2.1.1 This Chapter 2 of the Guidelines sets out the requirements for tuition assurance for the purposes of section 16-30 of the Act (the "tuition assurance requirements").
2.1.5 The tuition assurance requirements have four parts:
Part 1: General Requirements
Part 2: Course Assurance Requirements;
Part 3: Student Contribution or Tuition Fee Repayment Requirements (which is the student contribution / tuition fee repayment option referred to in paragraphs 36-22A(1)(f), 79-20(d) and 104-42(1)(d) of the Act); and
Part 4: Administrative and Other Requirements.
2.1.10 A higher education provider, other than a Table A provider or an Exempt Provider, (the “First Provider”) must satisfy the Minister that it complies with all four parts of the tuition assurance requirements.
2.1.15 A First Provider that is a registered provider is not required to comply with the tuition assurance requirements in respect of overseas students enrolled in a course with the First Provider, where, for the purposes of this paragraph 2.1.15, the terms:
course;
overseas student; and
registered provider;
have the meanings given to them in the Education Services for Overseas Student Act 2000.
2.1.20 If a First Provider ceases to provide a course of study, a person who is currently enrolled in that course of study may choose to access either the arrangements described in Part 2 (Course Assurance) or those described in Part 3 (Student Contribution or Tuition Fee Repayments). If a person chooses to access Part 2 (Course Assurance), the person may access Part 3 (Student Contribution or Tuition Fee Repayments) in respect of replaced units, but only under the circumstances described in section 2.4, Part 3.2, below.
Meaning of “ceases to provide a course of study”
2.1.25 For the purposes of this Chapter 2 of the Guidelines, a First Provider "ceases to provide a course of study” if:
the course does not start on:
(i) the date the course was scheduled to start; or
(ii) a later date that has been agreed between the First Provider and the person enrolled in the course; or
the First Provider commences providing the course to a person and then, before the person has completed the course, ceases to provide that course (for any reason); or
the Minister has suspended or revoked approval of the First Provider as a higher education provider under the Act and has not made a determination pursuant to paragraph 22-25(1)(b) of the Act in respect of that course; or
notice is served on the First Provider or proceedings are taken to cancel the First Provider’s incorporation or registration or to dissolve the First Provider as a legal entity; or
the First Provider comes under one of the forms of external administration referred to in Chapter 5 of the Corporations Act 2001 or equivalent provisions in other legislation, or an order has been made to place the First Provider under external administration; or
in the case of a non self-accrediting institution, the First Provider ceases to have its name included, or to own or control a business name that is included, in the list of non self-accrediting higher education institutions contained in the Australian Qualifications Framework Register, as the name of an institution approved by an authorised accreditation authority to issue one or more higher education awards; or
in the case of a self-accrediting institution, the First Provider ceases to have its name included, or to own or control a business name that is included, in the list of self-accrediting higher education institutions contained in the Australian Qualifications Framework Register, as the name of an institution empowered to issue its own qualifications; or
the Secretary makes a declaration under paragraph 2.1.31b) that the First Provider has ceased to provide the course.
Other circumstances that may amount to ceasing to provide a course of study
2.1.30 If:
a First Provider fails to comply with a statutory demand within the meaning of section 459F of the Corporations Act 2001; or
a First Provider is unable to pay all of its debts when they become due; or
proceedings are initiated to obtain an order for a First Provider’s winding up or any shareholder, member or director convenes a meeting to consider a resolution for the winding up of the First Provider
then the First Provider must immediately notify the First Provider’s tuition assurance administrators and the Group Manager to that effect.
2.1.31 If the Group Manager becomes aware (whether by notice under paragraph 2.1.30 or otherwise) that any of the events described in paragraphs 2.1.30a), 2.1.30b) or 2.1.30c) apply, or may apply, to a First Provider, then:
the First Provider must, within a period specified by the Group Manager, provide the Secretary with such information that the Group Manager may reasonably request in relation to that event;
the Secretary may, after considering any information provided by the First Provider under paragraph 2.1.31a), declare in writing that, for the purposes of this Chapter 2 of the Guidelines, the First Provider has ceased to provide one or more courses of study specified in the declaration; and
the Secretary must give a copy of the declaration to the First Provider and the First Provider’s tuition assurance administrators.
2.2 PART 1: GENERAL REQUIREMENTS
Corporate separation
2.2.1 Subject to paragraph 2.2.2, the relationship between a First Provider and each of its tuition assurance administrators must be such that at all times:
they are legally separate entities;
they are not related to each other within the meaning of section 50 of the Corporations Act 2001;
they are not associated entities within the meaning of section 50AAA of the Corporations Act 2001;
they are not in a position where one is able to control the other within the meaning of section 50AA of the Corporations Act 2001; and
they do not have in common one half or more of the persons who are directors or officers of either entity, where the terms “director” and “officer” have the meanings given to them in section 9 of the Corporations Act 2001.
2.2.2 If at any time the relationship between a First Provider and any of its tuition assurance administrators ceases to meet the requirements of paragraph 2.2.1, then the First Provider must immediately notify the Group Manager to that effect in writing, and include with that notification an alternative proposal for the Minister’s approval (which may be subject to such conditions as the Minister, in his or her sole discretion, may impose) that includes:
detailed reasons for the non-compliance with paragraph 2.2.1;
detailed reasons explaining why the First Provider and the tuition assurance administrator are prevented from changing the relationship between them so as to comply with paragraph 2.2.1; and
details of any alternative arrangements proposed to apply as between the First Provider and the tuition assurance administrator which, while they will not result in a relationship that meets the requirements of paragraph 2.2.1, the First Provider reasonably believes meet the remainder of the tuition assurance requirements.
By way of example only, and without prejudice to the Department’s and the Minister’s consideration of the proposal, the alternative arrangements may include any one or more of the following:
(i) a separate unconditional financial guarantee from a third person (who may be a natural person or a body corporate);
(ii) a trust arrangement with an independent, third party trustee;
(iii) a specifically established trust account with a bank or other financial institution.
2.3 PART 2: COURSE ASSURANCE REQUIREMENTS
2.3.1 The First Provider must demonstrate to the satisfaction of the Minister that it complies with the requirements in paragraph 2.3.5, by having in place, for each higher education course of study it provides, one or more of these arrangements:
membership of a tuition assurance scheme that is:
(i) operated by a legal entity (“Course Assurance TAS Operator”); and
(ii) approved by the Minister for this purpose;
a legally-binding agreement with one or more Second Providers (subject to paragraph 2.3.10);
a legally-binding guarantee provided by a legal entity (“Course Assurance Guarantor”) that is a body corporate incorporated under or in accordance with a law of the Commonwealth or of any Australian State or Territory (not necessarily a higher education provider) and which has the necessary financial and administrative resources to fulfil such a guarantee, including resources that, should the First Provider cease to provide a course of study, will be available for use by the Course Assurance Guarantor, if requested by persons enrolled in that course of study, to make all the arrangements necessary to ensure that those persons are enrolled in a similar course of study with another higher education provider.
2.3.5 If the First Provider ceases to provide a unit as a result of ceasing to provide the course of study of which the unit formed part, and if a student who is enrolled in the unit at that time chooses this course assurance option and not the student contribution / tuition fee repayment option in respect of the unit, that student:
must be able to enrol in a similar course of study leading to the same or a comparable qualification with another higher education provider (the “Second Provider”);
must receive from the Second Provider for any successfully completed units of study undertaken as part of that course of study:
(i) full recognition (that is, full credit towards the same or a comparable qualification); or
(ii) if the Minister agrees that a course of study that the First Provider provides is of such a specialised nature, or contains components of such a specialised nature, that full credit transfer cannot be arranged - as much credit as possible towards a similar course of study;
must not be required to:
(i) pay the Second Provider a student contribution amount or tuition fee for any replacement unit; nor
(ii) give an appropriate officer of the Second Provider (or any other person) a request for Commonwealth assistance in relation to any replacement unit.
2.3.10 If a Second Provider is not approved as a higher education provider at the time of entering a legally-binding agreement referred to in paragraph 2.3.1(b), it must obtain approval as a higher education provider within six calendar months after the First Provider is approved as a higher education provider, or, where the First Provider is a listed provider, within six months after the date of the agreement.
2.4 PART 3: STUDENT CONTRIBUTION OR TUITION FEE REPAYMENT REQUIREMENTS
Part 3.1: Students choosing student contribution / tuition fee repayment option for units that First Provider has ceased to provide
2.4.1 The First Provider must demonstrate to the satisfaction of the Minister that it complies with the requirements in paragraphs 2.4.2 to 2.4.7, by having in place, for each higher education course of study it provides, one or more of these arrangements:
membership of a tuition assurance scheme that is:
(i) operated by a legal entity (“Repayment TAS Operator”); and
(ii) approved by the Minister for this purpose;
a ‘tuition fees in arrears’ agreement is offered by the First Provider to students under which students enrol on the basis that student contributions or tuition fees for each unit of their course of study are paid in arrears;
a legally binding guarantee provided by a legal entity (“Repayment Guarantor”) that is a body corporate incorporated under or in accordance with a law of the Commonwealth or of any Australian State or Territory (not necessarily a higher education provider) which has the necessary financial and administrative resources to fulfil such a guarantee.
2.4.2 If a First Provider ceases to provide a unit as a result of ceasing to provide the course of study of which the unit formed part, and if a student who is enrolled in the unit at that time chooses this student contribution / tuition fee repayment option and not the course assurance option in respect of the unit, then, within one month (or longer period agreed in writing by the Group Manager) after receiving notification of that choice, the First Provider must:
determine that section 36-22A of the Act applies to the student in respect of the unit (if the requirements of subsection 36-22A(1) of the Act are met); or
re-credit the student’s SLE for the unit (if the requirements of subsection 79-20(1) of the Act are met); or
re-credit the student’s FEE-HELP balance in respect of the unit (if the requirements of subsection 104-42(1) of the Act are met); and
immediately after making the determination or effecting the re-crediting under paragraph 2.4.2a), 2.4.2b) or 2.4.2c), as the case may be, notify its Repayment TAS Operator or Repayment Guarantor (whichever is applicable) to that effect.
(Under subsections 36-22A(3), 79-20(2) and 104-42(2) of the Act, the Secretary may make the determination or effect the re-crediting if the First Provider is unable to do so, in which case the Secretary may give the notice referred to in paragraph 2.4.2d).)
2.4.3 Within ten Business Days after receiving notification from the First Provider or the Secretary under paragraph 2.4.2, the Repayment TAS Operator or Repayment Guarantor (whichever is applicable) must:
pay the student the total of any up-front payments paid for that unit of study to the First Provider by the student (or on behalf of the student by any party other than the Commonwealth); and
pay the Commonwealth any amounts paid for that unit of study by the Commonwealth to the First Provider in discharge of the student’s liability to pay his or her student contribution amount or tuition fee for the unit.
Part 3.2: Students withdrawing from replacement units under special circumstances
2.4.4 If the Second Provider receives an application from any person under paragraph 36-22(1)(e), 79-1(1)(d) or 104-25(1)(d) of the Act in relation to a replacement unit in which the person is enrolled with a Second Provider, the Second Provider must:
immediately notify the First Provider and the Group Manager of the application;
ensure that the up-to-date information kept by it under paragraph 2.5.2.1 can be accessed by the Commonwealth and, in order to effectively meet their obligations under the arrangements, the First Provider’s tuition assurance administrators;
deal with the application in accordance with subsection 36-22(7) or section 79-15 or subsection 104-40(1) of the Act (as the case may be); and
immediately after having dealt with the application, notify the persons referred to in subparagraph 2.4.4a) as to whether, in respect of the replacement unit:
(i) it has determined that section 36-22 of the Act applies to the student; or
(ii) it is satisfied that the requirements of subsection 79-1(1) of the Act are met; or
(iii) it is satisfied that the requirements of subsection 104-25(1) of the Act are met.
(Under subsections 36-22(9), 79-1(2) and 104-25(3) of the Act, the Secretary may act for certain purposes where the relevant provider is unable to do so, in which case the Secretary may give the notice referred to in this subparagraph 2.4.4d).)
2.4.5 If the notice under subparagraph 2.4.4d)(i) states that the Second Provider has determined that section 36-22 of the Act applies to the student, the First Provider must immediately notify its Repayment TAS Operator or Repayment Guarantor (whichever is applicable) to that effect.
(The Secretary may give this notice if the First Provider is unable to do so.)
2.4.6 If a notice under subparagraph 2.4.4d)(ii) or 2.4.4d)(iii), states that the Second Provider is satisfied that the requirements of subsection 79-1(1) or subsection 104-25(1) of the Act, respectively, are met:
a) the Second Provider and the persons referred to in sub-paragraph 2.4.4a) will liaise and do all things reasonably necessary to effect re-crediting of the student’s SLE or FEE-HELP balance in relation to the replaced unit within one month after the First Provider receives the notice; and
b) the First Provider must immediately after the re-crediting has been effected, notify its Repayment TAS Operator or Repayment Guarantor (whichever is applicable) to that effect.
(Under subsections 79-1(2) and 104-25(3), the Secretary may effect the re-crediting or if the relevant provider is unable to do so, in which case the Secretary may give the notice referred to in subparagraph 2.4.6b).)
2.4.7 Within five Business Days after receiving notification from the First Provider or the Secretary under paragraph 2.4.5, the Repayment TAS Operator or Repayment Guarantor (whichever is applicable) must, for the purposes of subsections 36-20(3), 36-22(2B) and 110-5(1B) of the Act, and in consequence of the remission of any HECS-HELP debt or FEE-HELP debt under subsections 137-5(4), 137-5(5) or 137-10(4) of the Act:
pay the student the total amount of any up-front-payments paid for the replaced unit to the First Provider by the student (or on behalf of the student by any party other than the Commonwealth); and
pay the Commonwealth any amounts paid for the replaced unit by the Commonwealth to the First Provider in discharge of the student’s liability to pay his or her student contribution amount or tuition fee for the replaced unit.
2.5 PART 4: ADMINISTRATIVE AND OTHER REQUIREMENTS
2.5.1 Statement of Tuition Assurance
2.5.1.1 A First Provider must publish to all enrolling students a complete and unambiguous “Statement of Tuition Assurance” explaining the tuition assurance requirements and the tuition assurance scheme that is in place to meet the tuition assurance requirements for each of its higher education courses of study.
2.5.1.5 Exempt providers must publish to all enrolling students a “Statement of Tuition Assurance Exemption” explaining the exemption/s they have been granted from complying with the tuition assurance requirements and what this means in the event the Exempt Provider ceases to provide the course(s) concerned.
2.5.1.10 The method of publication to be used for both the Statement of Tuition Assurance and the Statement of Tuition Assurance Exemption is to be determined by the First Provider and may include printed handbooks, publication on the First Provider's web site, or any other method determined by the First Provider which would bring the information to the attention of students and prospective students. The First Provider must also ensure that at enrolment each enrolling student is provided with clear information about where either the Statement of Tuition Assurance or the Statement of Tuition Assurance Exemption (whichever is applicable) may be obtained.
2.5.1.15 The Statement of Tuition Assurance must explain to students, that if the First Provider ceases to provide the course of study in which they are enrolled:
the First Provider must meet the tuition assurance requirements;
the First Provider has a tuition assurance arrangement in place to meet the tuition assurance requirements and the nature of that tuition assurance arrangement;
students will have the choice of:
an offer of a place in a similar course of study with a Second Provider without any requirement to pay the Second Provider any student contribution or tuition fee for any replacement units (the “course assurance option”); or
a refund of their up-front payments for any unit of study that the student commences but does not complete because the First Provider ceases to provide the course of study of which the unit forms part (an “Affected Unit”) (and, if the student chooses this option, a corresponding re-crediting of any SLE or FEE-HELP balance relating to that unit) (the “student contribution / tuition fee repayment option”); and
if students choose the course assurance option:
the nature of the similar course of study that would be offered to students;
the name of the Second Provider that would be providing this similar course of study;
the qualification to which this similar course of study would lead; how much credit a student would receive for the units of study they have completed with the First Provider towards the similar course of study [Note: This will be full credit unless otherwise approved by the Minister under subparagraph 2.3.5b)(ii)];
that the Second Provider might have different student contribution amounts or tuition fees for units of study in the remainder of the similar course of study, to the amounts or fees students would have paid for units of study which were part of the course of study the First Provider ceased to provide; and
that students are not obliged to enrol in the course offered with the Second Provider under the course assurance option, but that if they enrol with any other provider there is no obligation on that provider to offer full credit transfer for the units of study completed with the First Provider or to offer a replacement unit free of charge.
2.5.2 Information for tuition assurance administrators and the Commonwealth
2.5.2.1 The First Provider must keep up-to-date enrolment information on the persons enrolled with the First Provider, and the Second Provider must keep up-to-date enrolment information on the persons enrolled in replacement units with the Second Provider. This information must include:
each person’s name and contact details;
the name of the course and the unit(s) the person is currently enrolled in;
the amount paid for each unit that the person is currently enrolled in and the nature of that payment (ie student contribution or tuition fee, amounts paid up-front versus through a HELP loan);
details of the units successfully completed with provider to date; and
for Second Providers, details of credits granted under paragraph 2.3.5b).
2.5.2.5 The First Provider must ensure that, if its tuition assurance scheme is activated, the information described in paragraph 2.5.2.1 can be accessed by the Commonwealth and, in order to effectively meet their obligations under those arrangements, the First Provider’s tuition assurance administrators.
2.5.2.10 The tuition assurance scheme must provide that, if it is activated, each tuition assurance administrator must:
immediately seek to obtain the information described in paragraph 2.5.2.1 from the First Provider; and
if such information is not readily available, make all reasonable efforts to fulfil the obligations it has assumed under the tuition assurance scheme.
2.5.3 Written Tuition Assurance Offer to Students
2.5.3.1 The tuition assurance scheme must provide that:
if the First Provider ceases to provide a course of study, the tuition assurance administrator(s) for that course of study must provide a person enrolled in that course with written advice (the “Written Tuition Assurance Offer”), that he/she may choose either the course assurance option or the student contribution / tuition fee repayment option;
where the tuition assurance administrator is a Second Provider referred to in paragraph 2.3.1b), the Written Tuition Assurance Offer must make a direct offer of enrolment as specified in subparagraph 2.5.1.15d);
where the tuition assurance administrator is a Course Assurance TAS Operator or a Course Assurance Guarantor, the Written Tuition Assurance Offer must name the course(s) and Second Provider(s) that the student may choose for the purposes of enrolling as specified in subparagraph 2.5.1.15d);
where the tuition assurance administrator is a Repayment TAS Operator or Repayment Guarantor, the Written Tuition Assurance Offer must make a direct offer of repayment as specified in subparagraph 2.5.1.15c)ii);
the Written Tuition Assurance Offer must refer to and enclose a copy of the First Provider’s Statement of Tuition Assurance referred to in paragraph 2.5.1.1, and, in relation to the Guidelines:
refer to www.comlaw.gov.au, from which an electronic copy of the Guidelines can be obtained; and
include contact details of the First Provider’s personnel from whom a copy of the Guidelines can be obtained;
the Written Tuition Assurance Offer must include directions that the student must follow in order to notify the First Provider, the First Provider’s tuition assurance administrator(s) and the Group Manager of the choice that the student has made under paragraph 2.5.3.1a) for each Affected Unit (as defined in paragraph 2.5.1.15c)ii));
the Written Tuition Assurance Offer must completely and unambiguously comply with all of the requirements specified in this section 2.5.3;
the tuition assurance administrator responsible for providing any Written Tuition Assurance Offer must do so within twenty Business Days after it knows, or should know by reasonable enquiries (including enquiries of the First Provider and of the Department) that the First Provider has ceased to provide the course of study.
2.6 EXEMPTION
2.6.1 Any body corporate seeking to be approved by the Minister as a higher education provider or any higher education provider other than a Table A provider which considers that adequate grounds exist for it to be exempted from complying with the tuition assurance requirements under section 19-40 of the Act, should apply to the Minister in writing setting out those grounds.