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2008-2009
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
HIGHER EDUCATION SUPPORT AMENDMENT (VET FEE-HELP AND PROVIDERS) BILL 2009
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Education, the Honourable
Julia Gillard MP)
HIGHER EDUCATION SUPPORT AMENDMENT (VET FEE-HELP AND PROVIDERS) BILL 2009
OUTLINE
The purpose of the Bill is to provide for technical amendments to Schedule
1A of the Higher Education Support Act 2003 which clarify that a student
can not access VET FEE-HELP assistance to undertake a VET unit of study,
unless that VET unit of study is required to be undertaken in order for the
student to receive the award associated with that course of study.
In addition, new clauses are inserted into Schedule 1A of HESA to ensure
that the Minister can revoke the approval as a VET provider of a body
corporate, if that body corporate no longer offers at least one VET course
of study, or is no longer established under a law of the Commonwealth, a
State or Territory, or no longer carries on business in Australia, or no
longer has its central management and control in Australia.
These amendments provide appropriate protections for the Minister and the
Commonwealth. The amendments in relation to revocation of a body
corporate's approval as a VET provider also mirror those made to HESA in
2007 in relation to higher education providers, ensuring consistency
between the FEE-HELP and VET FEE-HELP Assistance Scheme provisions.
The Bill also provides for amendments to allow higher education and VET
provider notices of approval to take effect on the day immediately
following the day the relevant notice is registered on the Federal Register
of Legislative Instruments. The amendments provide for the repeal of the
provisions governing the date of effect for such notices. The Legislative
Instruments Act 2003 will operate to determine the date of effect for
higher education and VET provider notices of approval. The amendments also
provide that, in the event a notice of approval ceases to have effect under
the Legislative Instruments Act 2003, the cessation has no effect in
relation to any rights or responsibilities which have already accrued in
relation to the enrolment of students with a higher education or VET
provider at the time the notice of approval ceases to have effect.
The amendments will ensure that higher education and VET providers will be
able to offer FEE-HELP or VET FEE-HELP assistance to students immediately
following the registration of the relevant notice of higher education or
VET provider approval.
FINANCIAL IMPACT
There is no financial impact associated with these amendments.
HIGHER EDUCATION SUPPORT AMENDMENT (VET FEE-HELP AND PROVIDERS) BILL 2009
NOTES ON CLAUSES
Clause 1 - Short title
Provides for the Act to be cited as the Higher Education Support Amendment
(VET FEE-HELP and Providers) Act 2009.
Clause 2 - Commencement
Clause 2 provides that the Higher Education Support Amendment (VET FEE-HELP
and Providers) Act 2009 will commence on the day after it receives Royal
Assent.
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 - VET FEE-HELP
Higher Education Support Act 2003
Item 1 - After paragraph 6(d) of Schedule 1A
Inserts new paragraph 6(da) into clause 6. Clause 6 sets out the
requirements to be satisfied before the Minister may approve a body
corporate as a VET provider. Proposed paragraph 6(da) is a new requirement
that a body corporate must offer at least one VET course of study before
the Minister may approve that body corporate as a VET provider.
Clause 1 of Schedule 1 of the Act defines VET course of study to mean a
structured and integrated program of vocational education or vocational
training, usually consisting of a number of modules (units of study) or
shorter programs, and leading to the award of a VET diploma, a VET advanced
diploma, a VET graduate diploma or a VET graduate certificate.
New paragraph 6(da) mirrors paragraph 16-25(da) of the Act, which is a
condition that applies to the approval by the Minister of a body corporate
as a higher education provider.
Item 2 - Application
Item 2 is an application provision relating to Item 1 which provides that
paragraph 6(da) of Schedule 1A will apply to decisions about approvals of
bodies corporate whose applications are made after the commencement of that
paragraph.
Item 3 - After clause 30 of Schedule 1A
Inserts new clause 30A after clause 30 of Schedule 1A. Proposed clause 30A
provides that the Minister may revoke a body's approval as a VET provider
if the body ceases to satisfy the requirements of paragraph 6(a) and the
Minister has complied with the requirements of clause 34.
Paragraph 6(a) provides that, as a requirement of approval as a VET
provider, the body corporate must:
(i) be established under the law of the Commonwealth, a State or a
Territory; and
(ii) carry on business in Australia; and
(iii) have its central management and control in Australia.
Clause 34 sets out the requirements to be satisfied by the Minister before
a body's approval as a VET provider may be revoked. Before revoking a
body's approval the Minister must give the body notice in writing:
(a) stating that the Minister is considering revoking the body's
approval; and
(b) stating the reasons why the Minister is considering revoking the
body's approval; and
(c) inviting the body to make written submissions to the Minister
within 28 days concerning why the approval should not be revoked.
Item 4 - Application
Item 4 is an application provision relating to Item 3 which provides that
clause 30A of Schedule 1A will apply to approvals granted before, on or
after the commencement of that clause.
Item 5 - After clause 32 of Schedule 1A
Inserts new clause 32A after clause 32 of Schedule 1A. Proposed clause 32A
provides that the Minister may revoke a body's approval as a VET provider
if the body ceases to offer VET courses of study, and the Minister has
complied with the requirements of clause 34 (process for revoking approval
as a provider for loss of status or a breach).
Item 6 - Application
Item 6 is an application provision relating to Item 5 which provides that
clause 32A of Schedule 1A will apply to approvals granted as a result of an
application made after the commencement of that clause.
Item 7 - At the end of clause 43 of Schedule 1A
Item 7 inserts a note at the end of clause 43 of Schedule 1A relating to
Item 9. This note states that Clause 45A affects whether a person
undertakes a VET unit of study as part of a VET course of study.
Item 8 - At the end of subclause 45(1) of Schedule 1A
Item 8 inserts a note at the end of subclause 45(1) of Schedule 1A relating
to Item 9. This note states that clause 45A affects whether a person
undertakes a VET unit of study as part of a VET course of study for the
purposes of paragraph 45(1)(a).
Item 9 - At the end of Subdivision 7-A of Schedule 1A
Inserts new clause 45A at the end of Subdivision 7-A of Schedule 1A.
Proposed clause 45A disentitles a student to VET FEE-HELP assistance, in
respect of a VET unit of study undertaken as part of a VET course of study,
if undertaking the unit involves the student doing more than he or she
needs to do to be awarded any of the following:
(a) a *VET diploma;
(b) a *VET advanced diploma;
(c) a *VET graduate diploma;
(d) a *VET graduate certificate.
Schedule 2 - Date of effect of approval of providers
Higher Education Support Act 2003
Item 1 - At the end of subsection 16-5(3)
Inserts at the end of subsection 16-5(3) the words "or the notice of the
provider's approval ceases to have effect under Part 5 (Parliamentary
scrutiny of legislative instruments) of the Legislative Instruments Act
2003".
This amendment has the effect that if the notice of a higher education
provider's approval ceases to have effect as a result of disallowance by
Parliament, in accordance with Part 5 of the Legislative Instruments Act
2003, the body ceases to be a higher education provider.
Item 2 - Subsection 16-55(2)
Repeals and substitutes subsection 16-55(2) to provide that the Minister's
decision to approve a body corporate as a higher education provider will
take effect when the notice of approval takes effect in accordance with the
Legislative Instruments Act 2003. This amendment also includes a note
stating that section 12 of the Legislative Instruments Act 2003 provides
for when a legislative instrument takes effect.
Item 3 - At the end of section 22-1
Inserts new subsection 22-1(c). This is a consequential amendment relating
to Amendment 4.
Item 4 - At the end of Division 22
Inserts new Subdivision 22-E. New Subdivision 22-E includes new section 22-
45 which explains the effect of a higher education provider's notice of
approval ceasing to have effect under the Legislative Instruments Act 2003.
Subsection 22-45(1) makes clear that the provisions of section 22-45 will
apply if a decision of the Minister to approve a body corporate as a higher
education provider has taken effect, and the body ceases to be approved as
a higher education provider because the notice of the approval has ceased
to have effect under Part 5 of the Legislative Instruments Act 2003.
Subsection 22-45(2) clarifies that the cessation of a body as a higher
education provider will not:
(i) affect the operation of the Act, or any instrument made under
the Act, in relation to the body before the cessation; or
(ii) affect anything duly done or suffered in relation to the body
before the cessation; or
(iii) affect any right, privilege, obligation or liability acquired,
accrued or incurred before the cessation; or
(iv) affect any penalty, forfeiture or punishment incurred in respect
of the body having been a higher education provider; or
(v) affect any investigation, legal proceeding or remedy in respect
of any such right, privilege, obligation, liability, penalty,
forfeiture or punishment.
This amendment is largely modelled on section 15 of the Legislative
Instruments Act 2003 to the extent that, notwithstanding the cessation of
the notice of approval, the cessation will not impact on any rights or
responsibilities that have already accrued.
Item 5 -At the end of subclause 5(2) of Schedule 1A
Inserts the words "or the notice of the VET provider's approval ceases to
have effect under Part 5 (Parliamentary scrutiny of legislative
instruments) of the Legislative Instruments Act 2003".
This amendment has the effect that if the notice of a VET provider's
approval ceases to have effect as a result of disallowance by Parliament,
in accordance with Part 5 of the Legislative Instruments Act 2003, the body
ceases to be a VET provider.
Item 6 - Subclause 12(2) of Schedule 1A
Repeals and substitutes subclause 12(2) of Schedule 1A to provide that the
Minister's decision to approve a body corporate as a VET provider will take
effect when the notice of approval takes effect in accordance with the
Legislative Instruments Act 2003. This amendment also includes a note
stating that section 12 of the Legislative Instruments Act 2003 provides
for when a legislative instrument takes effect.
Item 7 - At the end of clause 29 of Schedule 1A
Inserts new subclause 29(c) in Schedule 1A. This is a consequential
amendment relating to Amendment 8.
Item 8 - At the end of Division 5 of Schedule 1A
Inserts new Subdivision 5-E at the end of Division 5 of Schedule 1A. New
Subdivision 5-E includes new clause 39A which explains the effect of a VET
provider's notice of approval ceasing to have effect under the Legislative
Instruments Act 2003. Subclause 39A(1) clarifies that the provisions of
clause 39A will apply if a decision of the Minister to approve a body
corporate as a VET provider has taken effect, and the body ceases to be
approved as a VET provider because the notice of the approval has ceased to
have effect under Part 5 of the Legislative Instruments Act 2003.
Subclause 39A(2) makes clear that a cessation of a body as a VET provider
will not:
(i) affect the operation of the Act, or any instrument made under
the Act, in relation to the body before the cessation; or
(ii) affect anything duly done or suffered in relation to the body
before the cessation; or
(iii) affect any right, privilege, obligation or liability acquired,
accrued or incurred before the cessation; or
(iv) affect any penalty, forfeiture or punishment incurred in respect
of the body having been a VET provider; or
(v) affect any investigation, legal proceeding or remedy in respect
of any such right, privilege, obligation, liability, penalty,
forfeiture or punishment.
This amendment is largely modelled on section 15 of the Legislative
Instruments Act 2003 to the extent that, notwithstanding the cessation of
the notice of approval, the cessation will not impact on any rights or
responsibilities that have already accrued.
Item 9 - Application and transitional provisions
Subitem 9(1) is an application provision which specifies that the
amendments made by new Schedule 2 apply to decisions to approve bodies
corporate as higher education providers or VET providers which were made on
or after commencement of Schedule 2.
This application provision will also apply to decisions to approve bodies
corporate as higher education providers or VET providers that were made
before the commencement of Schedule 2, except for the following decisions:
(i) any decisions which took effect before commencement of Schedule
2; and
(ii) any decisions for which the notice of approval ceased to have
effect under Part 5 of the Legislative Instruments Act 2003 before
commencement of Schedule 2.
Subitem 9(2) is a transitional provision which stipulates that any decision
to approve a body corporate as a higher education provider or VET provider
will take effect on commencement of Schedule 2 as long as the notice of
approval was registered under the Legislative Instruments Act 2003 before
commencement of Schedule 2 and, apart from this subitem, the decision would
have taken effect prior to commencement of Schedule 2 because of the
amendments made by this Schedule applying as described in subitem 9(1).