Amendment No. 1 to the Administration Guidelines

Administered by Department of Education, Science and Training

Legislation au F2007L01375 Not in force Legislative Instrument

Legislation content

 

 

EXPLANATORY STATEMENT

 

Guidelines issued under subsection 238-10 of the Higher Education Support Act 2003

 

 

ADMINISTRATION GUIDELINES

 

Issued by the authority of the Minister for Education, Science and Training

 

Subject:  Higher Education Support Act 2003

   Amendment No. 1 to the Administration Guidelines

 

Authority

 

Section 238-10 of the Higher Education Support Act 2003 (the Act) provides that the Minister may make guidelines for the purposes of the Act.  In particular, section 238-10 specifies that the Minister may make Administration Guidelines to give effect to matters set out in Chapter 5 of the Act.

 

Division 174 in Part 5-3 of Chapter 5 of the Act provides that certain documents that are required or permitted to be given between students and higher education providers may be transmitted electronically. 

 

Division 174 of the Act was recently amended by the Higher Education Legislation Amendment (2006 Budget and Other Measures) Act 2006 which allowed the Act and the Administration Guidelines (made under the Act) to operate without the need for an exemption under the Electronic Transactions Act 1999.  The Act allows for the Administration Guidelines to specify requirements relating to electronic communication between higher education providers and students.

 

 

Background

 

  • The Administration Guidelines were registered and commenced on 13 September 2005. 

 

  • The Administration Guidelines are being amended as a result of the commencement of the Higher Education Legislation Amendment (2006 Budget and Other Measures) Act 2006 (No. 121, 2006).

 

 

Consultation

 

No consultation was undertaken with the sector as these amendments are not intended to alter the current arrangements for electronic communication between providers and students. 

 

 

Overview

 

Division 174 of the Act was recently amended by the Higher Education Legislation Amendment (2006 Budget and Other Measures) Act 2006 to provide for the operation of the Act without the need for an exemption under the Electronic Transactions Act 1999 (ETA).  Part 5-3 was amended to provide for the Administration Guidelines to set out requirements for the electronic communication of notices and documents. 

 

ETA provides that where a person is required or permitted to give information in writing to a Commonwealth entity, or an entity acting on the Commonwealth’s behalf, that requirement is fulfilled by an electronic communication of that information.

 

ETA also provides that exemptions from its provision may be granted to a law of the Commonwealth.  The Higher Education Funding Act 1988 (HEFA) was granted an exemption from the provisions of the ETA.  It was originally intended that the Act would operate with an exemption from the ETA.

 

The relevant subsections of the ETA (9(3), 10(2) and 11(4)) do not affect the operation of any other law of the Commonwealth that makes provision for or in relation to requiring or permitting the electronic communication of information in accordance with particular information technology requirements.  The Act and Administration Guidelines therefore, as a law of the Commonwealth, may make provision for the electronic communication of information.  Accordingly in November 2006, Division 174 of Part 5-3 of the Act was amended to provide for the Administration Guidelines to set out the requirements for the electronic transmission of information. 

 

Chapter 5 of the Administration Guidelines, Electronic Communication, has been deleted and replaced.  The new Chapter 5 gives effect to the changes to the Act passed in November 2006.  Minor consequential changes have been made to Chapter 1 Introduction.  

 

The effect of the amendments is that:

  • when higher education providers are receiving information or documents required or allowed under the Act electronically (including, where applicable, electronic signatures) they will need to comply with the provisions in paragraphs 5.5 and 5.10 of the Administration Guidelines; and
  • where notices or documents are to be given by higher education providers to students electronically, the information must be given in accordance with requirements in paragraph 5.5 of the Administration Guidelines.

 

 

Detail of the Amendments

 

Chapter 1

Chapter 1, Introduction, has been amended under the subheading Purpose to insert relevant information to describe the changed content of Chapter 5 of the Administration Guidelines. 

 

Chapter 5

Chapter 5, Electronic Communication, has been deleted and replaced with a new Chapter 5 which gives effect to changes to the Act passed in November 2006.  It contains the following details:

 

  • 5.5 sets out the Information technology requirements of electronic communication of notices or other documents required or permitted to be given pursuant to the Act;

 

  • 5.5.1 specifies requirements of the information system to communicate notices or documents electronically from students to higher education providers.  It includes details of the kinds of electronic communications and the requirements of the information system regarding accessibility, security, storage, unique identification where required and printable receipt verification;

 

  • 5.5.2 specifies requirements relating to the electronic communication of notices or other documents given by a higher education provider to a student.  It includes details of the kinds of electronic communications and provisions for students to be informed and given authority to use the system and for storage and accessibility of the notices or documents.

 

  • 5.10 sets out the requirements relating to methods higher education providers must put in place to be used by students to identify themselves and indicate their approval of documents.  This requires providers to ensure that where a student is enabled to provide a signed communication electronically that it must be done by a method that includes an identification that is unique to the student.

 

 

Commencement

 

These guidelines will commence on the day after the day on which they are registered on the Federal Register of Legislative Instruments.

 

Overview

The Higher Education Support Act 2003 (the Act) was enacted by the Australian Parliament to address the need for a robust and efficient system for supporting higher education in Australia. The Act established a framework for the provision of financial and other support to higher education students and institutions. One of the key amendments to the Act was the Higher Education Legislation Amendment (2006 Budget and Other Measures) Act 2006, which introduced changes to streamline the electronic communication between higher education providers and students, eliminating the need for an exemption under the Electronic Transactions Act 1999. These amendments are reflected in the Administration Guidelines issued by the Minister for Education, Science and Training under section 238-10 of the Act, which provide detailed requirements for the electronic transmission of notices and documents. The policy objective of these guidelines is to ensure that electronic communications meet certain information technology requirements, including accessibility, security, and verification, thereby enhancing the efficiency and effectiveness of interactions between students and higher education providers.

Scope and Application

The Administration Guidelines issued under the Higher Education Support Act 2003 (the Act) apply to higher education providers and students engaged in the provision and receipt of information and documents under the Act. This includes the transmission of notices and other documents required or permitted by the Act, with a particular focus on electronic communication. The guidelines delineate the information technology requirements for such electronic communications, ensuring compliance with specific accessibility, security, storage, and identification protocols. The jurisdictional reach of the Act and its associated guidelines is national, covering the entire Commonwealth of Australia. The guidelines do not specify any exclusions or exemptions, but they do establish thresholds and requirements for electronic communication, including the use of electronic signatures and the need for unique identification of students for signed communications. The Act extends its application through these guidelines, which detail the necessary steps for higher education providers to follow in ensuring that electronic communications meet the prescribed standards. These guidelines reflect recent legislative changes that eliminate the need for an exemption under the Electronic Transactions Act 1999, allowing the Act to operate without such an exemption, thereby facilitating smoother electronic transactions between higher education providers and students.

Key Provisions

The main operative sections of the Administration Guidelines, as amended, pertain to the electronic communication between higher education providers and students. Section 238-10 of the Higher Education Support Act 2003 (the Act) allows the Minister to make guidelines to implement the Act, particularly those related to electronic communication between students and providers, as set out in Division 174 of Part 5-3 of Chapter 5 of the Act. These guidelines were updated in response to amendments made by the Higher Education Legislation Amendment (2006 Budget and Other Measures) Act 2006, which removed the need for an exemption under the Electronic Transactions Act 1999 (ETA) for the operation of the Act and these guidelines. The updated guidelines now specify the requirements for electronic communication of notices and documents between higher education providers and students. The Administration Guidelines impose specific obligations on higher education providers regarding the electronic communication of information to and from students. According to paragraph 5.5, providers must comply with certain information technology requirements when receiving information electronically from students. This includes ensuring that the information system used for electronic communication meets accessibility, security, storage, unique identification, and printable receipt verification standards. Paragraph 5.5.1 details the requirements of the information system for communicating notices or documents electronically from students to providers, including the types of electronic communications permitted and the necessary system specifications. Paragraph 5.5.2 outlines the requirements for providers when sending notices or documents electronically to students, ensuring students are informed and have authority to use the system, and that the notices or documents are stored and accessible. Paragraph 5.10 further requires providers to implement methods for students to identify themselves and indicate their approval of documents electronically, ensuring that any signed communication includes a unique student identification. The Administration Guidelines do not explicitly detail offences, penalties, or civil/criminal consequences for breaches within the guidelines themselves. However, non-compliance with the requirements set out in the Administration Guidelines could potentially lead to legal consequences under the Higher Education Support Act 2003 or other relevant legislation. The specific penalties for non-compliance would depend on the nature and severity of the breach, and could include administrative, civil, or criminal sanctions. It is advisable for higher education providers to ensure strict adherence to the guidelines to avoid any potential legal repercussions.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.