Tuition Protection (Up-front Payments Guidelines) (Levy Waiver) Amendment 2021

Administered by Department of Education

Legislation au F2021L01901 Not in force Legislative Instrument

Legislation content

EXPLANATORY STATEMENT

 

Tertiary Education Quality and Standards Agency Act 2011

 

Tuition Protection (Up-front Payment Guidelines) (Levy Waiver) Amendment 2021

 

Authority

 

Section 26B of the Tertiary Education Quality and Standards Agency Act 2011 (the Act) provides that the Minister may make Up-front Payments Guidelines providing for matters required or permitted by the Act or the Higher Education Support Act, or necessary or convenient to be provided in order to carry out or give effect to Part 5A of the Act or Part 5-1B of the Higher Education Support Act 2003.

 

Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument. The amendments to the Tuition Protection (Up-front Payments Guidelines) 2020 (the Principal Instrument) made by this instrument rely on this provision.

 

Legislative background

 

Part 5A of the Act establishes tuition protection for students at registered higher education providers which aims to ensure domestic students who pay upfront for their higher education courses are protected and supported in the event of a provider default – that is, where the student has not withdrawn from a unit of study and either the provider fails to start to provide a unit of study to the student on the day on which the unit was scheduled to start, or the provider ceases to provide a unit of study to the student on a day after the unit starts but before it is completed.

 

Part 5A of the Act applies to higher education providers other than Table A providers (i.e. public universities) and higher education providers that are government owned, or established under specified legislation.

 

Tuition protection is administered by the Higher Education Tuition Protection Director (the Director), who is supported by the Higher Education Tuition Protection Fund Advisory Board (the Board). The Director is responsible for managing the Higher Education Tuition Protection Fund (the Fund). The Higher Education (Up-front Payments Tuition Protection Levy) Act 2020 requires leviable providers to contribute to the up-front payments tuition protection levy (the Levy) an amount commensurate with their size and risk. This amount is credited to the Fund and used to make payments in relation to the arrangements to support affected students, and for the remuneration and allowances of the Director and the Board.

 

Purpose and operation

 

The purpose of the Tuition Protection (Up-front Payment Guidelines) (Levy Waiver) Amendment 2021 (the Amendment Instrument) is to amend the Principal Instrument to provide for a waiver of the payment of the Levy for all registered higher education providers for the 2021 calendar year.

 

Paragraph 26A(5)(f) of the Act allows for the Principal Instrument to make provision for the refund, remission or waiver of the Levy or penalties for late payment. The Amendment Instrument inserts a new section 8 into the Principal Instrument to waive the payment of the Levy for all higher education providers for the 2021 calendar year. The waiver of the Levy for 2021 will support providers at a time when they are dealing with the financial impact of the COVID-19 pandemic.

 

Commencement

 

The Amendment Instrument commences on the day after the Amendment Instrument is registered on the Federal Register of Legislation.

 

Regulatory Impact Statement

 

The Office of Best Practice regulation has been consulted and advised that a Regulatory Impact Statement is not required for the Amendment Instrument due to the minor regulatory impact of the proposed changes (OBPR ID: 42730).

 

Financial Impact Statement

 

The Amendment Instrument will result in reduced taxation revenue for the Fund of approximately $1.1 million in 2021-22, due to the non-collection of the Levy for 2021.

 

Impact on underlying cash ($ millions)

 

2021–22

2022–23

2023-24

2024-25

Total

HELP Tuition Protection Levy Waiver

-1.1

0.0

0.0

0.0

-1.1

 

 

Consultation

 

No public consultation was undertaken in relation to the Amendment Instrument. Higher education providers are aware of the proposed Levy settings and expected collection, due to the consultation undertaken by the Director earlier in 2021. While no adverse responses were received on the 2021 Levy collection during this consultation, the higher education sector has noted the financial challenges it has experienced as a result of the ongoing COVID-19 pandemic. In response, the amendments are a temporary measure for the sector, that are part of the Australian Government’s economic response to the COVID-19 pandemic and provide a benefit to higher education providers at a time of economic uncertainty. It is on this basis and having regard to the beneficial nature of these measures, that no public consultation was undertaken.


Detailed explanation of the Tuition Protection (Up-front Payment Guidelines) (Levy Waiver) Amendment 2021
 

Section 1 – Name

This section provides that the title of the Amendment Instrument is the Tuition Protection (Up-front Payment Guidelines) (Levy Waiver) Amendment 2021 (the Amendment Instrument).

Section 2 – Commencement

This section provides that the Amendment Instrument will commence the day after the Amendment Instrument has been registered on the Federal Register of Legislation.

Section 3 – Authority

This section provides that the Amendment Instrument is made under section 26B of the Tertiary Education Quality and Standards Agency Act 2011.

Section 4 – Schedule

This section provides that the Tuition Protection (Up-front Payments Guidelines) 2020 are amended according to the terms set out in the Schedule.

Schedule 1—Amendments

Item 1 – Section 8

This item repeals the existing section 8, and substitutes a new section 8 which provides that payment of the up-front payments tuition protection levy is waived for all higher education providers for the 2021 calendar year, and provides that liability to pay the up-front payments tuition protection levy for a year is waived if the provider’s registration is cancelled under the Act, or if the provider is no longer in operation, prior to the time the Higher Education Tuition Protection Director issues a notice under section 6.


 

Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Tuition Protection (Up-front Payment Guidelines) (Levy Waiver) Amendment 2021
 

The Tuition Protection (Up-front Payment Guidelines) (Levy Waiver) Amendment 2021 (the Amendment Instrument) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the Legislative Instrument

 

The Amendment Instrument amends the Tuition Protection (Up-front Payments Guidelines) 2020 (the Principal Instrument) to provide for a waiver of the payment of the Levy for all registered higher education providers for the 2021 calendar year.

 

Human rights implications

 

The Amendment Instrument engages the right to education contained in Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the right to work contained in Article 6 of the ICESCR.

 

Right to education

The Amendment Instrument supports the right to education, under Article 13 of ICESCR. Article 13(2)(c) of the ICESCR provides that higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education.

The Amendment Instrument supports the right to education as the amendment assists registered higher education providers at a time of economic uncertainty. The amendment will give providers financial relief during difficult economic circumstances so that they will be able to continue operating and delivering quality education courses to students now and in the future.

The Amendment Instrument supports the right to education.

Right to work

The Amendment Instrument supports the right to work, under Article 6 of ICESCR. Article 6(1) of the ICESCR provides that State Parties to the ICESCR are required to recognise the right to work, which includes the right of everyone to the opportunity to gain their living by work which they freely choose or accept. Article 6(2) of the ICESCR provides that the steps to be taken by a State Party to achieve the full realisation of this right include providing technical and vocational guidance and training programs.

The Amendment Instrument supports the right to work as the Amendment Instrument gives registered higher education providers financial relief during difficult economic circumstances caused by the COVID-19 pandemic, which will assist providers in continuing to deliver courses to students now and in the future. In turn, this measure will support providers to maintain their workforce and support students to undertake study that will best prepare them to enter the workforce.

The Amendment Instrument supports the right to work.
 

Conclusion

 

This Amendment Instrument is compatible with human rights because it promotes the right to education and the right to work.

 

Minister for Employment, Workforce, Skills, Small and Family Business

The Hon Stuart Robert MP

 

Overview

The Tertiary Education Quality and Standards Agency Act 2011 was enacted by the Parliament of Australia to establish the Tertiary Education Quality and Standards Agency (TEQSA) and to provide for its functions, powers, and operations. This Act addresses the need for a national quality and standards agency to oversee and regulate the higher education sector in Australia, ensuring that the quality of educational services provided by higher education providers is maintained and improved. The policy objective of the Act is to safeguard the interests of students by ensuring that higher education providers meet specified quality standards, thereby enhancing the reliability and credibility of the higher education system. The Tuition Protection (Up-front Payment Guidelines) (Levy Waiver) Amendment 2021, made under section 26B of the Tertiary Education Quality and Standards Agency Act 2011, introduces temporary measures to provide relief to higher education providers affected by the COVID-19 pandemic. Specifically, the Amendment waives the payment of the up-front payments tuition protection levy for all registered higher education providers for the 2021 calendar year. This waiver aims to alleviate financial pressures on providers, ensuring they can continue to deliver quality education and maintain their workforce during a period of economic uncertainty. The measure is part of the Australian Government’s broader economic response to the pandemic, supporting the ongoing accessibility and availability of higher education services.

Scope and Application

The Tuition Protection (Up-front Payment Guidelines) (Levy Waiver) Amendment 2021 amends the Tuition Protection (Up-front Payments Guidelines) 2020 to provide a waiver of the payment of the up-front payments tuition protection levy for all registered higher education providers for the 2021 calendar year. This waiver is a measure in response to the financial impact of the COVID-19 pandemic on higher education providers. The amendment applies to all higher education providers who are required to make up-front payments tuition protection levy contributions, excluding public universities and government-owned or specified legislation-established providers. This legislative instrument is made under section 26B of the Tertiary Education Quality and Standards Agency Act 2011 and is compatible with human rights, specifically supporting the right to education and the right to work as outlined in the International Covenant on Economic, Social and Cultural Rights. The Amendment Instrument is a temporary measure designed to provide financial relief to higher education providers, thereby ensuring the continued delivery of quality education and support to students. The Amendment Instrument commences on the day after it is registered on the Federal Register of Legislation. The amendment results in reduced taxation revenue for the Higher Education Tuition Protection Fund of approximately $1.1 million in 2021-22 due to the non-collection of the Levy for 2021. Given the economic challenges posed by the COVID-19 pandemic and the anticipated benefit to higher education providers, no public consultation was undertaken. The Office of Best Practice Regulation advised that a Regulatory Impact Statement was not required for the proposed changes. The amendment is part of the Australian Government’s economic response to the pandemic, aiming to support the stability and continuity of higher education services.

Key Provisions

The main operative sections of the Tuition Protection (Up-front Payment Guidelines) (Levy Waiver) Amendment 2021 (the Amendment Instrument) are primarily focused on providing a waiver of the payment of the up-front payments tuition protection levy for all registered higher education providers for the 2021 calendar year (Schedule 1, Item 1). This waiver is intended to offer financial relief to higher education providers who are experiencing economic challenges due to the COVID-19 pandemic. Section 1 names the Amendment Instrument, Section 2 specifies its commencement date, and Section 3 identifies the authority under which it is made, namely section 26B of the Tertiary Education Quality and Standards Agency Act 2011. The Amendment Instrument imposes obligations on registered higher education providers by waiving their liability to pay the up-front payments tuition protection levy for the 2021 calendar year. This waiver is intended to alleviate financial pressure on providers during the pandemic, ensuring they can continue to operate and deliver quality education to students. Additionally, liability to pay the levy is also waived if a provider's registration is cancelled under the Act, or if the provider ceases operation before the Higher Education Tuition Protection Director issues a notice under section 6. There are no specific offences, penalties, or civil/criminal consequences mentioned in the Amendment Instrument for breach of its provisions. However, the financial impact of the waiver is noted, with an estimated reduction in taxation revenue for the Higher Education Tuition Protection Fund of approximately $1.1 million in 2021-22 due to the non-collection of the levy for 2021. The legislative changes are a temporary measure intended to support higher education providers during the economic uncertainty caused by the COVID-19 pandemic. Given the nature of the waiver as a supportive measure rather than a regulatory compliance requirement, the primary consequence of not adhering to the terms of the Amendment Instrument would be the failure to benefit from the financial relief intended for the higher education sector during this period of economic difficulty. The absence of explicit penalties or consequences in the Amendment Instrument suggests that its primary aim is to provide economic relief and support the continuation of education services rather than enforce compliance through punitive measures.

Legal classification tags

Area of Law
Education Law
Instrument
Regulation
Concepts
Definitions & Interpretation
Offence Provisions
Licensing & Registration

Interactions

Authorises

All Versions

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.