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HIGHER EDUCATION LEGISLATION AMENDMENT BILL (NO. 1) 2002

2002

The Parliament of the
Commonwealth of Australia

HOUSE OF REPRESENTATIVES




Presented and read a first time









Higher Education Legislation Amendment Bill (No. 1) 2002

No. , 2002

(Education, Science and Training)



A Bill for an Act to amend the Higher Education Funding Act 1988, and for other purposes

Contents

A Bill for an Act to amend the Higher Education Funding Act 1988, and for other purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Higher Education Legislation Amendment Act (No. 1) 2002.

2 Commencement

This Act commences on the day on which it receives the Royal Assent.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Amendment of the Higher Education Funding Act 1988

1 Paragraph 60(1)(a)

After “Chapter 4A”, insert “, Chapter 4B”.

2 After paragraph 61(1)(aa)

Insert:

(ab) the making by the Commonwealth of payments under Chapter 4B, or of advances on account of payments under that Chapter; and

3 After Chapter 4A

Insert:

Chapter 4B—Bridging for overseas-trained professionals (BOTP) loan scheme

Part 4B.1—Introduction

98N Simplified outline

The following is a simplified outline of this Chapter:

• This Chapter sets up a scheme for the Commonwealth to make loans to overseas-trained professional people who do not meet the requirements for entry to their professions in Australia.

• The loans will be applied to pay fees for bridging courses (BOTP courses) which will enable those people to meet those entry requirements.

• To be eligible for a loan, an overseas-trained professional person must:

(a) meet certain citizenship/residency requirements; and

(b) obtain an assessment statement from a relevant assessing body; and

(c) enrol in a course that relates to the assessment statement.

• An assessment statement is a statement to the effect that, if the person were to successfully undertake further studies, be successful in one or more examinations or successfully undertake a tuition and training program, the person would meet the requirements for entry to that profession in Australia.

98P Definitions

(1) In this Chapter, unless the contrary intention appears:

appropriate officer of an institution means a person who is an appropriate officer of the institution for the purposes of Chapter 4.

assessment statement has the meaning given by section 98T.

BOTP course has the meaning given by section 98U.

BOTP loan means a loan under subsection 98ZA(2).

census date, in relation to so much of a BOTP course as is undertaken by a student for a study period, means:

(a) in the case of a BOTP course that is covered by subsection 98U(2) or (3):

(i) if the study period is of not less than 6 weeks duration—the date that is 14 days after the date on which the student starts to undertake the course of instruction or the tuition and training program concerned; or

(ii) if the study period is of less than 6 weeks duration—the date on which the student starts to undertake the course of instruction or the tuition and training program concerned; or

(b) in the case of a BOTP course that is covered by subsection 98U(1), where the study period is a semester because of subsection 37(2) or (3) as applied by subsection (4) of this section:

(i) if the study period is of not less than 6 weeks duration—the date that is 14 days after the date on which the student starts to undertake the subject unit concerned; or

(ii) if the study period is of less than 6 weeks duration—the date on which the student starts to undertake the subject unit concerned; or

(c) in the case of a BOTP course that is covered by subsection 98U(1), where the study period is a semester otherwise than because of subsection 37(2) or (3) as applied by subsection (4) of this section—such date as is specified for the purposes of this definition by the Minister, by notice published in the Gazette, in relation to BOTP courses undertaken in that semester.

citizenship/residency requirements has the meaning given by section 98V.

fees, in relation to a BOTP course at an institution, means tuition, examination or other fees payable to the institution by a student enrolled at, or applying for enrolment at, the institution in connection with the BOTP course, but does not include:

(a) fees the payment of which is voluntary; or

(b) fees payable in respect of an organisation of students, or of students and other persons, or in respect of the provision to students of amenities or services that are not of an academic nature; or

(c) fees payable in respect of residential accommodation; or

(d) fees of a kind that are incidental to studies that may be undertaken at institutions and that the Minister has notified each institution to be fees of a kind to which this paragraph applies.

For the purposes of paragraph (b), the expression student has its ordinary meaning.

institution has the meaning given by section 4 (despite subsection (2) of this section).

listed professional occupation has the meaning given by section 98S.

non-award basis, in relation to enrolment in:

(a) a subject unit at an institution; or

(b) a course of instruction at an institution; or

(c) a tuition and training program at an institution;

means the basis that the completion of the unit, course or program will not lead to the granting of a degree, diploma, associate diploma or other award of the institution.

occupation has a meaning affected by section 98Q.

relevant assessing body, in relation to a listed professional occupation, has the meaning given by section 98S.

requirements for entry to a listed professional occupation has the meaning given by section 98R.

semester has a meaning affected by subsection (4).

student means:

(a) a person who proposes to undertake on or after 1 July 2002, or is undertaking or has undertaken on or after that date, a BOTP course at an institution; and

(b) when used in relation to a particular BOTP course at an institution—a person who proposes to undertake on or after 1 July 2002, or is undertaking or has undertaken on or after that date, the BOTP course at that institution.

student load has a meaning affected by subsection (3).

study period, in relation to a BOTP course, means:

(a) in the case of a BOTP course that is covered by subsection 98U(1)—a semester; or

(b) in the case of a BOTP course that is covered by subsection 98U(2) and that consists of 2 or more courses of instruction—a period during which such a course of instruction is undertaken; or

(c) in any other case—the period during which the course is undertaken.

subject unit, in relation to an institution, means a subject unit that is ordinarily offered by the institution as part of a course of study at the institution, but that is also offered, on a non-award basis, to persons who are not undertaking that course of study.

Expressions defined in Chapter 4

(2) Expressions used in this Chapter that are defined in Chapter 4 have in this Chapter, unless the contrary intention appears, the same meanings as in Chapter 4.

Student load

(3) For the purposes of subsection (2), section 36 applies in relation to the expression student load in this Chapter in the same way as it applies in relation to that expression in Chapter 4, as if:

(a) the references in section 36 to student were references to student within the meaning of Chapter 4B; and

(b) the references in section 36 to institution were references to institution within the meaning of Chapter 4B; and

(c) the references in section 36 to course of study were references to subject unit, course of instruction or tuition and training program.

Semester

(4) For the purposes of subsection (2), section 37 applies in relation to the expression semester in this Chapter in the same way as it applies in relation to that expression in Chapter 4, as if:

(a) the references in section 37 to institution were references to institution within the meaning of Chapter 4B; and

(b) the references in section 37 to course of study were references to subject unit.

Expressions defined in the Income Tax Assessment Act 1936

(5) Expressions used in this Chapter that are defined in the Income Tax Assessment Act 1936 have in this Chapter, unless the contrary intention appears, the same meanings as in that Act.

Payment by a person other than a student

(6) For the purposes of this Chapter, the payment of an amount to an institution by a person other than a student in respect of fees payable by the student to the institution is taken to constitute payment of that amount to the institution by the student.

Course or program provided on behalf of an institution

(7) For the purposes of this Chapter:

(a) a course of instruction provided on behalf of an institution is taken to be provided at the institution, and a person enrolled in such a course is taken to be enrolled at the institution; and

(b) a tuition and training program provided on behalf of an institution is taken to be provided at the institution, and a person enrolled in such a program is taken to be enrolled at the institution.

98Q Occupation

Part of an occupation

(1) The Minister may determine that, for the purposes of this Chapter, a specified part of an occupation is an occupation in its own right.

Note 1: A determination under this subsection is to be in writing—see subsection 9(1).

Note 2: A determination under this subsection is a disallowable instrument—see paragraph 110(b).

(2) The following are examples of ways in which a part of an occupation can be specified:

(a) so much of an occupation as has a Bachelor degree (or equivalent) entry requirement;

(b) so much of an occupation as consists of a particular specialisation.

(3) A determination under subsection (1) has effect accordingly.

(4) A copy of a determination under subsection (1) is to be:

(a) published in the Gazette; and

(b) made available on the Internet.

98R Requirements for entry to occupation

(1) A reference in this Chapter to the requirements for entry to a listed professional occupation is a reference to the educational requirements for entry to that occupation, but does not include a reference to:

(a) English language training relating to general aspects of written and/or verbal communication; or

(b) being successful in:

(i) the Occupational English Test administered by Language Australia; or

(ii) any other English language test, where that test does not form an integral part of an occupation-related study unit, an occupation-related course of instruction or an occupation-related tuition and training program.

(2) For the purposes of this Chapter, a requirement for entry to a listed professional occupation may:

(a) be imposed by or under a law; or

(b) be imposed by or under the rules of a body; or

(c) consist of eligibility for membership of a body; or

(d) arise as a generally accepted employment or industry practice.

98S Listed professional occupations and relevant assessing bodies

(1) The Minister may determine that, for the purposes of this Chapter:

(a) a specified occupation is a listed professional occupation; and

(b) a specified person or body is a relevant assessing body for a particular listed professional occupation.

Note 1: A determination under this subsection is to be in writing—see subsection 9(1).

Note 2: A determination under this subsection is a disallowable instrument—see paragraph 110(b).

(2) A determination under subsection (1) has effect accordingly.

(3) A copy of a determination under subsection (1) is to be:

(a) published in the Gazette; and

(b) made available on the Internet.

(4) To avoid doubt, an occupation may be specified even if it is not one of the traditional professions.

(5) This section does not prevent 2 or more persons or bodies from being relevant assessing bodies for the same listed professional occupation.

(6) The specification of a person or body as a relevant assessing body for a particular listed professional occupation may be expressed to be limited to a particular State. In that event, sections 98T and 98U have effect, in relation to the relevant assessing body, as if each reference in those sections to Australia were, by express provision, confined to so much of Australia as consists of that State.

98T Assessment statement given by relevant assessing body

Post-commencement assessment statement

(1) If:

(a) a person holds a qualification awarded in a foreign country; and

(b) the qualification relates to a listed professional occupation; and

(c) the person proposes to seek entry to that occupation in Australia;

a relevant assessing body for that occupation may give the person a written statement to the effect that, in the opinion of the body, if the person were to do any or all of the following:

(d) successfully undertake additional studies of a kind specified in the statement;

(e) be successful in one or more examinations specified in the statement;

(f) successfully undertake a tuition and training program of a kind specified in the statement;

the person would meet the requirements for entry to that occupation in Australia.

Note: A statement could specify one of the things mentioned in paragraph (d), (e) or (f) or any combination of the things mentioned in those paragraphs.

(2) A statement under subsection (1) is an assessment statement for the purposes of this Chapter.

(3) This section does not affect the power of a relevant assessing body to charge fees for an assessment statement under subsection (1).

Pre-commencement assessment statement

(4) If, at a time before the commencement of this section:

(a) a person held a qualification awarded in a foreign country; and

(b) the qualification related to a listed professional occupation; and

(c) the person proposed to seek entry to that occupation in Australia; and

(d) a relevant assessing body for that occupation gave the person a written statement to the effect that, in the opinion of the body, if the person were to do any or all of the following:

(i) successfully undertake additional studies of a kind specified in the statement;

(ii) be successful in one or more examinations specified in the statement;

(iii) successfully undertake a tuition and training program of a kind specified in the statement;

the person would meet the requirements for entry to that occupation in Australia;

the statement is an assessment statement for the purposes of this Chapter.

Note: A statement could specify one of the things mentioned in subparagraph (d)(i), (ii) or (iii) or any combination of the things mentioned in those subparagraphs.

(5) For the purposes of subsection (4), assume that the first set of determinations under subsections 98Q(1) and 98S(1) had been in force at the time mentioned in subsection (4) of this section.

98U BOTP course

Subject units

(1) For the purposes of this Chapter, if:

(a) a person holds an assessment statement issued by a relevant assessing body for a listed professional occupation; and

(b) the statement is to the effect that, in the opinion of the body, if the person were to successfully undertake additional studies of a kind specified in the statement, the person would meet the requirements for entry to that occupation in Australia; and

(c) the person undertakes, or proposes to undertake, those additional studies by enrolling, or proposing to enrol, on a non-award basis, in one or more subject units at an institution; and

(d) the total student load imposed on the person in relation to those subject units does not exceed the institution’s maximum BOTP student load determined under subsection (4);

then:

(e) those subject units are together a BOTP course in relation to the person; and

(f) that BOTP course relates to the assessment statement.

Courses of instruction

(2) For the purposes of this Chapter, if:

(a) a person holds an assessment statement issued by a relevant assessing body for a listed professional occupation; and

(b) the statement is to the effect that, in the opinion of the body, if the person were to be successful in one or more examinations specified in the statement, the person would meet the requirements for entry to that occupation in Australia; and

(c) the person prepares, or proposes to prepare, for those examinations by enrolling, or proposing to enrol, on a non-award basis, in one or more occupation-related courses of instruction provided by or on behalf of an institution; and

(d) the total student load imposed on the person in relation to those courses does not exceed the institution’s maximum BOTP student load determined under subsection (4);

then:

(e) those courses are together a BOTP course in relation to the person; and.

(f) that BOTP course relates to the assessment statement.

Tuition and training program

(3) For the purposes of this Chapter, if:

(a) a person holds an assessment statement issued by a relevant assessing body for a listed professional occupation; and

(b) the statement is to the effect that, in the opinion of the body, if the person were to undertake a tuition and training program of a kind specified in the statement, the person would meet the requirements for entry to that occupation in Australia; and

(c) the person undertakes, or proposes to undertake, such a program by enrolling, or proposing to enrol, on a non-award basis, in a tuition and training program provided by or on behalf of an institution; and

(d) the total student load imposed on the person in relation to that program does not exceed the institution’s maximum BOTP student load determined under subsection (4);

then:

(e) that program is a BOTP course in relation to the person; and

(f) that BOTP course relates to the assessment statement.

Maximum BOTP student load

(4) For the purposes of this section, the maximum BOTP student load for an institution is the student load determined by the institution, in accordance with guidelines issued by the Minister, to represent:

(a) the load imposed on a full-time student for one year; or

(b) the part-time equivalent of that load.

Repeats

(5) For the purposes of this section, the total student load imposed on a person is to be worked out on the assumption that the person will not be required to repeat anything.

(6) Subsection (5) does not, by implication, affect the meaning of the expression student load in a provision of this Act other than this section.

98V Citizenship/residency requirements

For the purposes of this Chapter, a person meets the citizenship/residency requirements at a particular time if, at that time, the person is ordinarily resident in Australia and is:

(a) an Australian citizen; or

(b) a person who has been granted a certificate of Australian citizenship under section 13 of the Australian Citizenship Act 1948 and who has yet to make the pledge referred to in section 15 of that Act; or

(c) a person who is a permanent resident.

Part 4B.2—Additional condition of grant of financial assistance

98W Additional condition

(1) In addition to the conditions specified in any other provision of this Act, financial assistance is granted to an institution on the condition that the institution complies with the requirements of this Chapter.

(2) Without limiting subsection (1), the following provisions of this Chapter do not of their own force require an institution to do any act or thing.

Part 4B.3—Applications for, and grants of, BOTP loans

Division 1—Application for BOTP loan

98X Making an application for a BOTP loan

(1) A person may make an application for a BOTP loan if:

(a) the person holds an assessment statement issued by a relevant assessing body for a listed professional occupation; and

(b) the person has enrolled in, or proposes to enrol in, a BOTP course for a study period at an institution; and

(c) the BOTP course relates to the assessment statement; and

(d) the study period began on or after 1 July 2002.

(2) The application must be made on or before the census date for the BOTP course for the study period.

(3) The application must state that the applicant asks the Commonwealth, in the event that, on the census date for the BOTP course for the study period, the applicant:

(a) meets the citizenship/residency requirements; and

(b) is enrolled in the BOTP course for the study period at the institution; and

(c) has not paid the full amount of the fees charged by the institution for so much of the BOTP course as is being undertaken by the applicant for the study period;

to lend to the applicant the amount of those fees outstanding and to use the amount so lent to pay the fees outstanding on behalf of the applicant.

(4) The application must also acknowledge that, if the Commonwealth complies with the request, the applicant will be liable to make payments under Chapter 5A.

(5) The application must be:

(a) in the approved form; and

(b) signed by the applicant; and

(c) given to an appropriate officer of the institution.

(6) Two or more applications may be set out in the same document if the applications are made by the same person and relate to the same BOTP course.

98Y Tax file number of student

Sections 41A, 41B, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52 and 53 apply in relation to the tax file number of a student as if:

(a) any references in those sections to student were references to student within the meaning of Chapter 4B; and

(b) any reference in those sections to semester were references to study period within the meaning of Chapter 4B; and

(c) the references in paragraphs 41A(1)(a) and 41B(1)(a) to a contributing student were references to a student within the meaning of Chapter 4B; and

(d) the references in paragraphs 41A(1)(a) and 41B(1)(a) to giving a document as mentioned in paragraph 41(1)(b) or (1A)(c) were references to making an application under section 98X; and

(e) the references in paragraph 41A(1)(b), subsection 41A(2) and paragraph 41B(1)(b) to the document were references to the application; and

(f) the reference in paragraph 41B(1)(a) to a designated course of study were a reference to a BOTP course; and

(g) the references in subsection 50(4), paragraph 52(1A)(a) and subsection 53(1A) to this Chapter were references to Chapter 4B.

98Z Notice by institution

(1) An institution must give a written notice under this subsection to each student who:

(a) is enrolled in a BOTP course at the institution on the census date for that course for a study period; and

(b) has made an application under section 98X for a BOTP loan on or before the census date for that course for that study period.

(2) The notice must:

(a) set out particulars of so much of that course as is being undertaken by the student for that study period; and

(b) specify the full amount of the fees charged by the institution for so much of that course as is being undertaken by the student for that study period; and

(c) specify the amount of those fees that has been paid by the student on or before the census date for that course for that study period; and

(d) specify the amount of those fees outstanding in respect of the student immediately after the census date for that course for that study period.

(3) A notice to a student under subsection (1) in relation to a study period must be given on or before a date specified by the Minister by notice published in the Gazette in relation to that study period for the purposes of this section.

(4) If, after giving a notice to a student under subsection (1) or this subsection, the institution is satisfied that a material particular in the notice was not, or has ceased to be, correct, the institution must give a further written notice to the student setting out the correct particular.

(5) A notice under this section is given for the purpose only of providing information to a student, and the liability of a student to pay fees charged by the institution is not affected:

(a) if the institution fails to give a notice or to give a notice by the specified date; or

(b) if there is an incorrect statement in the notice.

(6) A notice under this section must set out the effect of subsections 55(1) and (2), as applied in relation to the notice by subsection (7).

(7) Section 55 applies in relation to a notice under this section as if:

(a) any references in that section to student were references to student within the meaning of Chapter 4B; and

(b) the references in subsections 55(1) and (4) to section 54 were references to section 98Z; and

(c) the reference in subsection 55(3) to the liability of the student to pay the contribution were a reference to the liability of the student to pay fees charged by the institution; and

(d) the reference in subsection 55(4) to subsection 54(3) were a reference to subsection 98Z(4).

Division 2—Discharge by the Commonwealth of students’ liability for fees

98ZA Commonwealth to discharge students’ liabilities

(1) This section operates if a student:

(a) has made an application under section 98X for a BOTP loan before the census date for a BOTP course for a study period that began on or after 1 July 2002, being the course specified in the application; and

(b) meets the citizenship/residency requirements on the census date for that course for that study period; and

(c) is enrolled in the BOTP course on the census date for that course for that study period; and

(d) has not, on or before the census date for that course for that study period, paid the full amount of the fees charged by the institution concerned for so much of that course as is being undertaken by the student for that study period.

(2) The Commonwealth must, as a benefit to the student:

(a) lend to the student an amount equal to the amount of the fees outstanding immediately after the census date; and

(b) apply the amount so lent in making a payment to the institution in discharge of the student’s liability to pay the amount of the fees outstanding.

(3) The Commonwealth may make advances to the institution on account of an amount that is expected to become payable by the Commonwealth to the institution under this section.

98ZB Commonwealth not liable where person does not have a tax file number

(1) This section operates if:

(a) the institution receives notice under subsection 42(3) or (5) as applied by section 98Y to the effect that a person who has made an application under section 98X for a BOTP loan does not have, or no longer has, a tax file number; and

(b) at the end of 28 days after the institution receives that notice, the institution has not been notified of a number that the institution is satisfied (in accordance with guidelines issued by the Commissioner) is the person’s tax file number.

(2) The Commonwealth is not liable, and is taken never to have been liable:

(a) to lend an amount to the person under paragraph 98ZA(2)(a); or

(b) to apply any amount in making a payment to the institution under paragraph 98ZA(2)(b) in discharge of a liability of the person.

(3) The regulations may set out procedures for the institution to notify persons who may be affected by subsection (2).

98ZC Institution to provide information to Minister

An institution must give to the Minister, if and when required by the Minister to do so, any statistical and other information about students in relation to BOTP courses (not being information as to the name or address of a student) that the Minister reasonably requires for the purposes of this Part.

Part 4B.4—Miscellaneous

98ZD Secrecy

Section 78 has effect in relation to information disclosed or obtained under, or for the purposes of, this Chapter as if that section were included in this Chapter.

98ZE Annual statement

The chief executive officer of an institution must give to the Minister, on or before 31 December in each year, a statement:

(a) as to whether the institution has complied with the requirements of this Chapter in respect of the year ending on that 31 December; and

(b) if the institution has not complied with such a requirement in respect of that year—setting out particulars of the non-compliance.

98ZF Electronic communications between students and institutions

(1) Sections 56C, 56D and 56E apply for the purposes of this Chapter as if a reference in those sections to a person, thing or provision mentioned in the second column of an item of the table were a reference to the person, thing or provision mentioned in the third column of the item.