or a Territory, or a local
government body.
New subsection (3) provides that a higher education provider must not spend
any amounts received as student services and amenities fees for purposes
other than those specified in the Student Services and Amenities Fee
Guidelines.
New subsection (4) provides that, to avoid doubt, new subsections (1), (2)
and (3) apply to an advance made to a higher education provider on account
of SA-HELP assistance in the same way as they apply to an amount paid to
the provider as a student services and amenities fee.
A note at the end of new subsection (4) further clarifies new subsection
(4) providing that an amount of SA-HELP assistance paid to a provider is an
amount paid to the provider as a student services and amenities fee because
under section 128-1 the SA-HELP assistance is paid to the discharge the
student's liability to pay the fee.
New subsection (4) ensures that the provisions limiting the expenditure of
the student services and amenities fee contained in new subsection 19-38
will apply to advances made to higher education providers on account of SA-
HELP assistance.
New subsection (5) provides that subsection (4) does not limit subsection
164-10(2).
Subsection 164-10(2) provides that where an advance on account is made, the
conditions that would be applicable to a payment of the amount on account
of which the advance is made are applicable to the advance.
Item 6 - After section 19-65
Inserts new section 19-67. New subsection 19-67(1) provides a higher
education provider that receives a grant under Part 2-2 of the Act must, in
each calendar year starting in 2010, comply with the requirements of the
Student Services, Amenities, Representation and Advocacy Guidelines as they
were in force on 30 June just before the year.
New subsection 19-67(2) prescribes what may be contained in the Student
Services, Amenities, Representation and Advocacy Guidelines.
New subsection 19-67(3) prevents the Student Services, Amenities,
Representation and Advocacy Guidelines from requiring a provider to fund an
organisation of students, or of students and other persons.
New subsection 19-67(4) prescribes that subsection 19-65(1) does not apply
to the Student Services, Amenities, Representation and Advocacy Guidelines.
Items 7, 8 and 9 - Section 65-1
These amendments are consequential amendments to include references to the
new SA-HELP assistance in the Table contained in section 65-1. This Table
summarises Chapter 3 of the Act which contains the provisions relating to
assistance to students.
Item 10 - At the end of Chapter 3
Inserts new Part 3-5. New Part 3-5 contains the substantive provisions
relating to SA-HELP assistance.
New Division 125 provides a description of new Part 3-5.
New Division 126 provides eligibility criteria for SA-HELP assistance. A
student is entitled to SA-HELP assistance where the student:
. meets the citizenship or residency requirements under new section 126-5;
. is enrolled in a course of study with the provider or a bridging course
for overseas-trained professionals on a day on which the fee is payable;
. meets the tax file number requirements; and
. has, on or before the day on which the fee is payable, completed, signed
and given to an appropriate officer of the provider a request for
Commonwealth assistance in relation to the fee.
New subsection 126-5(1) defines a request for Commonwealth assistance in
relation to a student services and amenities fee. This is defined as a
document in which a person requests the Commonwealth to provide assistance
under the Act in relation to the student assistance and amenities fee for
the period (and any student services and amenities fee imposed for a later
period during which the person is enrolled in the course of study or
bridging course for overseas-trained professionals) and is on a form
approved by the Minister.
The citizenship or residency requirements contained in new section 126-5
require a student, on the day the fee is payable, to be either an
Australian citizen or a permanent humanitarian visa holder resident in
Australia. Subsection 126-5(2) provides that a permanent humanitarian visa
holder does not meet the citizenship or residency requirements where the
provider reasonably expects that the visa holder will not undertake in
Australia any units of study with the provider.
New Division 127 provides how the amount of SA-HELP assistance to which a
student is entitled is worked out. The amount of SA- HELP assistance to
which an eligible student is entitled is the difference between the fee and
the sum of any payments of the fee made on or before the day on which the
fee is payable.
New Division 128 sets out how amounts of SA-HELP are paid. New section 128-
1 provides that where a student is entitled to SA-HELP assistance the
Commonwealth must lend the amount of SA-HELP assistance to the student and
pay the higher education provider the amount lent.
New section 128-5 provides that a provider must repay an amount of SA-HELP
assistance to the Commonwealth if new subsection 193-15(1) applies to the
student. See Item 36 for new subsection 193-15(1).
Note 1 provides that subsection 193-15(1) applies to a person who does not
have a tax file number.
Note 2 provides that the SA-HELP debt will be remitted if the higher
education provider must repay the amount under section 128-5.
Item 11 - Section 134-1
Amends section 134-1 to include a reference to SA-HELP assistance. This is
a consequential amendment.
Item 12 - After paragraph 137-1(c)
Amends paragraph 137-1(c). This amendment includes SA-HELP debts in the
definition of HELP debts.
Item 13 - After section 137-15
Inserts new section 137-16. New section 137-16 provides for when SA-HELP
debts occur.
New subsection 137-16(1) provides that a person incurs an SA-HELP debt
where the Commonwealth makes a loan to the person and uses the amount lent
to make a payment of the person's student services and amenities fee.
New subsection 137-16(2) provides that the amount of the SA-HELP debt is an
amount equal to the loan.
New subsection 137-16(3) provides that an SA-HELP debt is incurred by a
person immediately after the day on which the student services and
amenities fee to which the loan relates is payable, whether or not the
Commonwealth has made a payment in respect of the fee.
New subsection 137-16(4) provides that a person's SA-HELP debt is remitted
if the provider must repay the Commonwealth the amount the Commonwealth
paid the provider in relation to the fee.
Items 14 and 15 - Subsection 140-5(1)
Insert references to SA-HELP assistance into subsections 140-5(1) and 140-
25(1A) respectively. These are consequential amendments relating to Item
13.
Items 16 and 17 - Subsection 140-25(1A)
Inserts references to SA-HELP assistance into subsection 140-25(1A). These
are consequential amendments relating to Item 13.
Items 18, 19 and 20 - Paragraph 154-55(1)(a)
Are technical amendments relating to Item 21.
Item 21 - At the end of paragraph 154-55(1)(a)
Inserts new subparagraph 154-55(1)(a)(iii) to include a reference to SA-
HELP assistance into paragraph 154-55(1)(a). This amendment extends the
provisions which require higher education providers to give information in
their possession relating to students to the Commissioner (if asked by the
Commissioner) to information in their possession relating students who have
applied for SA-HELP assistance.
Item 22 - Subparagraph 169-5(1)(b)(i)
Amends subparagraph 169-5(1)(b)(i) to insert a reference to the student
services and amenities fee. Subsection 169-5(1) currently provides that a
higher education provider must give notices, as required by the
Administration Guidelines, to a person who is:
. enrolled with the provider for a unit of study and;
. who is seeking Commonwealth assistance under the Act for the unit or is a
Commonwealth supported student for the unit.
This amendment will require higher education providers to also give notices
as required by the Administration Guidelines in relation to student
services and amenities fees.
Items 23 - Section 169-30
Is a technical amendment relating to Item 22.
Item 24 - At the end of section 169-30
Inserts new subsection 169-30(2). This new subsection provides that, in
communications under (or for the purposes of) the Act between the
Commonwealth and a higher education provider concerning a person who has
had a student services and amenities fee imposed on them and has indicated
they are seeking SA-HELP for the fee, then the provider must use any
identifier for that person that the Secretary has indicated must be used in
such communications. This amendment mirrors a provision which currently
exists regarding other Commonwealth assistance.
Items 25 and 26 - Section 169-35, at the end of paragraph 169-35(b)
Amends section 169-35 to insert a reference to SA-HELP assistance. These
are technical amendments relating to Item 27.
Item 27 - At the end of section 169-35
Inserts new subsection 169-35(2). This new subsection has the effect of
limiting the period, during which a person can correct the information
provided in the request for Commonwealth assistance made in relation to a
student services and amenities fee where the effect of correcting the
information gives rise to an entitlement to SA-HELP, to six weeks after the
day on which a student services and amenities fee imposed on a person by a
higher education provider was payable This amendment mirrors the provisions
which currently exist for other forms of Commonwealth assistance contained
in the Act.
Items 28 and 29 - Subsections 187-1(1) and (1A), subsection 187-1(3)
Amends subsections 187-1(1), (1A) and 1(3). These are technical amendments
relating to Item 30.
Item 30 - After subsection 187-1(3A)
Inserts new subsections 187-1(3B), (3C), (3D) and (3E). These subsections
contain the tax file number requirements for obtaining SA-HELP assistance.
New subsection 187-1(3B) provides that a student will satisfy the tax file
number requirements in one of two ways. Either by providing their tax file
number to an appropriate officer of the provider and the provider being
satisfied that the number is a valid tax file number or by giving the
officer a certificate from the Commissioner of Taxation which states that
they have applied for a tax file number.
New subsection 187-1(3C) provides that compliance by a person with the tax
file number requirements in relation to the person's actual or proposed
enrolment in a course of study or bridging course for overseas-trained
professionals under subsection (3B) must be ignored in determining whether
the person has complied with subsection (3B) in relation to his or her
actual or proposed enrolment in another such course or bridging course.
New subsection 187-1(3D) provides that a student does not meet the tax file
number requirements for SA-HELP unless they comply with these requirements
on or before the day the fee is payable.
New subsection 187-1(3E) provides that a student may include a notification
under paragraph (3B)(a) in any request for Commonwealth assistance relating
to a student services and amenities fee in connection with their enrolment
in the course of study or bridging course for overseas-trained
professionals.
Item 31 - Paragraph 187-1(4)(a)
Amends paragraph 187-1(4)(a) to insert a reference to new paragraph 187-
1(3B)(a). Subsection 187-1(4) provides that the Commissioner may issue
guidelines about the circumstances in which a higher education provider is
or is not to be satisfied that a number is a valid tax file number for the
purposes of paragraph 187-1(1)(a) or (3B)(a). This amendment will extend
these guidelines to include SA-HELP assistance.
Item 32 - Transitional - guidelines issued under subsection 187-1(4) of the
Higher Education Support Act 2003
Inserts transitional provisions regarding the guidelines made under
subsection 187-1(4) relating to the circumstances in which a higher
education provider is or is not to be satisfied that a number is a valid
tax file number.
Subitem (1) provides that any guidelines made under subsection 187-1(4)
prior to commencement of the amendments to that subsection will remain in
force after commencement of the amendments.
Subitem (2) provides that subitem (1) does not prevent the repeal or
amendment of the guidelines.
Item 33 - Subsection 187-1(5)
Amends subsection 187-1(5) to insert a reference to new paragraph (3B)(b).
Subsection 187-1(5) provides that a certificate issued by the Commissioner
stating that the student has applied to the Commissioner asking the
Commissioner to issue a tax file number to the student must be in a form
approved by the Commissioner. This amendment will extend the requirement in
subsection 187-1(5) to include SA-HELP assistance.
Item 34 - After subsection 193-1(4)
Inserts new subsections 193-1(4A) and (4B). New subsection 193-1(4A)
provides that a higher education provider must notify a person in writing
how to meet the tax file number requirements if:
the person is enrolled in a course of study or bridging course with the
provider; and
the provider has imposed a student services and amenities fee on the
person; and
the person has (on or before the day on which the fee is payable) completed
and signed a request for Commonwealth assistance in relation to a student
services and amenities fee imposed for a period during which the person is
enrolled in the course or bridging course; and
in that request, the person requests SA-HELP assistance for the student
services and amenities fee; and
the request does not include a number that purports to be the person's tax
file number.
New subsection 193-1(4B) provides that the provider must notify the person
under new subsection 193-1(4A) either:
on or before the day the student services is payable; or
within seven days after the person gives the provider the request for
Commonwealth assistance;
whichever is earlier.
Item 35 - Paragraph 193-1(5)(a)
Amends paragraph 193-1(5)(a) to insert a reference to SA-HELP assistance.
Subsection 193-1(5) provides that section 193-1 does not apply to a person
if the person (in the request for Commonwealth assistance) requests HECS-
HELP assistance, FEE-HELP assistance or OS-HELP assistance, but the person
is not entitled to the assistance. This amendment will extend these
provisions to include SA-HELP assistance. That is, the tax file number
requirements in section 193-1 will not apply to a person where they have
applied for SA-HELP assistance but are not entitled to the assistance.
Item 36 - At the end of Division 193
Inserts new section 193-15. New section 193-15 provides circumstances in
which there is no entitlement to SA-HELP assistance for students without
valid tax file numbers in some circumstances. New subsection 193-15(1)
provides that subsection 193-15(1) applies to a person if:
. a higher education provider has imposed a student services and amenities
fee on a person; and
. the provider receives a notice under section 190-15 or 190-20 of the Act
that the person does not have or no longer has a tax file number; and
. 28 days after the provider receives the notice the person does not have a
tax file number, the provider has not been notified of a tax file number
which the provider is satisfied is valid; and
. the person is entitled to SA-HELP assistance for the fees.
New subsection 193-15(2) provides that in deciding whether a tax file
number is valid for the purposes of paragraph (1)(c) the provider must
comply with the guidelines issued by the Commissioner under subsection 187-
1(4).
New subsection 193-15(3) provides that where persons may be affected by
subsection (1) applying to them, a higher education provider must comply
with any requirements set out in guidelines issued by the Commissioner,
relating to procedures for informing persons of the need to obtain a valid
tax file number.
New subsection 193-15(4) provides that the guidelines issued under
subsection (3) are legislative instruments within the meaning of section 5
of the Legislative Instruments Act 2003.
Item 37 - Section 198-5 (before table item 1)
Amends the table in section 198-5. This table sets out the amounts under
the Act that are to be indexed and lists the first year of indexation. This
amendment adds SA-HELP assistance as an amount that is to be indexed and
lists 2010 as the first year of indexation.
Item 38 - Subsection 238-10(1) (after table item 10)
Inserts references to the Student Services, Amenities, Representation and
Advocacy Guidelines and Student Services and Amenities Fee Guidelines into
the Table in section 238-10. This section provides that the Minister may,
by legislative instrument, make Guidelines specified in the Table. This
amendment provides the legislative basis for the Minister to make the
Student Services, Amenities, Representation and Advocacy Guidelines and
Student Services and Amenities Fee Guidelines.
Item 39 - Subclause 1(1) of Schedule 1 (after paragraph (b) of the
definition of request for Commonwealth assistance)
Inserts paragraph (ba) into the definition of request for Commonwealth
Assistance contained in Clause 1 of Schedule 1. This amendment includes the
student services and amenities fee in the definition of request for
Commonwealth assistance.
Items 40, 41 and 42 - Subclause 1(1) of Schedule 1
Inserts definitions of SA-HELP assistance, SA-HELP debt and student
services and amenities fee into subclause 1(1) of Schedule 1. These are
consequential amendments.
Income Tax Assessment Act 1936
Item 43 - Paragraph 202(c)
Amends paragraph 202(c).
Section 202 provides the objects of Part IVA of the Act and includes, at
paragraph (c), the establishment of a system of tax file numbers to
facilitate the administration of legislation under which benefits are
provided by the Commonwealth to students in relation to contributions or
charges payable by students in respects of the costs of courses of study
provided by higher education institutions. This amendment will extend the
coverage of paragraph 202(c) to include the provision of benefits to
students in respect of 'costs of other services and amenities available to
students in connection with [higher education] institutions.' This
amendment will include the student services and amenities fee under this
section.
Normally an amendment to sections 8WA and 8WB of the Taxation
Administration Act 1953 (TAA 1953) is required to ensure that a person does
not commit an offence when carrying out his or her duties with tax file
numbers in respect of certain legislated purposes. This would entail
excluding certain paragraphs of section 202 of the Income Tax Assessment
Act 1936 (ITAA 1936) from the offence provisions in the above mentioned
sections of the TAA 1953. The amendment of section 202 merely extends the
existing purposes of paragraph 202(c) of the ITAA 1936. The extended
wording of paragraph 202(c) is automatically included in the exceptions to
the offence provisions.
The purpose of the Schedule is to introduce a student services and
amenities fee and to give students the option of deferring payment of the
cost of other services and amenities connected with their education at
institutions of higher education (SA-HELP). In order to facilitate the
deferral and repayment of those debts the tax file number is to be used in
a similar manner to that used under the HECS-HELP. This is consistent with
other benefits provided by government where the tax file number is used to
verify the identity of the debtor/recipient of a benefit and to facilitate
the repayment of the debt/overpayment.