A New Tax System (Goods and Services Tax) (Tertiary Courses) Determination 2014

This instrument, the A New Tax System (Goods and Services Tax) (Tertiary Courses) Determination 2014, modifies how the definition of "tertiary course" in the A New Tax System (Goods and Services Tax) Act 1999 (GST Act) operates for non-full-time courses. It is a ministerial determination made under paragraph (b) of the definition of "tertiary course" in s 195-1 of the GST Act (first paragraph of the instrument). The operative content is in clause 4: a course of study or instruction that is not full-time will be treated as a "tertiary course" for the purposes of the GST Act, but only if that part-time course would, if it were provided on a full-time basis, meet the requirements for a tertiary course under subsection 5D(1) of the Student Assistance Act 1973, as those requirements are specified in the Student Assistance Determination (cl 4).

The Determination contains a retroactive commencement date: clause 2 states it is taken to have commenced on 21 March 2009, although it was made on 15 July 2014 (signed date at head and signature block). Clause 3 sets up three definitions used in the text: Education Minister (the Minister administering the Student Assistance Act), GST Act (the A New Tax System (Goods and Services Tax) Act 1999), Student Assistance Act (the Student Assistance Act 1973), and Student Assistance Determination (the legislative instrument made by the Education Minister under subsection 5D(1) of the Student Assistance Act, "as in force from time to time") (cl 3).

Mechanically, the Determination is a conditional extension of the GST Act's "tertiary course" category to include non-full-time courses, with the condition being hypothetical conformity to the Student Assistance Determination were the course delivered on a full-time basis (cl 4). The Determination does not itself state the contents of the Student Assistance Determination or the GST consequences of being classified as a "tertiary course"; it operates by cross-reference to those other instruments and therefore changes the legal status of certain supplies for GST purposes by altering which courses fall inside the GST Act definition.

The Determination is expressed as a legislative instrument of the Minister for Social Services but the operative definitional reference depends on criteria specified by the Education Minister's Student Assistance Determination (cl 3; head of instrument). The Student Assistance Determination is referenced on a dynamic basis, "as in force from time to time" (cl 3), so subsequent changes to that instrument will alter which non-full-time courses qualify under this Determination without need for a further tertiary-courses Determination.

The instrument uses a small number of tightly defined concepts to achieve its legal effect. The key legal concepts and their mechanics are:

• Tertiary course (as relevant to the GST Act): The Determination operates under paragraph (b) of the GST Act definition, and its sole substantive effect is to treat a not‑full‑time course as a "tertiary course" for GST purposes, subject to the conditional test in clause 4. The Determination does not re‑define "full‑time" or set out a standalone definition of "tertiary course" beyond the cross-reference to the GST Act and the Student Assistance Determination (cl 4).

• Hypothetical full‑time equivalence: Clause 4 sets a counterfactual test. A course that is not full‑time counts as a tertiary course for GST purposes only if it "would, if provided on a full‑time basis, meet the requirements for a tertiary course under subsection 5D(1) of the Student Assistance Act, as those requirements are specified in the Student Assistance Determination." The test does not require that the course actually be provided full‑time; it requires an assessment of whether the course, in a hypothetical full‑time incarnation, would meet the Student Assistance Determination criteria.

• Student Assistance Determination as a dynamic reference: Clause 3 defines "Student Assistance Determination" as "the legislative instrument made by the Education Minister under subsection 5D(1) of the Student Assistance Act for the purposes of that Act, as in force from time to time." That phrase makes the Determination's operative criteria dependent on the current content of the Student Assistance Determination at any relevant time. The Determination therefore imports externally authored and potentially changing substantive criteria into the GST definition.

• Ministerial instruments interacting: The Determination is made by the Minister for Social Services under the GST Act power, but it expressly relies on a separate instrument made by the Education Minister. The identity of "Education Minister" is defined within the Determination as "the Minister administering the Student Assistance Act" (cl 3). The interlocking ministers and instruments create a cross‑portfolio dependency: the GST definition's reach depends on a separate ministerial choice under the Student Assistance Act.

• Retroactivity: Clause 2 declares the Determination is "taken to have commenced on 21 March 2009." The instrument was made on 15 July 2014, but is expressed to operate from the earlier date, which means its legal effect reaches back to that commencement date.

The Determination affects legal entities and persons whose supplies of education services are assessed under the GST Act's definition of "tertiary course". Primary economic actors in that chain are:

• Providers of courses of study or instruction that are not delivered on a full‑time basis. Clause 4 directly addresses courses that are not full‑time. Providers offering part‑time, short‑course, modular, distance, casual enrolment, or other non‑full‑time delivery modes must consider whether their course, if hypothetically delivered full‑time, would meet the Student Assistance Determination criteria. If it would, the course will be treated as a "tertiary course" for GST Act purposes (cl 4). This affects providers' GST obligations, invoicing, classification of supplies, and potential entitlement to input tax treatment or GST‑free status if the GST Act so provides for tertiary courses.

• Consumers/students of those courses. The GST treatment of tuition or course fees influences the final price to consumers. If a previously taxable supply becomes a supply of a "tertiary course" under the GST Act because of this Determination, the GST treatment of fees may change, with upstream consequences for pricing and contractual commitments made before the Determination's retroactive commencement date (cl 2).

• Persons preparing GST returns and advisors (accountants, compliance officers, in‑house tax teams). The Determination alters the legal scope of the GST Act's tertiary‑course definition. Those responsible for preparing activity statements, advising on GST treatment, or maintaining tax records must assess whether non‑full‑time courses in their portfolios meet the hypothetical full‑time test against the Student Assistance Determination (cl 4). The dynamic reference to the Student Assistance Determination "as in force from time to time" (cl 3) requires ongoing monitoring of that instrument.

• Ministers and administrative offices. The instrument centres two ministerial roles: the Minister for Social Services, who made the Determination, and the Education Minister defined as "the Minister administering the Student Assistance Act" (cl 3). Administrative decision‑making in the Education portfolio that alters the Student Assistance Determination will, by operation of clause 3, change which part‑time courses qualify as tertiary courses for GST purposes. Departments supporting these ministers must coordinate to ensure consistent application.

• Entities subject to audit, assessment or review under the GST Act. Because the Determination is expressed to operate from 21 March 2009 (cl 2), entities whose historical GST treatment of part‑time courses between that date and the instrument's making may be affected. They may face the need to reassess prior GST returns or respond to assessments based on reclassification, within the procedural framework of the GST Act.

The Determination creates no freestanding compliance obligations, criminal offences, or administrative rights in its text; rather, it modifies the scope of the GST Act's definition of "tertiary course", thereby altering which supplies fall inside the GST Act category and so come within the GST Act's existing regime of duties and rights. The instrument itself contains the following operative duties and interlocking rights by reference.

Duties imposed by operation of the Determination

• Assess qualification of non‑full‑time courses. Providers must determine whether a not‑full‑time course "would, if provided on a full‑time basis, meet the requirements ... as those requirements are specified in the Student Assistance Determination" (cl 4). The duty is evidential and prospective: it requires an assessment of conformity to externally specified requirements, not a change to delivery mode.

• Monitor changes to the Student Assistance Determination. Clause 3 defines the Student Assistance Determination as "as in force from time to time", which imposes an ongoing duty on affected parties to track amendments to that instrument. Changes in that instrument will alter which part‑time courses are captured, without further action by the Minister for Social Services.

Rights and entitlements (by reference)

• If a not‑full‑time course qualifies under the Determination and thereby falls within the GST Act's definition of "tertiary course", the provider and recipient are entitled to whatever GST treatment the GST Act confers upon tertiary courses. The Determination does not itself create the GST treatment; it changes which supplies are subject to the GST Act's pre‑existing rules for tertiary courses (cl 4).

• The Determination does not limit a taxpayer's procedural rights under the GST Act, such as rights to object to assessments, seek review, amend returns, or claim input tax credits, because those mechanisms are contained in the GST Act rather than in this Determination. Affected parties retain those statutory rights; the Determination only changes which supplies are treated as tertiary courses for the purpose of applying those statutory mechanisms.

Administrative and evidentiary implications

• Burden of proof and recordkeeping. Although the Determination does not expressly set evidentiary standards, its counterfactual test will require providers to retain documentation demonstrating that a course, if provided full‑time, would have met the Student Assistance Determination requirements. That creates a practical duty to compile and preserve records and to be able to articulate how a part‑time course maps to full‑time criteria.

The Determination itself does not create penalties, offences, or a separate enforcement scheme. It is a definitional instrument that changes which supplies fall within the GST Act's "tertiary course" category. Therefore enforcement and penalties relevant to this Determination arise by operation of the GST Act and any procedures under that Act, as well as any applicable provisions under the Student Assistance Act and associated instruments. Points to note, grounded in the Determination's text and structure, are:

• Absence of penalty clauses in the Determination. The Determination contains only four clauses and no provisions imposing fines, sanctions, or criminal liability. It is limited to naming the Determination (cl 1), prescribing commencement (cl 2), defining terms (cl 3), and stating the substantive extension to non‑full‑time courses (cl 4). Any contraventions, late lodgements, incorrect GST treatments, or failures to account for GST remain governed by the GST Act's existing enforcement, assessment and penalty rules, not by the Determination itself.

• Enforcement flows from reclassification under the GST Act. Because the Determination changes the classification of particular supplies, it can create or remove GST liabilities. If a provider has incorrectly accounted for GST in light of this Determination and the GST Act, the provider may face assessments, interest, and penalties under the GST Act for historical periods affected by the Determination's retroactive commencement (cl 2). The Determination does not alter the statutory mechanisms for imposing such consequences; it only changes the underlying question of classification.

• Retroactivity raises assessment and compliance issues. Clause 2 declares the Determination to be taken to have commenced on 21 March 2009. That retrospective effect means that GST liabilities and entitlements for supplies made from that date may be recharacterised. The practical enforcement consequence is that applicable administrative time limits, amendment windows, and assessment powers under the GST Act become relevant for the periods back to March 2009. The Determination does not itself modify those procedural time limits.

• Administrative actors and interpretive enforcement. The Determination imports substantive criteria from the Student Assistance Determination "as in force from time to time" (cl 3). As those external criteria are changed, administrative officers applying the GST Act will interpret whether a given part‑time course would satisfy those criteria in a full‑time hypothetical. That interpretive exercise will be the focus of any compliance scrutiny or dispute. The Determination creates room for interpretive enforcement action by tax administration authorities under the GST Act; it does not specify evidentiary thresholds or adjudicative processes for that exercise.

This Determination is explicitly an instrument that operates by cross‑reference to two other statutory regimes. The text itself defines its operation in terms of the GST Act and the Student Assistance Act and the associated Student Assistance Determination. The principal points of interaction, as stated in the Determination, are as follows.

Primary statutory cross‑references

• GST Act definition. The Determination is made under paragraph (b) of the definition of "tertiary course" in s 195-1 of the GST Act (first paragraph of the instrument). It therefore amends, for definitional purposes only, how that paragraph will be applied to non‑full‑time courses. The Determination does not amend substantive taxing provisions of the GST Act; it changes classification criteria for application of those provisions.

• Student Assistance Act and Student Assistance Determination. Clause 4 requires that a non‑full‑time course be treated as a tertiary course for GST purposes only if it "would, if provided on a full‑time basis, meet the requirements for a tertiary course under subsection 5D(1) of the Student Assistance Act, as those requirements are specified in the Student Assistance Determination." Clause 3 defines the Student Assistance Determination as the legislative instrument made under s 5D(1) of the Student Assistance Act "as in force from time to time." That creates a direct legal dependency: the scope of the GST Act definition for part‑time courses depends on the content of the Student Assistance Determination at the relevant time.

Dynamic incorporation and consequential interaction

• Dynamic incorporation of external criteria. Because the Determination imports the Student Assistance Determination "as in force from time to time" (cl 3), changes to the Student Assistance Determination will automatically alter the class of non‑full‑time courses that qualify as tertiary courses under the GST Act, without any additional action under the GST Act. This produces a channel by which education policy changes in the Student Assistance Act sphere have immediate tax law consequences.

• Interministerial and administrative co‑ordination. The Determination was made by the Minister for Social Services, but the operative qualification is determined by the Education Minister's Student Assistance Determination. This requires co‑ordination across the social services and education portfolios to ensure consistent policy outcomes and administrative application. The instrument itself does not prescribe how the two portfolio offices must coordinate.

The Determination contains a formal commencement date, a date of signature, and references that imply susceptibility to change through the instruments it imports, but as a stand‑alone instrument it shows no internal amendments, schedules, or subordinate changes. Based strictly on the instrument text provided, the amendment history is as follows.

• Original making and date. The Determination was made by Kevin Andrews, Minister for Social Services, and is dated 15 July 2014 (signature block at head). Clause 1 names the instrument and clause 2 prescribes the commencement date as being taken to have been 21 March 2009.

• No internal amendments recorded. The instrument as printed contains no subsequent amendment clauses, no revocation of prior determinations, and no schedules. There are no express savings or transitional amendment clauses. The instrument does not purport to repeal any previous tertiary‑course determinations. The text includes only four operative clauses (cl 1 to cl 4).

• Dependence on external, dynamically changing instrument. Clause 3 defines "Student Assistance Determination" as the legislative instrument made by the Education Minister under subsection 5D(1) of the Student Assistance Act "as in force from time to time." That creates an external amendment pathway: amendments to the Student Assistance Determination will alter which non‑full‑time courses qualify under this Determination without amending this Determination itself. In that sense, the Determination is fungible with respect to content controlled by another instrument, and its operative scope can be altered by changes outside this document.

• Potential avenues for amendment. As a ministerial legislative instrument made under paragraph (b) of the GST Act definition, the Determination could in future be revoked or replaced by a subsequent determination made under the same or different statutory power in the GST Act. The Determination itself contains no mechanism for its own amendment; that is governed by the usual legislative instrument regime under the Acts Interpretation and Legislation Acts (not reproduced in this text).

• No recorded prior versions in this text. The instrument as supplied does not provide an amending history, a notes table, or a list of earlier versions. Any historical amendments or revocations would need to be ascertained from the legislative instrument register or parliamentary records; they are not contained in the instrument itself.

The provided Determination text does not record, reference, or cite any litigation. It contains no footnotes, no references to judicial or administrative decisions, and no schedules identifying contested interpretations. Therefore, based solely on the instrument text, there is no litigation history contained within the Determination.

That absence of recorded litigation in the instrument gives rise to a set of practical observations relevant to those considering disputes over its operation:

• Points likely to generate dispute. Although no cases are recorded in the Determination, the operative clause (cl 4) raises interpretive issues that, if contested, would be litigable under the procedural framework of the GST Act. Key contentious issues likely to arise include the meaning and application of the counterfactual test "would, if provided on a full‑time basis, meet the requirements..." and the evidentiary standard required to show that test is satisfied for a particular part‑time course.

• Retrospective operation as a litigation trigger. Clause 2 takes the Determination to have commenced on 21 March 2009. Retrospective reclassification of supplies may provoke litigation where taxpayers dispute assessments or seek relief against retrospective taxation. Any such disputes would be litigated under the GST Act's review and appeal mechanisms; the Determination itself imposes no bespoke review path.

• Interpreting dynamically incorporated criteria. The Determination imports criteria "as specified in the Student Assistance Determination" (cl 4). Litigation could focus on whether a given version of the Student Assistance Determination applies at a particular time, especially where that instrument has been amended. The Determination's dynamic incorporation clause (cl 3) may create arguments about temporal application and which version of the Student Assistance Determination governs a past period.

• Evidentiary and factual disputes. Courts or tribunals confronted with a challenge will likely need to assess expert evidence on course content, delivery modes, contact hours, learning outcomes, and comparability between part‑time and hypothetical full‑time delivery. The Determination's counterfactual test requires fact‑intensive assessment rather than a purely legal construction.

• No guidance in the instrument about procedural handling. The Determination contains no guidance on how disputes as to qualification should be presented to administrators or courts. Litigants would rely on the GST Act's general procedures and evidentiary rules.

This Determination is compact but contains several features that produce practical traps for providers, advisers and administrators. Those features derive from its conditional test, its dynamic references, and its retroactive commencement. The following are concrete risks and friction points, based on the Determination's text.

• Counterfactual test complexity (cl 4). Clause 4 requires assessment of whether a non‑full‑time course "would, if provided on a full‑time basis, meet the requirements ... as those requirements are specified in the Student Assistance Determination." That is a hypothetical assessment. Providers must translate course components, learning outcomes and delivery modes into a hypothetical full‑time equivalent and then map that to the Student Assistance Determination criteria. There is no simplifying checklist in this Determination; the burden is on parties to make that mapping. The absence of an objective, formulaic test creates room for differing reasonable interpretations.

• Dynamic incorporation increases regulatory flux (cl 3). The Determination links qualification to the Student Assistance Determination "as in force from time to time." A single amendment to the Student Assistance Determination will change which part‑time courses qualify under the GST Act without any formal tax amendment. Providers and advisers must monitor the Student Assistance Determination continuously; failure to do so may lead to inadvertent misclassification.

• Retroactive commencement creates historic exposure (cl 2). The Determination is "taken to have commenced on 21 March 2009." That retroactivity means that supplies made since that date may be reclassified. Practitioners should review records and returns back to March 2009 for affected courses, bearing in mind the GST Act's existing time limits for amendment and assessment. The Determination contains no transitional relief, so historical reliance on a prior classification may not protect against reassessment under the GST Act.

• Interministerial dependency and administrative uncertainty (cl 3). The Determination was made by the Minister for Social Services, but qualification depends on an instrument made by the Education Minister. If portfolio responsibilities shift between ministers, the referent for "Education Minister" remains "the Minister administering the Student Assistance Act" (cl 3), but coordination and policy alignment issues between ministers could produce uncertain or delayed guidance for affected providers.

Compliance under this Determination is primarily an exercise in classification, recordkeeping and monitoring. The Determination itself imposes no new statutory forms or lodgements; it changes which supplies fall within the GST Act's tertiary‑course definition and therefore which existing GST obligations apply. Practical steps to comply, drawn from the Determination's text and the operational issues it raises, are as follows.

1. Identify affected courses

• Inventory course offerings. Compile a list of all courses of study or instruction offered that are not delivered on a full‑time basis. Clause 4 applies specifically to "a course of study or instruction that is not full‑time."

• Flag courses that could hypothetically be offered full‑time. For each part‑time course, make a preliminary assessment of whether it could be reconfigured as a full‑time course that would meet the Student Assistance Determination criteria. This will often require mapping contact hours, learning outcomes, assessment regimes and curriculum sequencing to a full‑time model.

2. Analyse the Student Assistance Determination criteria

• Obtain the current Student Assistance Determination. Clause 3 defines "Student Assistance Determination" as the instrument under s 5D(1) of the Student Assistance Act "as in force from time to time." Ensure you have the up‑to‑date text of that legislative instrument.

• Map course attributes to those criteria. For each part‑time course, document how the course, if provided full‑time, would satisfy each relevant requirement of the Student Assistance Determination. Produce a clear, auditable mapping document that explains assumptions and methodologies.

3. Maintain contemporaneous evidence of the hypothetical test

• Keep records supporting the full‑time hypothetical. Because clause 4 requires a hypothetical assessment, keep contemporaneous documents showing how the full‑time equivalent was constructed: course outlines, timetables, credit points, learning outcomes, assessments, and any internal conversion factors used to translate part‑time delivery into full‑time equivalents.

• Preserve change histories. Where the Student Assistance Determination changes, retain past versions and the dates they were in force. Clause 3's "as in force from time to time" language means the relevant version at the relevant time must be identified.