Bills Digest No. 29, 2020–21
PDF version [370KB]
Dr Hazel Ferguson
Social Policy Section
27
November 2020
Contents
Purpose of the Bill
Background: student loans for VET
Committee consideration
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Key issues and provisions: winding up
VET FEE-HELP
Other issues and provisions
Concluding comments
Date introduced: 12
November 2020
House: The Senate
Portfolio: Education,
Skills and Employment
Commencement: The
day after Royal Assent—except Schedule 1, Part 2, which commences on 1 July
2021.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at November 2020.
Purpose of
the Bill
The primary purpose of the VET
Student Payment Arrangements (Miscellaneous Amendments) Bill 2020 (the
Bill) is to amend the Higher Education
Support Act 2003 (HESA) to provide for the final winding
up of the former VET FEE-HELP scheme by:
- introducing
an end point for student and Australian Government liabilities associated with
VET FEE-HELP, by imposing a deadline on provider reporting
- allowing
provider debts to the Commonwealth associated with VET FEE-HELP to be recovered
by offsetting them against FEE-HELP or VET
Student Loans (VSL) payments and
- providing
for revocation of any remaining VET FEE-HELP provider approvals on 1 July 2021.
The Bill also proposes minor amendments to the
administrative arrangements for VSL under the VET Student Loans
Act 2016 (VSL Act) to:
- clarify
that VSL is not required to be paid to a provider in certain instances where a
student’s debt would be cancelled and the provider would be required to repay
the amount and
- automatically
revoke the approval of a provider to offer VSL if that provider ceases to be
registered to provide VET.
Background:
student loans for VET
Between 2008 and 2016, VET FEE-HELP operated under
Schedule 1A of HESA as part of the Higher Education Loan Program (HELP).[1] Like the longer-running higher education student loan sub‑schemes HECS-HELP and FEE-HELP, it
allowed students to defer eligible course costs and repay the debt through the
Australian Taxation Office (ATO) once their income reached a minimum repayment
threshold.[2]
In 2017, VET
FEE-HELP was replaced by VSL under the VSL Act, with existing students
maintaining access to VET FEE-HELP until 31 December 2018 under grandfathering
provisions. The decision to cease providing VET FEE-HELP was in response to
ongoing concerns about widespread misuse of the program.[3] Substantial increases in students (from 5,262 to 272,000), course costs (from $4,000
to $14,000), and borrowings (from $26 million to $2.9 billion) from 2009
to 2015 had increasingly come to be understood as evidence of rorting, rather
than student demand due to improved participation in VET.[4] Commonly, this involved providers and their agents using inducements and
misinformation to encourage students to enrol in courses financed through VET
FEE-HELP—the program became a revenue stream for unscrupulous providers, while
some people who signed up for loans reported being told courses were free, or
that they would not have to pay the money back.[5] After a number of reforms to address these issues in 2015 and 2016, VSL was
introduced with tighter provider eligibility requirements and lending controls,
and so far appears less vulnerable to misuse than its predecessor. A 2019
evaluation of VSL found no evidence of the fraud and misconduct that had become
associated with VET FEE-HELP.[6]
The fallout from
VET FEE-HELP is still ongoing. At 30 June 2020, redress measures introduced under
the Higher
Education Support Amendment (VET FEE‑HELP
Student Protection) Act 2018 to deal with VET FEE-HELP debt incurred
through inappropriate conduct of VET providers, had been used by the Secretary
of the department (currently the Department of Education, Skills and
Employment, DESE) to remove $1.3 billion in VET FEE-HELP debts, with a further
$123 million recommended for removal by the VET Student Loans Ombudsman.[7] The amount of cancelled debt has now exceeded the Australian Government
Actuary’s June 2016 estimate that a total of $1.2 billion of VET FEE‑HELP
debts had been issued inappropriately in 2014 and 2015.[8]
It was hoped that the redress measures would be finalised
by the end of 2020.[9] However, in the 2020–21 Budget, $11.9 million over three years from 2020–21 was
provided to continue the measures.[10] At 30 June 2020, the VET Student Loans Ombudsman had 2,898 open VET FEE-HELP
complaints still requiring assessment.[11]
Committee
consideration
Senate Standing Committee for
Selection of Bills
At its meeting on 11
November 2020, the Senate Standing Committee for Selection of Bills deferred
consideration of the Bill until its next meeting.[12]
Senate
Standing Committee for the Scrutiny of Bills
At the time of writing, the Senate Standing Committee for the
Scrutiny of Bills had not yet considered the Bill.[13]
Policy
position of non-government parties/independents
At the time of writing, no non-government parties or independents
have expressed a position on the Bill.
Position of
major interest groups
At the time of writing, no major interest groups have
expressed a position on the Bill.
Financial implications
The Explanatory Memorandum states that ‘[t]he financial
impact of the legislative changes is immaterial on the fiscal balance over the
forward estimates.’[14]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed
the Bill’s compatibility with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[15]
Parliamentary
Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights had no
comment on the Bill.[16]
Key issues
and provisions: winding up VET FEE-HELP
Deadlines for final VET FEE-HELP payments
Currently, if an eligible student used VET FEE-HELP to
defer the cost of their VET tuition fees, clause 55 of Schedule 1A of HESA requires the Commonwealth to pay the VET provider on the student’s behalf.
Although VET FEE-HELP loans are no longer made to students, HESA does
not apply any time limits to the operation of clause 55, so providers may
continue to claim payments for the entire period VET FEE-HELP was operating.
Such a claim raises a payment liability for the Commonwealth and a HELP debt
for the student.[17]
Item 2 in Part 1 of the Bill amends clause 55 to
add reporting deadline provisions for providers, which will have
the effect of adding a time limit on Commonwealth and student VET FEE-HELP
liabilities. Under proposed subclause 55(5), the reporting deadline will be before 1 July 2021 for a unit with a census date before 1 January
2018, and before 1 January 2022 for any other unit. Proposed subclause 55(4) will discharge a student from any liability to pay or account for a VET tuition
fee if the Commonwealth does not pay the tuition costs to the provider as a
consequence of the provider missing the reporting deadline, removing the
possibility that providers will seek to recover unpaid amounts from former
students.
These amendments do not limit a person’s right to raise a
complaint about a former VET FEE-HELP provider, or place a time limit on
measures to cancel VET FEE-HELP debts.
Offsetting VET FEE-HELP debts against other student loan
payments
Currently, there are a number of different provisions in HESA and the VSL Act dealing with Commonwealth student loan payments to VET
providers, and payments by providers to the Commonwealth. However, there is no
legislative authority for the responsible department (currently DESE) to
reconcile payments and debts across different student loan schemes before
making a payment or raising a debt with a provider.
Items 3, 4, and 5 in Part 1 of the Bill amend
clause 61 and insert proposed clause 61A in Schedule 1A of HESA to
insert this authority. The provisions allow the Commonwealth to offset amounts
of FEE-HELP or VSL due to a VET provider against:
- a
debt resulting from an advance of VET FEE-HELP which exceeded the amount
ultimately due to the provider[18]
- a
debt resulting from a provider using an advance of VET FEE-HELP for a purpose
other than that for which it was given[19]
- any
other debt payable by a VET provider under Schedule 1A—this includes debts
incurred under clause 56 due to inappropriate conduct by a provider or a
provider’s agent resulting in a person’s HELP balance being re-credited in
relation to an amount of VET FEE-HELP.[20]
These provisions will not alter the final financial result
for providers or the Commonwealth, but will remove administrative duplication
where, for example, a VSL payment is made to a provider at the same time as a
VET FEE-HELP debt is raised, resulting in the
provider receiving Commonwealth money only to use it to repay a
Commonwealth debt. While these kinds of offsets are currently allowable
under HESA, they apply only within loan sub-schemes—this is no longer
appropriate for VET FEE-HELP, where in most cases payments to providers are no
longer being made due to the cessation of the program, and where all payments
will cease in 2022 as a consequence of the proposed reporting deadline
provisions discussed above.[21]
Revocation of remaining VET FEE-HELP provider approvals
Most providers registered to offer VET in Australia are
registered by the national regulator, the Australian
Skills Quality Authority (ASQA), under the National Vocational
Education and Training Regulator Act 2011 (NVETR Act).[22]
In order to offer student loans, a registered training
organisation (RTO) must apply to the department (currently DESE) for approval
under the VSL Act—for VET FEE-HELP, approval was previously dealt with
under Schedule 1A of HESA.[23]
Currently, the process for a VET provider ceasing to be
approved under HESA is dealt with in Division 5 of Part 1 of Schedule
1A. Reasons for revocation of approval include the provider ceasing to be
registered under the NVETR Act, and for breaching various requirements
under the Schedule.[24] Part 2 of the Bill proposes to repeal this Division, and replace it with proposed
clause 29 (inserted by item 14), which includes a general revocation
of all approvals still in force on 1 July 2021.[25] Any responsibilities or conditions imposed under HESA will continue to
operate. The savings provision at item 17 of Part 2 retains certain
requirements applied under Division 5 for any revocation of approval before 1
July 2021.
Other issues
and provisions
The Bill also inserts two new provisions into the VSL
Act.
Item 6 in Part 1 of the Bill amends section 20 of
the VSL Act, which deals with when the Secretary is not required to pay
VSL. Currently, this section deals only with instances where the loan itself
would not be legitimate, such as the student not meeting eligibility
requirements. Proposed paragraphs 20(h), (i) and (j) clarify that
VSL is also not required to be paid in instances where the loan would initially
be legitimate, but the student’s HELP balance would subsequently be re-credited
(to cancel the debt) under special circumstances arrangements, unacceptable
provider conduct arrangements, or Tuition Protection arrangements.[26] Such a re-credit would require the provider to repay the amount to the
Commonwealth.[27] Item 8 repeals and replaces Division 1 of Part 6 which deals with
re-crediting HELP balances. Within new Division 1, proposed section 67 clarifies that a student may apply for a re-credit prior to the amount being
used to pay their tuition fees.[28]
Item 7 in Part 1 of the Bill inserts proposed
section 35A, which would automatically revoke the approval of a provider to
offer VSL under the VSL Act if that provider ceases to be registered
under the NVETR Act. Currently, the Secretary may revoke or suspend
approval if they are satisfied the provider is not complying with the VSL Act,
or on the provider’s request. [29] Although suspension can be immediate if the Secretary is satisfied the
circumstances surrounding the provider’s non-compliance require urgent action,
generally suspension or revocation is subject to a notice period (14 days for
proposed suspension and 28 days for proposed revocation) during which time the
provider may make a written submission as to why the suspension or revocation
should not go ahead.[30] While proposed subsection 35A(4) requires the Secretary to notify the
body in writing of the automatic revocation, no notice period or submissions
process will be applied, except in relation to ASQA’s registration decisions
under the NVETR Act.
Concluding comments
The Bill proposes a number of relatively straightforward
measures designed to facilitate finalisation of VET FEE-HELP liabilities,
namely deadlines for final VET FEE-HELP payments, arrangements to allow VET
FEE-HELP debts to be offset against VSL and FEE-HELP payments, and revocation
of any remaining VET FEE-HELP provider approvals. It does not alter student
access to VSL, or redress measures for VET FEE-HELP.
[1]. The
scheme was established by the Higher Education
Support Amendment (Extending FEE-HELP for VET Diploma, Advanced Diploma,
Graduate Diploma and Graduate Certificate Courses) Act 2007, and discontinued
by the VET
Student Loans (Consequential Amendments and Transitional Provisions) Act 2016.
[2]. Higher Education Support
Act 2003 (HESA), Schedule 1A, Part 2.
[3]. J
Griffiths, VET
Student Loans Bill 2016 [and] VET Student Loans (Charges) Bill 2016 [and] VET
Student Loans (Consequential Amendments and Transitional Provisions) Bill 2016,
Bills digest, 41, 2016–17, Parliamentary Library, Canberra,
22 November 2016.
[4]. Department
of Education and Training (DET), Review of the
VET Student Loans course list and loan caps methodology, Discussion
paper, DET, Canberra, 2017, p. 6; S Bird (Shadow Minister for Vocational
Education), Government
must act to protect quality in the training sector, media release, 7
October 2014; S Bird (Shadow Minister for Vocational Education), Additional
action needed on quality in VET sector, media release, 9 October 2014.
[5]. M
Warburton, The
VET FEE-HELP debacle: helping its victims and lessons for administration,
LH Martin Institute, [Melbourne], December 2016; Griffiths, VET
Student Loans Bill 2016, op. cit.
[6]. KPMG, Evaluation
of the VET Student Loans program: final report, report to the
Department of Education, Skills and Employment (DESE), KPMG, [Australia],
December 2019, pp. 2, 10.
[7]. Commonwealth
Ombudsman, Quarterly
update 12: 1 April–30 June 2020, pp. 6–7; Further background about the
redress measures is available in H Ferguson, Higher
Education Support Amendment (VET FEE-HELP Student Protection) Bill 2018,
Bills digest, 39, 2018–19, Parliamentary Library, Canberra,
5 November 2018.
[8]. Australian
National Audit Office (ANAO), Administration
of the VET FEE-HELP scheme: Department of Education and Training, Australian
Skills Quality Authority, Australian Competition and Consumer Commission,
31, 2016–17, ANAO, Canberra, 2016, p. 7.
[9]. Explanatory
Memorandum, Higher Education Support Amendment (VET FEE-HELP Student
Protection) Bill 2018, p. 14.
[10]. Australian
Government, Budget
measures: budget paper no. 2: 2020–21, p. 81. Legislation is not
required to continue these arrangements, as, under subclause 46AA(9) of
Schedule 1A of HESA, the final date for re-crediting can be extended
beyond 31 December 2020 in the VET Guidelines, currently the Higher Education
Support (VET) Guideline 2015.
[11]. Commonwealth
Ombudsman, Quarterly
update 12, op. cit., p. 7.
[12]. Senate
Standing Committee for the Selection of Bills, Report,
10, 2020, The Senate, Canberra, 12 November 2020, [p. 4].
[13]. Senate
Standing Committee for the Scrutiny of Bills, Index
of Bills considered by the Committee, 20 November 2020.
[14]. Explanatory
Memorandum, VET Student Payment Arrangements (Miscellaneous Amendments)
Bill 2020, p. 2.
[15]. The
Statement of Compatibility with Human Rights can be found at pp. 3–4 of the Explanatory
Memorandum to the Bill.
[16]. Parliamentary
Joint Committee on Human Rights, Human
rights scrutiny report, 14 2020, 26 November 2020, p. 57.
[17]. HESA,
clause 55 of Schedule 1A and section 137-18.
[18]. HESA,
Schedule 1A, proposed paragraph 61(2)(aa) inserted by item 3 in
Part 1 of the Bill.
[19]. HESA,
Schedule 1A, proposed paragraph 61(3)(aa) inserted by item 4 in
Part 1 of the Bill.
[20]. HESA,
Schedule 1A, proposed clause 61A inserted by item 5 in
Part 1 of the Bill.
[21]. For
example, under subclause 61(2) of Schedule 1, if the provider incurs a debt to
the Commonwealth due to an advance that is greater than the amount of VET
FEE-HELP that is owed, the amount owing can be deducted from any other amount
of VET FEE-HELP payable under the Schedule.
[22]. All
states except Victoria and Western Australia have referred powers for VET
regulation to the Commonwealth, so providers based or offering training in the referring
states, or to overseas students, must register with ASQA. Providers only
offering courses in Victoria or Western Australia, and not intending to enrol
overseas students, do not need to register with ASQA. They can register with
their relevant state regulator instead (the Victorian
Registration and Qualifications Authority and the Western Australian Training Accreditation
Council). See Australian Skills Quality Authority (ASQA), ‘How
does an RTO in Western Australia or Victoria become registered with ASQA?’,
ASQA website.
[23]. This
approval is contingent on being a registered provider. See HESA,
Schedule 1A, paragraph 6(1)(c); VSL Act, para. 25(2)(d).
[24]. HESA,
Schedule 1A, clauses 29B, 33 and 33A.
[25]. HESA,
Schedule 1A, proposed clause 29 inserted by item 14 in Part 2 of
the Bill.
[26]. Under the VSL Act,
special circumstances apply under section 68 when a student faces circumstances
beyond their control that make their full impact after the census day, and make
it impracticable for the student to complete the requirements of the course. In
these circumstances, the provider must re-credit the student’s HELP balance. Unacceptable
provider conduct arrangements under section 71 apply in circumstances defined
in the VET Student
Loans Rules 2016, such as misleading, deceptive or coercive conduct on the
part of a provider. If unacceptable provider conduct occurs, the Secretary may re-credit
a student’s HELP balance. Tuition Protection arrangements in Part 5A apply when
a provider fails to provide a course as scheduled. Under section 66E, the
Tuition Protection Director re-credits the student’s HELP balance if the
student is not placed in a replacement course.
[27]. Under section 22 of the VSL
Act, a course provider must repay a loan amount to the Commonwealth if
special circumstances or unacceptable conduct resulted in a person’s HELP
balance being re-credited, while section 66H requires the provider to repay the
loan amount to the Commonwealth if Tuition Protection arrangements led to the
re-credit.
[28]. Explanatory
Memorandum, VET Student Payment Arrangements (Miscellaneous Amendments)
Bill 2020, p. 10.
[29]. VSL
Act, sections 36 and 38.
[30]. VSL
Act, sections 36 and 37.
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