45EEffect of VET FEE‑HELP account being in deficit at the end of a calendar year

45E  Effect of VET FEE‑HELP account being in deficit at the end of a calendar year  (a) a *VET provider’s *VET FEE‑HELP account is in deficit at the end of a calendar year; and  (b) the *Secretary gives the VET provider a written notice about the deficit; the VET provider must pay to the Commonwealth an amount equal to the amount of the deficit (the excess loan amount).  (2) The excess loan amount is due on the seventh day (the due day) after the day the notice is given. Late payments of the excess loan amount attract the general interest charge  (3) If some or all of the excess loan amount remains unpaid after the due day, the *VET provider must pay to the Commonwealth an amount (the general interest charge) relating to the unpaid amount for each day in the period that:  (a) starts at the beginning of the day after the due day; and  (b) ends at the end of the last day on which, at the end of the day, any of the following remains unpaid:  (i) the excess loan amount;  (ii) general interest charge on any of the excess loan amount.  (4) The general interest charge for a particular day is worked out by multiplying the *general interest charge rate for that day by the sum of so much of the following amounts as remains unpaid:  (a) the general interest charge from previous days;  (b) the excess loan amount.  (5) The general interest charge for a day is due and payable to the Commonwealth at the end of that day.  (6) The *Secretary may give written notice to the *VET provider of the amount of the general interest charge for a particular day or days. A notice given under this subclause is prima facie evidence of the matters stated in the notice.  (7) The *Secretary may remit all or a part of the general interest charge payable by the *VET provider if the Secretary is satisfied:  (a) that:  (i) the circumstances that contributed to the delay in payment were not due to, or caused directly or indirectly by, an act or omission of the VET provider; and  (ii) the VET provider has taken reasonable action to mitigate, or mitigate the effects of, those circumstances; or  (b) that it is otherwise appropriate to do so.  (8) An amount payable under this clause may be recovered by the Commonwealth from the *VET provider as a debt due to the Commonwealth. Subdivision 7‑B—Re‑crediting HELP balances in relation to VET FEE‑HELP assistance 46  Main case of re‑crediting a person’s HELP balance in relation to VET FEE‑HELP assistance  (1) If clause 46A, 46AA or 51 applies to re‑credit a person’s *HELP balance in relation to the amounts of *VET FEE‑HELP assistance that the person has received for a *VET unit of study, then this clause does not apply in relation to that unit. Note: For HELP balance, see section 128‑15, and for HELP loan limit, see section 128‑20.  (2) A *VET provider must, on the *Secretary’s behalf, re‑credit a person’s *HELP balance with an amount equal to the amounts of *VET FEE‑HELP assistance that the person received for a *VET unit of study if:  (b) the person has not completed the requirements for the unit during the period during which the person undertook, or was to undertake, the unit; and  (c) the provider is satisfied that special circumstances apply to the person (see clause 48); and  (i) the application is made before the end of the application period under clause 49; or  (ii) the provider waives the requirement that the application be made before the end of that period, on the ground that it would not be, or was not, possible for the application to be made before the end of that period. Note 1: A VET FEE‑HELP debt relating to a VET unit of study will be remitted if the HELP balance in relation to the unit is re‑credited: see section 137‑18. Note 2: For certain VET FEE‑HELP debts relating to a VET unit of study, the amount to be re‑credited under this clause in relation to the unit may be reduced: see clause 51AA.  (3) If the provider is unable to act for one or more of the purposes of subclause (2), or clause 48, 49 or 50, the *Secretary may act as if one or more of the references in those provisions to the provider were a reference to the Secretary. 46A  Re‑crediting a person’s HELP balance in relation to VET FEE‑HELP assistance—unacceptable conduct by provider or provider’s agent Decision to re‑credit due to unacceptable conduct  (1) The *Secretary must re‑credit a person’s *HELP balance with an amount equal to the amounts of *VET FEE‑HELP assistance that the person received for a *VET unit of study if the Secretary is satisfied that:  (a) the person has been enrolled in the unit with a *VET provider; and  (b) the person has not completed the requirements for the unit during the period the person undertook, or was to undertake, the unit; and  (c) circumstances exist, of a kind specified in the *VET Guidelines for the purposes of this paragraph, involving unacceptable conduct by the VET provider (or an agent of the VET provider) relating to the person’s *request for Commonwealth assistance relating to:  (i) the unit; or  (ii) the *VET course of study of which the unit forms a part; and  (d) the person has applied in writing to the Secretary for re‑crediting of the HELP balance under this subclause; and  (e) the application is in the form approved by the Secretary, and is accompanied by such information as the Secretary requests; and  (f) either:  (i) the application was made during the first 3 years after the period during which the person undertook, or was to undertake, the unit; or  (ii) it would not be, or was not, possible for the application to be made during those 3 years. Note 1: A VET FEE‑HELP debt relating to a VET unit of study will be remitted if the HELP balance in relation to the unit is re‑credited: see section 137‑18. Note 2: For certain VET FEE‑HELP debts relating to a VET unit of study, the amount to be re‑credited under this clause in relation to the unit may be reduced: see clause 51AA.  (a) the person received the *VET FEE‑HELP assistance as a result of giving an *appropriate officer of the *VET provider a form; and  (b) the form would have been a *request for Commonwealth assistance relating to the unit if it had been signed by a *responsible parent of the person; paragraph (1)(c) applies as if the form were the person’s request for Commonwealth assistance relating to the unit. Note: To be a request for Commonwealth assistance, a responsible parent must sign the form if the student is under 18 years old and subclause 88(3A) applies (see paragraph 88(3)(aa)). Inviting submissions before making a decision  (3) Before making a decision under subclause (1), the *Secretary must give the applicant and the *VET provider a notice in writing:  (b) describing the decision and stating the reasons why the Secretary is considering making it; and  (c) inviting the applicant and the VET provider to each make written submissions to the Secretary within 28 days on either or both of the following matters:  (i) why that decision should not be made;  (ii) if that decision would re‑credit the applicant’s *HELP balance with a particular amount—why that amount should be changed; and  (d) informing the applicant and the VET provider that, if no submissions are received within the 28 day period, the Secretary may proceed to make the decision.  (4) In deciding whether to make the decision under subclause (1), the *Secretary must consider any submissions received from the applicant, and from the *VET provider, within the 28 day period. Notice of a decision  (5) The *Secretary must give written notice of a decision under subclause (1) to the applicant and the *VET provider. The notice must be given within 28 days after the day the decision was made. 46AA  Re‑crediting a person’s HELP balance in relation to VET FEE‑HELP assistance—inappropriate conduct by provider or provider’s agent Re‑crediting  (1) The *Secretary may, on application under subclause (3) or on the Secretary’s own initiative, re‑credit a person’s *HELP balance with an amount equal to the amounts of *VET FEE‑HELP assistance that the person received for a *VET unit of study with a *VET provider, if the Secretary is satisfied that:  (a) either:  (i) the person has not completed the requirements for the unit during the period the person undertook, or was to undertake, the unit; or  (ii) under *VET Guidelines prescribed for the purposes of this subparagraph, the person is taken not to have completed those requirements during that period; and  (b) it is reasonably likely that, having regard to any matters prescribed by the *VET Guidelines for the purposes of this paragraph, the VET provider (or an agent of the VET provider) engaged in inappropriate conduct towards the person in relation to the unit, or the *VET course of study of which the unit forms a part. Note 1: A VET FEE‑HELP debt relating to a VET unit of study will be remitted if the HELP balance in relation to the unit is re‑credited: see section 137‑18. Note 2: The VET provider may be required to repay an amount to the Commonwealth under subclause 56(4), depending on the nature of the inappropriate conduct. Note 3: For certain VET FEE‑HELP debts relating to a VET unit of study, the amount to be re‑credited under this clause in relation to the unit may be reduced: see clause 51AA.  (2) The *VET Guidelines may prescribe matters for the purposes of paragraph (1)(b) that are also prescribed for the purposes of paragraph 46A(1)(c) (circumstances involving unacceptable conduct).  (3) A person may apply to the *Secretary for the person’s *HELP balance to be re‑credited under subclause (1). The application must:  (b) be in the form (if any) approved by the Secretary and accompanied by the information (if any) required by the Secretary; and  (c) meet any requirements prescribed by the *VET Guidelines for the purposes of this paragraph. Submissions by applicants before refusal to re‑credit  (4) Before making a decision to refuse a person’s application under subclause (3) for re‑crediting of the person’s *HELP balance, the Secretary must give the person a notice in writing:  (b) stating the reasons why the Secretary is considering making the decision; and  (c) inviting the person to make written submissions to the Secretary, within 28 days, about why that decision should not be made; and  (d) informing the person that, if no submissions are received within the 28 day period, the Secretary may proceed to make the decision.  (5) In deciding whether to re‑credit the *HELP balance, the *Secretary must take into account any submissions received from the person within the 28 day period. Submissions by providers before decision to re‑credit in circumstances requiring repayment by provider  (6) Before making a decision to re‑credit a person’s *HELP balance to which subclause 56(4) applies, the Secretary must give the *VET provider a notice in writing:  (b) stating that, if the Secretary makes the decision, the VET provider will be required to pay an amount to the Commonwealth under subclause 56(4) in relation to the re‑crediting; and  (c) stating the reasons why the Secretary is considering making the decision; and  (d) inviting the VET provider to make written submissions to the Secretary, within 28 days, about why that decision should not be made; and  (e) informing the VET provider that, if no submissions are received within the 28 day period, the Secretary may proceed to make the decision.  (7) In deciding whether to re‑credit the *HELP balance, the *Secretary must take into account any submissions received from the *VET provider within the 28 day period. Written notice of decision  (8) If the *Secretary re‑credits a person’s *HELP balance under subclause (1), the Secretary must, as soon as practicable, give written notice of the Secretary’s decision and the reasons for it to:  (a) the person; and  (b) if subclause 56(4) applies to the decision—the *VET provider. Final date for re‑crediting  (9) The *Secretary must not re‑credit a person’s *HELP balance under subclause (1) on the Secretary’s own initiative, after:  (a) 31 December 2020; or  (b) if a later day is prescribed by the *VET Guidelines for the purposes of this paragraph—that later day.  (10) The *Secretary must not re‑credit a person’s *HELP balance under subclause (1) on application made by the person, if the application is made after:  (a) 31 December 2020; or  (b) if a later day is prescribed by the *VET Guidelines for the purposes of this paragraph—that later day. 46B  Re‑crediting a person’s HELP balance in relation to VET FEE‑HELP assistance—VET FEE‑HELP account in deficit at the end of a calendar year Main case  (1) A *VET provider must, on the *Secretary’s behalf, re‑credit a student’s *HELP balance with an amount if:  (a) the student receives *VET FEE‑HELP assistance in a calendar year for a *VET unit of study undertaken with the VET provider; and  (b) under subclause 45E(1), the Secretary notifies the VET provider that the VET provider’s *VET FEE‑HELP account was in deficit at the end of the calendar year; and  (c) the VET provider reasonably believes that some or all of that assistance caused or contributed to the deficit.  (2) The amount to be re‑credited is equal to so much of that assistance as the *VET provider reasonably believes caused or contributed to the deficit. Note: A corresponding amount of the student’s VET FEE‑HELP debt relating to the unit will be remitted (see section 137‑18).  (3) The *Secretary may re‑credit the student’s *HELP balance under this subclause if:  (a) the *VET provider is unable to do so under subclauses (1) and (2); and  (b) the Secretary knows how much of that assistance that the VET provider reasonably believes caused or contributed to the deficit. If not all of the deficit can be re‑credited under subclauses (1) and (3)  (4) If the deficit exceeds the total amount able to be re‑credited under subclauses (1) and (3) for all of the *VET provider’s students who received *VET FEE‑HELP assistance in the calendar year for *VET units of study undertaken with the VET provider, the *Secretary may re‑credit the *HELP balance of each of those students with the amount equal to:  student’s percentage of the total assistance means the percentage equal to the percentage that the student’s *VET FEE‑HELP assistance referred to in paragraph (1)(a) is of the total VET FEE‑HELP assistance received by students of the *VET provider in the calendar year for *VET units of study undertaken with the VET provider.