Social Security (Approved Scholarship Courses) Determination 2020

The instrument relies on a set of cross-referenced definitions, each drawn from other Commonwealth legislation or from the Social Security Act itself. Accredited higher education course means a course accredited by TEQSA or, alternatively, a course conducted and accredited as a higher education course by a self-accrediting institution authorised by a law of the Commonwealth, a State or a Territory. This dual pathway captures both public universities and private providers that hold self-accrediting authority. Preparatory course means a course offered by a higher education institution that is designed to assist people to gain entry to higher education level courses, including enabling and bridging courses. The definition explicitly includes “enabling and bridging courses”, but those terms are not further defined. The crucial limitation is that the course must be offered by a higher education institution - a term defined in section 23 of the Social Security Act and generally referencing universities and other institutions that meet the definition in the Higher Education Support Act 2003 (HESA). Accelerator program course has the same meaning as in HESA. Under HESA, an accelerator program course is essentially a short, intensive course that is part of a bachelor degree and is designed to accelerate completion. The instrument does not replicate the HESA definition, so practitioners must consult that Act. Bridging study for overseas‑trained professionals is defined independently as occupation‑related subjects, courses, tuition or training programs necessary for an overseas‑trained professional to meet Australian entry requirements for their profession. This is a standalone definition not tied to any other Act, which creates some autonomy but also potential inconsistency. Masters qualifying course means an intermediate course required before commencing a Masters degree. VET course has the same meaning as in the National Vocational Education and Training Regulator Act 2011. The instrument also distinguishes between “higher education institution” (used in table items 1 and 2) and “higher education provider within the meaning of the Higher Education Support Act 2003” (used in items 3 and 4). This is a material distinction: not all higher education institutions are also higher education providers under HESA, because HESA registration requires specific approvals to receive Commonwealth funding. Consequently, an accelerator program course or a combined course under items 3 and 4 can only be provided by an entity that is a HESA provider, whereas an accredited higher education course or preparatory course under items 1 and 2 can be offered by a broader range of higher education institutions. The combined course at item 4 also introduces a procedural requirement: the course must be “identified as a combined course in the institution’s handbooks”. This handbook identification is a factual question that may require production of the institution’s official documents.

The primary group affected is students who receive a scholarship (however named) from an eligible provider and who are in receipt of, or applying for, means‑tested social security payments under the Social Security Act 1991. For these students, the determination determines whether the scholarship income is treated as exempt or concessional under the income test, or whether the course itself counts as approved study for the purposes of the activity test. The instrument indirectly affects scholarship providers - including universities, private donors, and government agencies - because the status of the course influences the financial position of scholarship recipients and may affect take-up rates for scholarships tied to particular courses. Education institutions are affected in that their accreditation arrangements and their classification as a “higher education institution” or “higher education provider” under HESA determine which of their courses can qualify. A university that is both a higher education institution and a HESA provider will be able to offer all four categories of courses; a private college that is a HESA provider but not a higher education institution (if such an entity exists) may be limited to items 3 and 4. The instrument also affects Services Australia decision-makers who must assess claims. The absence of a positive list of courses means that each assessment requires checking accreditation against TEQSA records, verifying provider status, and for combined courses, confirming handbook identification. This imposes an administrative cost that scales with case volume. International students on scholarships are not directly affected because most social security payments require Australian residency, but bridging study for overseas‑trained professionals may cover temporary visa holders who are permanent residents or certain other categories. The instrument does not affect students who pay their own fees or hold a scholarship for a course that does not meet the criteria; those students continue to be assessed under the general rules of the Social Security Act. The determination also affects the broader taxpayer, because the definitional scope determines how many scholarships are treated favourably, which in turn affects the fiscal cost of the social security system.

The determination does not impose any direct duties on individuals or institutions. It does not require anyone to apply, register, or report. Its function is to confer a right on a student to have a particular course recognised as an approved scholarship course, provided the course and provider satisfy the criteria in the table. That right is enforceable through the Social Security Act’s review mechanisms - an applicant who is refused a favourable assessment can seek internal review and then review by the Administrative Appeals Tribunal. The only implicit duty is on Services Australia to correctly apply the determination. For institutions, there is a de facto obligation to maintain accurate handbooks if they wish their combined courses to qualify under item 4(d) - but the determination does not mandate handbook content; it merely uses handbook identification as a criterion. If an institution does not identify a combined course in its handbooks, that course will not qualify even if it otherwise meets the other elements. Similarly, institutions that offer accelerator program courses must ensure they are registered as higher education providers under HESA; failing that, the course will not be an approved scholarship course. There is no duty on an institution to inform students about the instrument, though a prudent provider would do so. Students have no duty to proactively verify their course’s status, but they bear the practical risk of an adverse determination if they assume their course qualifies without checking. The instrument also creates no private right of action; any dispute is resolved through the social security appeals process rather than through the courts for breach of the determination itself.

The determination contains no penalty provisions. It is a purely definitional instrument. Enforcement of the underlying social security law - where false statements about course or scholarship status can lead to overpayments - occurs under the Social Security Act 1991 and the Criminal Code. A person who knowingly makes a false or misleading statement about whether their course is an approved scholarship course may be liable for administrative penalties (such as repayment of benefits and a non-compliance period) or for criminal prosecution for obtaining a financial advantage by deception. However, the determination itself imposes nothing. The most relevant enforcement risk is for Services Australia if it applies the determination incorrectly, leading to incorrect payments. That administrative error does not give rise to penalties against the agency but may result in debts being waived if the error was solely the Commonwealth’s fault. For institutions, there is no direct penalty for advertising a course as an approved scholarship course if it in fact does not meet the criteria, but such misrepresentation could attract action under the Australian Consumer Law or the Higher Education Support Act if it involves misleading conduct about the benefits of enrolment. The absence of penalties in this instrument is standard for definitional determinations; it does not mean the area is unenforceable, but enforcement is indirect.

The determination is made under subsection 592N(1) of the Social Security Act 1991 and must be read as part of that Act. Section 592N itself is not reproduced in the instrument, but its function is likely to allow the Minister to determine approved scholarship courses. The determination does not amend or repeal any provision of the Social Security Act. It interacts with several other Acts through its definitions. The term accredited higher education course draws from the Tertiary Education Quality and Standards Agency Act 2011 (TEQSA Act) and from laws of States and Territories that authorise self-accreditation. A course’s accreditation status under the TEQSA Act changes over time; if a course loses accreditation, it ceases to be an approved scholarship course under this determination without any amendment to the instrument itself. The term accelerator program course incorporates the Higher Education Support Act 2003 definition. Changes to HESA’s definition automatically flow into this determination. Similarly, VET course draws from the National Vocational Education and Training Regulator Act 2011. The instrument also references the Student Assistance Act 1973, specifically a legislative instrument made under section 5D of that Act, to exclude certain Masters level courses from the combined course prohibition in item 4(d). This creates a cross‑instrument dependency: a combined course that includes a Masters level component will be disqualified unless the Masters component is itself an approved Masters level course under the Student Assistance Act instrument. Practitioners dealing with combined courses at the Masters level must therefore consult two separate instruments. The determination does not interact with state or territory laws directly, except through the self‑accreditation provisions. It does not override or prevail over any other Commonwealth law; it sits as a subordinate instrument under the Social Security Act.

The instrument began as the Social Security (Approved Scholarship Courses) Determination 2020, registered on the Federal Register of Legislation. The source text provides no amendment history. It does not list previous versions, commencement dates, or amending instruments. As a legislative instrument, it may have been amended or replaced since 2020, but the text provided for this deep dive does not indicate any such changes. Under the Legislation Act 2003, the instrument would have commenced on the day after registration unless a later date is specified in the instrument itself; the instrument is silent on commencement, so the default rule applies. There is no evidence in the source of sunsetting, but as a legislative instrument it may sunset after 10 years under the Legislation Act unless remade. The determination replaced earlier determinations made under the same head of power, likely including the Social Security (Approved Scholarship Courses) Determination 2015 or similar, but no details are given. The instrument is subject to parliamentary disallowance under section 42 of the Legislation Act - a standard feature for such instruments. Any amendment to the table - adding or removing course categories or changing provider designations - would require a new amending instrument. Because the table is generic rather than listing specific courses by name, the instrument is relatively stable and does not need frequent updates to reflect new courses. However, changes to the definition of “accelerator program course” in the Higher Education Support Act 2003 could functionally amend this determination without any action by the Minister.

The source text contains no references to any court or tribunal decisions. There is no litigation history provided. This is unsurprising for a definitional instrument that has been in force only since 2020 and that operates at one remove from direct legal disputes. Most challenges to decisions under the determination would arise in the context of social security appeals, where an applicant disputes whether their course qualifies. Such appeals are heard by the Administrative Appeals Tribunal (AAT) and rarely produce named, published decisions that mention this instrument by name. Any reported case would be unusual given the instrument’s limited scope. The instrument itself has not been the subject of a judicial review application challenging its validity, though that possibility exists under the Administrative Decisions (Judicial Review) Act 1977 or the Constitution. No such cases are cited. The instrument’s reliance on definitions from other Acts could theoretically give rise to a dispute about the meaning of “accelerator program course” or “accredited higher education course”, but the source does not record any such contests. Without additional research beyond the source, it is impossible to provide further litigation detail. The absence of litigation history does not imply the instrument is never disputed; it may simply indicate that disputes are resolved at the internal review level.

Several traps lie in the instrument’s wording. First, the distinction between “higher education institution” (items 1 and 2) and “higher education provider within the meaning of the Higher Education Support Act 2003” (items 3 and 4) is easy to overlook but critical. A private college that is a HESA provider but not a “higher education institution” under the Social Security Act may not qualify for items 1 and 2, meaning its accredited higher education courses and preparatory courses are not approved scholarship courses. Conversely, a university that is a higher education institution but not a HESA provider (unlikely but possible for some specialised institutions) could offer items 1 and 2 but not items 3 or 4. Second, item 4(d) prohibits combined courses that include a Masters level component other than an approved Masters level course specified under the Student Assistance Act 1973 instrument. This means a combined bachelor/Masters program will not be an approved scholarship course unless the Masters part is separately listed. Many such programs would therefore be excluded. Third, the handbook identification requirement in item 4(c) is a factual condition: the combined course must be “identified as a combined course in the institution’s handbooks”. If the institution’s handbook refers to it as a “double degree” or “integrated program” rather than “combined course”, it may fail the criterion. Fourth, preparatory courses are only approved if offered by a higher education institution. Many bridging or enabling courses are offered by TAFEs or private VET providers that are not higher education institutions, and those courses do not qualify even if they are called “preparatory”. Fifth, the definition of bridging study for overseas‑trained professionals requires that the study is necessary for entry into the profession. This necessity test is subjective and may be disputed by Services Australia if the study is merely recommended rather than mandatory. Sixth, the instrument does not cover VET courses. Diplomas and advanced diplomas that are VET courses - even if offered by a university - are not approved under item 4(b)(vii)(A) and (B) because those subparagraphs exclude VET courses. A university offering a diploma that is accredited under the VET Quality Framework will not qualify. Seventh, there is no provision for courses provided online or by overseas institutions; the education institution must be a higher education institution or HESA provider, which implies an Australian entity. Eighth, the instrument does not define “scholarship” itself - that term is defined in the Social Security Act and may exclude certain grants or bursaries, meaning a student could hold an approved course scholarship but still not satisfy the scholarship definition under section 592N.

For a scholarship provider designing a scholarship program, compliance means ensuring that the course for which the scholarship is offered falls within one of the four table items and is provided by the correct category of institution. The provider should verify that the institution is either a “higher education institution” under the Social Security Act or a “higher education provider” under HESA, depending on the item. This can be checked against the TEQSA National Register or the HESA provider list maintained by the Department of Education. For item 4 combined courses, the provider should obtain a copy of the institution’s official handbook for the year of enrolment and confirm that the course is named as a combined course. If the course includes a Masters component, the provider must also check the legislative instrument under section 5D of the Student Assistance Act 1973 to see if that Masters level course is approved. For students or their advisers, the first step is to identify which table item the course matches. An accredited undergraduate degree at a university clearly falls under item 1. A bridging program for an overseas-trained professional offered by a university likely falls under item 2 (preparatory) or item 4 if part of a combined course. Any accelerator program must be checked against HESA. The most common compliance risk is assuming that any course at a university is automatically approved. The instrument excludes VET courses even if offered at a university, and excludes combined courses with unapproved Masters components. Services Australia may request documentation from the student, such as a handbook extract, TEQSA accreditation evidence, or a letter from the institution confirming the course’s classification. Scholarship recipients should retain such documents at the time of enrolment. Providers may also wish to include a clause in scholarship agreements that the scholarship is conditional on the course being an approved scholarship course, to avoid disputes if Services Australia later decides otherwise. For administrators within Services Australia, a compliance checklist should verify (1) the provider type; (2) the course type and level; (3) for item 4, handbook identification and absence of unapproved Masters; (4) for accelerator programs, HESA provider status; (5) for bridging study, necessity for professional entry. Given the instrument’s lack of a positive list, administrators must conduct a case‑by‑case assessment. This creates a modest but real administrative burden, and errors of classification are possible. The safest approach is to seek a written confirmation from the institution, though the institution is under no legal obligation to provide one.