Explanatory Statement

Very Remote HELP Debtor Guidelines 2019

Summary

The Very Remote HELP Debtor Guidelines 2019 (the Guidelines) put in place administrative provisions to support the operation of Division 142 of the Higher Education Support Act 2003 (HESA). In conjunction with Division 140, Division 142 of HESA provides for the reduction of the indexation of a person’s Higher Education Loan Program (HELP) debt if the person is a “very remote HELP debtor” during a year, and a partial or complete remission of that debt if the person is a very remote HELP debtor for four years. In particular, the Guidelines:

• set out how to work out the number of days in a year a person was a very remote HELP debtor, for the purposes of reducing the indexation of the person’s HELP debt; and
• set out how to work out the period of time that a person has been a very remote HELP debtor, for the purpose of determining their eligibility for a partial or complete remission of their HELP debt.

Background

Schedule 2 to the Education Legislation Amendment (2019 Measures No. 1) Act 2019 (ELA Act) amended HESA to introduce two measures to assist teachers working in schools in very remote locations in Australia to reduce the HELP debts they have incurred in studying their initial teacher education course. The amendments commence on 1 January 2020.

First, teachers working in schools in very remote locations will have the annual indexation of their HELP debt reduced.  Second, teachers who work for an equivalent of four years’ full-time in schools in very remote locations in Australia will have an amount, incurred for their recognised initial teacher education course, up to the value of their outstanding HELP debt at the commencement of their placement, fully remitted.

A school is defined in Schedule 2 to ELA Act to be an early childhood education and care service providing a preschool education program, a preschool, or a school providing primary or secondary education. Accordingly, these measures will assist teachers employed in very remote primary and secondary schools, as well as teachers employed in  very remote early childhood education settings.

The purpose of these measures is to assist schools in very remote locations of Australia to recruit and retain high quality teachers, thereby improving education outcomes for students in these very remote communities. It will also ensure that Indigenous communities in very remote locations of Australia have access to adequate school teacher services.

These measures are given effect by amendments to the provisions in Division 140 of HESA under which a person’s accumulated HELP debt is calculated at a particular time.  A new Division 142 of HESA sets out the mechanism by which eligibility for these measures is determined.

In order for a person to be eligible for reduction of the indexation of their accumulated HELP debt (which occurs on 1 June every year), a person must have been a “very remote HELP debtor” at some time during the previous calendar year.  The indexation of their HELP debt is reduced in proportion to the period of time in the previous year that the person was a very remote HELP debtor.

In order for a person to be eligible for remission of their HELP debt, the person must have been a very remote HELP debtor for 4 years, or periods adding up to 4 years within a continuous period of 6 years.

In determining the number of days in a year that a person as a very remote HELP debtor was working as a teacher in a very remote school, their employment contract and/or proof of work engagement documents from the person’s employer will be requested during the very remote HELP debtor application process. These documents will serve as evidence to demonstrate an applicant’s engagement as a teacher in a very remote school, and the period of that work engagement, in order to meet eligibility as a very remote HELP debtor.

The principal purpose of the Guidelines is to set out the way in which the periods of time that are relevant to a person’s eligibility as a very remote HELP debtor are worked out.

Consultation

Education Departments of the Australian State and Territory Governments, and the Australian Taxation Office were consulted in relation to these measures.    

Regulatory Impact Statement

The Office of Best Practice Regulation (OBPR) has been consulted. Based on their advice that the proposal does not appear to have a more than minor regulatory impact on business, community organisations or individuals, only a short form Regulation Impact Statement (RIS) was required (OBPR ID No. 24713). This short form RIS was completed and approved by OBPR.

Authority

The Guidelines are made under section 238-10 of HESA, as affected by section 4 of the Acts Interpretation Act 1901. Amongst other things, section 4 of the Acts Interpretation Act provides that a power in an Act to make an instrument of legislative character (such as the Guidelines) may be exercised prior to the commencement of that power, as if it had commenced. The amendment to section 238-10 of HESA made by the ELA Act that will empower the Minister to make the Guidelines will commence on 1 January 2020.

Explanation of Provisions

Division 1—Preliminary

Sections 1, 2 and 3

Sections 1, 2 and 3 of the Guidelines are formal provisions setting out the name, date of commencement, and authority for making of the Guidelines.

Section 4 – Definitions

Section 4 of the Guidelines sets out definitions for the purposes of the Guidelines.  In particular, the section defines a very remote school as a school located in an area that is classified as very remote Australia under the ABS Remoteness Structure, copying the language from paragraph 142-1(1)(a) of HESA.

Other terminology used in the Guidelines – for example, “school” and “ABS Remoteness Structure” – has the same meaning in the Guidelines as it does in HESA (see paragraph 13(1)(b) of the Legislation Act 2003).

Division 2—Very remote HELP debtors—reducing indexation

Section 5 – Purpose of Division

Paragraph 142-1(1)(a) of HESA provides that one of the criteria for a person to be a very remote HELP debtor on a day is that they carry out work as a teacher on that day at a very remote school. Section 5 of the Guidelines provides that the purpose of Division 2 of the Guidelines is to set out circumstances relevant to working out whether a person is a very remote HELP debtor on a day.

Section 6 – Days on which a person is a very remote HELP debtor – full-time and part-time teachers in very remote schools

Under new subsection 140-10(1A) of HESA, the indexation factor of a very remote HELP debtor’s former accumulated HELP debt is reduced by the proportion of the previous calendar (school) year that the person spent teaching in very remote schools.  Hence the number of days in that calendar year that the person spent teaching in very remote schools needs to be worked out, and is included in a determination by the Secretary under new subsection 142-10(2) of HESA.

To that end, section 6 of the Guidelines sets out how to work out the number of days that a person engaged as a full-time or part-time teacher was a very remote HELP debtor.

Subsections (1) and (2) deal with the circumstance where a person is engaged to work as a full-time or part-time teacher in very remote schools for a specified period, for example, a month, one or more school terms, or the whole school year, and during that period, they are also residing in a very remote location.

Subsection (1) provides that the person is taken to be carrying out work as a teacher at a very remote school for every day during the whole period of that engagement.

Subsection (2) makes it clear that the person can be taken to be carrying out work as a teacher at a very remote school on a day even if the day is not a day on which the person is actually carrying out work (such as a weekend, public holiday, leave day, or rostered day off), and even if the person is not physically located in a very remote location on the day (for example, because the person is travelling to or from a very remote location, is on leave outside a very remote location, or is undertaking professional duties, such as undertaking continuing professional training, at another location).

The purpose of subsections (1) and (2) is to ensure that where a full-time or part‑time teacher has been specifically engaged by an education authority to teach at one or more very remote schools for a defined period and, during that period, resides in a very remote location, that they obtain the benefit of HELP debt indexation reduction for every day they are so engaged, even if on particular days in that period they are not actually teaching in a very remote school.

Subsections (3) and (4) deal with the circumstance where a person is engaged to work as a full-time or part-time teacher in very remote schools (whether or not for a specified period) and, despite not ordinarily residing in a very remote location, is located in a very remote location because of that engagement.

Subsection (3) provides that the person is taken to be carrying out work as a teacher at a very remote school for every day during the period the person is located in a very remote location for the purpose of teaching in very remote schools.  Subsection (4) makes it clear that the person can be taken to be carrying out work as a teacher at a very remote school on a day even if the day is not a day on which the person is actually carrying out work (such as a weekend, public holiday, leave day, or rostered day off).

The purpose of subsections (3) and (4) is to ensure that where a full-time or part-time teacher has been engaged by an education authority to teach at one or more very remote schools temporarily, and in order to undertake that teaching, is located in a very remote location for a period, that they obtain the benefit of HELP debt indexation reduction for every day they are located in the very remote location, even if on particular days in that period they are not actually teaching in a very remote school.

Section 7 – Days on which a person is a very remote HELP debtor – casual teachers in very remote schools

Section 7 of the Guidelines sets out how to work out the number of days that a person engaged as a casual teacher was a very remote HELP debtor.  Subsections 7(1) and (2) operate in a similar fashion in relation to casual teachers as subsections 6(1) and (2) do in relation to full-time and part-time teachers.

In essence, each day that a casual teacher is located in a very remote location for the purposes of working in a very remote school (whether or not they actually work as a teacher on the day) is counted as a day that they are taken to carry out work as a teacher at a very remote school.

Division 3—Very remote HELP debtors—reducing HELP debts

Section 8 – Purpose of Division

Subparagraph 142-15(1)(a)(i) of HESA provides that one of the criteria for a person to have their accumulated HELP debt reduced is that the person has been a very remote HELP debtor for a period of 4 years, or for periods within a continuous 6 year period that total 4 years. Section 8 of the Guidelines provides that the purpose of Division 3 of the Guidelines is to set out circumstances relevant to working out whether a person has been a very remote HELP debtor for a period of 4 years, or for periods within a continuous 6 year period that total 4 years.

Section 9 – Period for which a person has been a very remote HELP debtor

Subsection 9(1) provides that a person has been a very remote HELP debtor for a period of 4 years, or for periods within a continuous 6 year period that total 4 years, at a time during a given year if the number of days that the person has been a very remote HELP debtor in the period of 6 continuous years ending before that year equals or exceeds 1460.

So, for example, at any time in 2025 a person will have been a very remote HELP debtor for a period of 4 years, or for periods within a continuous 6 year period that total 4 years, if in the period from 1 January 2019 to 31 December 2024 inclusive, the number of days the person was a very remote HELP debtor is at least 1460.

Subsection (2) provides that, in order to work out the number of days that a person was a very remote HELP debtor for the purposes of subsection (1), regard is to be had to the operation of Division 2 of the Guidelines.

However, under section 6 (in Division 2), a part-time teacher is taken to have been a very remote HELP debtor on each day in a period that they were resident or located in a very remote location, whether or not they were teaching on the day.  Nevertheless, subsection 9(3) states that, in working out the number of days that contribute to a part-time teacher’s total of days for the purposes of subsection 9(1), the number of days worked out under section 6 needs to be multiplied by the proportion of full-time work that the part-time teacher was engaged to work during the relevant period.

So, for example, if a teacher was engaged to work for a full year (365 days), but part-time hours equal to 0.625 of full-time hours (e.g. 25 hours per week of a 40-hour full-time workload), the number of days in that period that count towards the 1460 day requirement in subsection 10(1) will be 0.625 x 365 (rounded up), or 229 days.

Statement of Compatibility with Human Rights

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

Very Remote HELP Debtor Guidelines 2019

This legislative 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

The Very Remote HELP Debtor Guidelines 2019 (the Guidelines) put in place administrative provisions to support the operation of Division 142 of the Higher Education Support Act 2003 (HESA). In conjunction with Division 140, Division 142 of HESA provides for the reduction of the indexation of a person’s Higher Education Loan Program (HELP) debt if the person is a “very remote HELP debtor” during a year, and a partial or complete remission of that debt if the person is a very remote HELP debtor for 4 years. In particular, the Guidelines:

• set out how to work out the number of days in a year a person was a very remote HELP debtor, for the purposes of reducing the indexation of the person’s HELP debt; and
• set out how to work out the period of time that a person has been a very remote HELP debtor, for the purpose of determining their eligibility for a partial or complete remission of their HELP debt.

Schedule 2 to the Education Legislation Amendment (2019 Measures No. 1) Act 2019 (ELA Act) amended HESA to introduce two measures to assist teachers working in schools in very remote locations in Australia reduce the HELP debts they have incurred in studying their initial teacher education course. The amendments commence on 1 January 2020.

First, teachers working in schools in very remote locations will have the annual indexation of their HELP debt reduced. Second, teachers who work for an equivalent of four years’ full-time in schools in very remote locations in Australia will have an amount, incurred for their recognised initial teacher education course, up to the value of their outstanding HELP debt, fully remitted.

A school is defined in Schedule 2 to ELA Act to be an early childhood education and care service providing a preschool education program, a preschool, or a school providing primary or secondary education. Accordingly, these measures will assist teachers employed in very remote primary and secondary schools, as well as teachers employed in a very remote early childhood education settings.

The purpose of these measures is to assist schools in very remote locations of Australia to recruit and retain high quality teachers, thereby improving education outcomes for students in these very remote communities. It will also ensure that Indigenous communities in very remote locations of Australia have access to adequate school teacher services.

These measures are given effect by amendments to the provisions in Division 140 of HESA under which a person’s accumulated HELP debt is calculated at a particular time. A new Division 142 of HESA sets out the mechanism by which eligibility for these measures is determined.

In order for a person to be eligible for reduction of the indexation of their accumulated HELP debt (which occurs on 1 June every year), a person must have been a “very remote HELP debtor” at some time during the previous calendar year.  The indexation of their HELP debt is reduced in proportion to the period of time in the previous year that the person was a very remote HELP debtor.

In order for a person to be eligible for remission of their HELP debt, the person must have been a very remote HELP debtor for 4 years, or periods adding up to 4 years within a continuous period of 6 years.

In determining the number of days in a year that a person as a very remote HELP debtor was working as a teacher in a very remote school, their employment contract and/or proof of work engagement documents from the person’s employer will be requested during the very remote HELP debtor application process. These documents will serve as evidence to demonstrate an applicant’s engagement as a teacher in a very remote school, and the period of that work engagement, in order to meet eligibility as a very remote HELP debtor.

The principal purpose of the Guidelines is to set out the way in which the periods of time that are relevant to a person’s eligibility as a very remote HELP debtor are worked out.

Human rights implications

The Guidelines provide the administrative and operational requirements of two new HELP debt measures for very remote HELP debtors introduced by Schedule 2 to the ELA Act. Therefore, the Guidelines do not directly engage any human rights.

As to the human rights engaged, and promoted, by the enabling legislation, a Statement of Compatibility with Humans Rights was prepared for the Education Legislation Amendment (2019 Measures No. 1) Bill 2019 and appended to the Explanatory Memorandum for that Bill. The Explanatory Memorandum can be found at:

https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r6428

Conclusion

This legislative instrument is compatible with human rights as it does not raise any human rights issues.