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This is a Bill, not an Act. For current law, see the Acts databases.


EDUCATION SERVICES FOR OVERSEAS STUDENTS AMENDMENT (RE-REGISTRATION OF PROVIDERS AND OTHER MEASURES) BILL 2010

2008-2009
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Education Services for Overseas
Students Amendment (Re-registration of
Providers and Other Measures) Bill 2009
No. , 2009
(Education, Employment and Workplace Relations)
A Bill for an Act to amend the Education Services
for Overseas Students Act 2000, and for related
purposes
i Education Services for Overseas Students Amendment (Re-registration of Providers and
Other Measures) Bill 2009 No. , 2009
Contents
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
1
3 Schedule(s)
........................................................................................
2
Schedule 1--Re-registration etc. of providers
3
Part 1--Amendments
3
Education Services for Overseas Students Act 2000
3
Education Services for Overseas Students (Registration Charges) Act
1997
12
Part 2--Application provision
13
Schedule 2--Other matters
14
Education Services for Overseas Students Act 2000
14
Education Services for Overseas Students Amendment (Re-registration of Providers and Other
Measures) Bill 2009 No. , 2009 1
A Bill for an Act to amend the Education Services
1
for Overseas Students Act 2000, and for related
2
purposes
3
The Parliament of Australia enacts:
4
1 Short title
5
This Act may be cited as the Education Services for Overseas
6
Students Amendment (Re-registration of Providers and Other
7
Measures) Act 2009.
8
2 Commencement
9
This Act commences on the day this Act receives the Royal
10
Assent.
11
2 Education Services for Overseas Students Amendment (Re-registration of Providers and
Other Measures) Bill 2009 No. , 2009
3 Schedule(s)
1
Each Act that is specified in a Schedule to this Act is amended or
2
repealed as set out in the applicable items in the Schedule
3
concerned, and any other item in a Schedule to this Act has effect
4
according to its terms.
5
6
Re-registration etc. of providers Schedule 1
Amendments Part 1
Education Services for Overseas Students Amendment (Re-registration of Providers and Other
Measures) Bill 2009 No. , 2009 3
Schedule 1--Re-registration etc. of providers
1
Part 1--Amendments
2
Education Services for Overseas Students Act 2000
3
1 Paragraph 4B(2)(b)
4
Repeal the paragraph, substitute:
5
(b)
paragraph
9B(1)(a);
6
2 Section 5
7
Insert:
8
higher education provider has the same meaning as in the Higher
9
Education Support Act 2003.
10
3 Section 5 (at the end of the definition of registered)
11
Add ", and (except in sections 9 to 9B) includes re-registered under
12
section 9A".
13
4 Subparagraph 9(2)(b)(ii)
14
Repeal the subparagraph, substitute:
15
(ii) the provider would be exempt under subsection 24(2)
16
from paying annual Fund contributions if the provider
17
were a registered provider; and
18
5 Paragraph 9(2)(c)
19
Repeal the paragraph, substitute:
20
(c) the designated authority has given the Secretary a certificate,
21
in the form approved by the Secretary for the purposes of this
22
paragraph for the State, that:
23
(i) relates to the provider's compliance with the national
24
code; and
25
(ii) states that the provider has the principal purpose of
26
providing education; and
27
(iii) states that the provider has the clearly demonstrated
28
capacity to provide education of a satisfactory standard;
29
and
30
Schedule 1 Re-registration etc. of providers
Part 1 Amendments
4 Education Services for Overseas Students Amendment (Re-registration of Providers and
Other Measures) Bill 2009 No. , 2009
6 Paragraph 9(2)(ca)
1
Omit "subsection (5)", substitute "subsection 9B(1)".
2
7 Paragraph 9(2)(d)
3
Repeal the paragraph, substitute:
4
(d) the Secretary has no reason to believe that the provider:
5
(i) is not complying, or will not comply, with this Act or
6
the national code; or
7
(ii) does not have the principal purpose of providing
8
education; or
9
(iii) does not have the clearly demonstrated capacity to
10
provide education of a satisfactory standard; and
11
Note:
The Secretary must notify the relevant designated authority if the
12
Secretary has reason to believe that any of the matters set out in
13
this paragraph apply: see section 14.
14
8 Subsections 9(5) to (7)
15
Repeal the subsections.
16
9 Subsection 9(8)
17
Omit "Paragraph (2)(ca)", substitute "Subparagraph (2)(c)(i)".
18
10 At the end of section 9
19
Add:
20
Higher education providers
21
(9) For the purposes of subparagraphs (2)(c)(ii) and (2)(d)(ii), a higher
22
education provider is taken to have the principal purpose of
23
providing education if its principal purpose is either or both of the
24
following:
25
(a)
providing
education;
26
(b)
conducting
research.
27
11 After section 9
28
Insert:
29
Re-registration etc. of providers Schedule 1
Amendments Part 1
Education Services for Overseas Students Amendment (Re-registration of Providers and Other
Measures) Bill 2009 No. , 2009 5
9A Re-registering existing registered providers
1
Recommendation by designated authority
2
(1) A designated authority for a State may recommend that an
3
approved provider for that State that, as at the commencement of
4
this section, is registered to provide a specified course for that State
5
to overseas students be re-registered under this Act to provide that
6
course to overseas students.
7
Re-registration by Secretary
8
(2) The Secretary must re-register the provider if:
9
(a) the provider is:
10
(i) a resident of Australia; or
11
(ii) a Table C provider (within the meaning of the Higher
12
Education Support Act 2003); and
13
(b)
either:
14
(i) the provider has paid its annual Fund contribution (see
15
Part 5), and any special levy it is required to pay, for the
16
calendar year in which the recommendation under
17
subsection (1) is made; or
18
(ii) the provider is exempt under subsection 24(2) from
19
paying annual Fund contributions; and
20
(c)
either:
21
(i) the provider is a member of a tuition assurance scheme
22
that is established in accordance with the regulations
23
made for the purposes of paragraph 22(1)(a) and that
24
covers the course; or
25
(ii) the provider is exempt from the requirements of
26
section 22 under regulations made for the purposes of
27
subsection 22(3); and
28
(d) the designated authority has given the Secretary a certificate,
29
in the form approved by the Secretary for the purposes of this
30
paragraph for the State, that:
31
(i) relates to the provider's compliance with the national
32
code; and
33
(ii) states that the provider has the principal purpose of
34
providing education; and
35
Schedule 1 Re-registration etc. of providers
Part 1 Amendments
6 Education Services for Overseas Students Amendment (Re-registration of Providers and
Other Measures) Bill 2009 No. , 2009
(iii) states that the provider has the clearly demonstrated
1
capacity to provide education of a satisfactory standard;
2
and
3
(e) except in the case of a provider mentioned in subsection
4
9B(1)--the designated authority has told the Secretary in
5
writing that the provider has satisfied the designated
6
authority that the provider is fit and proper to be
7
re-registered; and
8
(f) the Secretary has no reason to believe that the provider:
9
(i) is not complying, or will not comply, with this Act or
10
the national code; or
11
(ii) does not have the principal purpose of providing
12
education; or
13
(iii) does not have the clearly demonstrated capacity to
14
provide education of a satisfactory standard; and
15
Note:
The Secretary must notify the relevant designated authority if the
16
Secretary has reason to believe that any of the matters set out in
17
this paragraph apply: see section 14.
18
(g) the provider is not liable for an annual registration charge or
19
late payment penalty that remains unpaid after it became due
20
for payment.
21
(3) The Secretary must not re-register the provider in any other
22
circumstances.
23
(4) Nothing in subsection (2) creates a duty for the Secretary to seek
24
any information about the matters mentioned.
25
(5) Subparagraph (2)(d)(i) does not apply when there is not a national
26
code in force.
27
Higher education providers
28
(6) For the purposes of subparagraphs (2)(d)(ii) and (2)(f)(ii), a higher
29
education provider is taken to have the principal purpose of
30
providing education if its principal purpose is either or both of the
31
following:
32
(a)
providing
education;
33
(b)
conducting
research.
34
Re-registration etc. of providers Schedule 1
Amendments Part 1
Education Services for Overseas Students Amendment (Re-registration of Providers and Other
Measures) Bill 2009 No. , 2009 7
9B Deciding whether a provider is a fit and proper person
1
(1) Paragraphs 9(2)(ca) and 9A(2)(e) do not apply in relation to the
2
following kinds of provider:
3
(a) a provider that is administered by a State education authority;
4
(b) any other provider that is entitled to receive funds under a
5
law of the Commonwealth for recurrent expenditure for the
6
provision of education or training, other than one excluded
7
by the regulations from the scope of this paragraph;
8
(c) any other provider specified in the regulations.
9
To avoid doubt, any private corporate body established in
10
connection with a provider covered by paragraph (a) or (b) is not
11
itself, by virtue of that connection alone, a provider covered by that
12
paragraph.
13
(2) In deciding whether it is satisfied as mentioned in paragraph
14
9(2)(ca) or 9A(2)(e), the designated authority must have regard to
15
whether a person to whom subsection (3) applies:
16
(a) has been convicted of an offence; or
17
(b) has ever had his, her or its registration cancelled or
18
suspended for any one or more courses for any one or more
19
States under this Act or the old ESOS Act; or
20
(c) has ever had an Immigration Minister's suspension certificate
21
issued in respect of him, her or it under this Act; or
22
(d) has ever had a condition imposed on his, her or its
23
registration under this Act; or
24
(e) has ever become bankrupt, applied to take the benefit of a
25
law for the benefit of bankrupt or insolvent debtors,
26
compounded with his or her creditors or assigned his or her
27
remuneration for the benefit of creditors; or
28
(f) has ever been disqualified from managing corporations under
29
Part 2D.6 of the Corporations Act 2001; or
30
(g) was involved in the business of the provision of courses by
31
another provider who is covered by any of the above
32
paragraphs at the time of any of the events that gave rise to
33
the relevant prosecution or other action;
34
and any other relevant matter.
35
(3) For the purposes of subsection (2), this subsection applies to the
36
following persons:
37
(a)
the
provider;
38
Schedule 1 Re-registration etc. of providers
Part 1 Amendments
8 Education Services for Overseas Students Amendment (Re-registration of Providers and
Other Measures) Bill 2009 No. , 2009
(b) an associate of the provider who has been, is or will be
1
involved in the business of the provision of courses by the
2
provider;
3
(c) a high managerial agent of the provider.
4
(4) Nothing in subsection (2) affects the operation of Part VIIC of the
5
Crimes Act 1914 (which deals with spent convictions).
6
12 After paragraph 10(4)(c)
7
Insert:
8
(ca) whether the provider has been re-registered under section 9A;
9
13 Section 12 (note 1)
10
After "registered", insert "under section 9".
11
14 Paragraph 14(1)(a)
12
Repeal the paragraph, substitute:
13
(a) the Secretary has reason to believe that an approved provider
14
who is not yet registered:
15
(i) is not complying, or will not comply, with this Act or
16
the national code; or
17
(ii) does not have the principal purpose of providing
18
education; or
19
(iii) does not have the clearly demonstrated capacity to
20
provide education of a satisfactory standard; and
21
Note:
The heading to section 14 is altered by adding at the end "etc.".
22
15 After subsection 14(1)
23
Insert:
24
(1A) For the purposes of subparagraph (1)(a)(ii), a higher education
25
provider is taken to have the principal purpose of providing
26
education if its principal purpose is either or both of the following:
27
(a)
providing
education;
28
(b)
conducting
research.
29
16 Section 40 (note)
30
After "section 9)", insert "or re-registration (see section 9A)".
31
17 Subsection 63(1) (note 1)
32
Re-registration etc. of providers Schedule 1
Amendments Part 1
Education Services for Overseas Students Amendment (Re-registration of Providers and Other
Measures) Bill 2009 No. , 2009 9
After "registered", insert "under section 9".
1
18 Section 64
2
Repeal the section, substitute:
3
64 Notifying the Secretary of the payment of annual Fund
4
contributions
5
First annual Fund contribution
6
(1) The Fund manager must notify the Secretary if a provider who is
7
not yet registered under section 9 has paid its first annual Fund
8
contribution.
9
Note:
The Secretary needs to know when this has happened so that the
10
provider can be registered under section 9: see paragraph 9(2)(b).
11
(2) A notification under subsection (1) must be given as soon as
12
practicable after the provider has paid its first annual Fund
13
contribution.
14
Annual Fund contributions for 2009 and 2010
15
(3) The Fund manager must notify the Secretary:
16
(a) if a registered provider paid its annual Fund contribution for
17
the calendar year beginning on 1 January 2009 before the
18
commencement of this subsection--that the registered
19
provider has paid its annual Fund contribution for that
20
calendar year; and
21
(b) if a registered provider has paid its annual Fund contribution
22
for:
23
(i) if paragraph (a) does not apply--the calendar year
24
beginning on 1 January 2009; and
25
(ii) the calendar year beginning on 1 January 2010.
26
Note:
The Secretary needs to know when this has happened so that the
27
provider can be re-registered under section 9A: see paragraph
28
9A(2)(b).
29
(4) A notification under paragraph (3)(a) must be given as soon as
30
practicable after the commencement of subsection (3).
31
Schedule 1 Re-registration etc. of providers
Part 1 Amendments
10 Education Services for Overseas Students Amendment (Re-registration of Providers and
Other Measures) Bill 2009 No. , 2009
(5) A notification under paragraph (3)(b) must be given as soon as
1
practicable after the registered provider has paid its annual Fund
2
contribution.
3
(6) Subparagraph (3)(b)(ii) does not apply in relation to a registered
4
provider if the provider is re-registered under section 9A before
5
1 January 2010.
6
19 Subsections 65(2), 66(4), 67(2) and 69(3) (notes)
7
After "registered", insert "under section 9".
8
20 At the end of Subdivision C of Division 4 of Part 5
9
Add:
10
74A Notifying the Secretary of the payment of special levies
11
(1) The Fund manager must notify the Secretary:
12
(a) if a registered provider paid an amount of special levy that
13
the provider is required to pay during the period beginning on
14
1 January 2009 and ending on the day before the day on
15
which this section commences--that the registered provider
16
paid the amount of special levy during that period; and
17
(b) if a registered provider has paid an amount of special levy
18
that the provider is required to pay during:
19
(i) the period beginning on the day on which this section
20
commences and ending at the end of 31 December
21
2009; and
22
(ii) the calendar year beginning on 1 January 2010.
23
Note:
The Secretary needs to know when this has happened so that the
24
provider can be re-registered under section 9A: see paragraph
25
9A(2)(b).
26
(2) A notification under paragraph (1)(a) must be given as soon as
27
practicable after the commencement of this section.
28
(3) A notification under paragraph (1)(b) must be given as soon as
29
practicable after the registered provider has paid the amount of
30
special levy.
31
(4) Subparagraph (1)(b)(ii) does not apply in relation to a registered
32
provider if the provider is re-registered under section 9A before
33
1 January 2010.
34
Re-registration etc. of providers Schedule 1
Amendments Part 1
Education Services for Overseas Students Amendment (Re-registration of Providers and Other
Measures) Bill 2009 No. , 2009 11
21 Subsection 83(1B)
1
Omit "subsection 9(5)) if the Minister (having regard to the matters
2
referred to in subsection 9(6))", substitute "subsection 9B(1)) if the
3
Minister (having regard to the matters referred to in subsection 9B(2))".
4
22 After subsection 83(1B)
5
Insert:
6
(1C) The Minister may also take one or more of those actions against a
7
registered provider if the Minister believes on reasonable grounds
8
that the registered provider:
9
(a) does not have the principal purpose of providing education;
10
or
11
(b) does not have the clearly demonstrated capacity to provide
12
education of a satisfactory standard.
13
Note:
Section 93 sets out the procedure for taking the action.
14
(1D) For the purposes of paragraph (1C)(a), a higher education provider
15
is taken to have the principal purpose of providing education if its
16
principal purpose is either or both of the following:
17
(a)
providing
education;
18
(b)
conducting
research.
19
23 Subsection 89A(1)
20
Omit "subsection 9(5)", substitute "subsection 9B(1)".
21
24 Subsection 89A(1)
22
Omit "subsection 9(6)", substitute "subsection 9B(2)".
23
25 At the end of Subdivision C of Division 1 of Part 6
24
Add:
25
92A Automatic cancellation for failure to re-register
26
The registration of a provider is cancelled for a course for a State
27
by force of this section if:
28
(a) that registration was in force immediately before the
29
commencement of this section; and
30
Schedule 1 Re-registration etc. of providers
Part 1 Amendments
12 Education Services for Overseas Students Amendment (Re-registration of Providers and
Other Measures) Bill 2009 No. , 2009
(b) the provider is not, on or before 31 December 2010,
1
re-registered under section 9A to provide the course for the
2
State.
3
92B Automatic cancellation if designated authority does not
4
recommend re-registration
5
(1) The registration of a provider is cancelled for a course for a State
6
by force of this subsection if the designated authority for the State
7
gives the Secretary a notice stating that the designated authority
8
does not recommend that the provider be re-registered under
9
section 9A to provide the course for the State.
10
(2) The notice must be in the form approved by the Secretary.
11
(3) The cancellation takes effect on the day of cancellation specified in
12
the notice.
13
26 Paragraph 176(1)(a)
14
After "section 9", insert "or re-registered under section 9A".
15
Education Services for Overseas Students (Registration
16
Charges) Act 1997
17
27 Subsection 6(1)
18
After "becoming registered", insert "under section 9 of the Education
19
Services for Overseas Students Act 2000".
20
28 Subsection 6(1) (at the end of the note)
21
Add "under that section".
22
29 Subsection 6(2)
23
After "registration", insert "under that section".
24
30 Subsection 6(2) (definition of remaining months)
25
After "registered", insert "under that section".
26
27
Re-registration etc. of providers Schedule 1
Application provision Part 2
Education Services for Overseas Students Amendment (Re-registration of Providers and Other
Measures) Bill 2009 No. , 2009 13
Part 2--Application provision
1
31 Application of amendments of section 9 to pending
2
matters
3
If:
4
(a) a designated authority for a State made a recommendation
5
relating to an approved provider under subsection 9(1) of the
6
Education Services for Overseas Students Act 2000 before
7
the commencement of this item; and
8
(b) the Secretary did not make a decision, before that
9
commencement, whether the provider should be registered
10
under section 9 of that Act;
11
that section as amended by this Act applies to the making of the
12
decision whether to register the provider under that section.
13
14
Schedule 2 Other matters
14 Education Services for Overseas Students Amendment (Re-registration of Providers and
Other Measures) Bill 2009 No. , 2009
Schedule 2--Other matters
1
2
Education Services for Overseas Students Act 2000
3
1 Section 5
4
Insert:
5
condition, in relation to the registration of a provider, means a
6
condition imposed on the registration under section 14A or
7
subsection 83(3).
8
2 Section 5
9
Insert:
10
modification, in relation to a condition on the registration of a
11
provider, includes addition, omission and substitution.
12
3 At the end of Part 2
13
Add:
14
14A Imposing conditions on registration of providers
15
(1)
If:
16
(a) the designated authority for a State has imposed a condition
17
on a provider relating to its provision of courses for the State
18
to overseas students; and
19
(b) the provider was not registered under section 9 at the time the
20
condition was imposed; and
21
(c) the provider subsequently becomes registered under that
22
section;
23
the Secretary may, at the time of registering the provider, impose
24
that condition, or that condition as modified under subsection (3)
25
of this section, on the provider's registration.
26
(2)
If:
27
(a) the designated authority for a State has imposed a condition
28
on a provider relating to its provision of courses for the State
29
to overseas students; and
30
(b) the provider was registered under section 9 at the time the
31
condition was imposed;
32
Other matters Schedule 2
Education Services for Overseas Students Amendment (Re-registration of Providers and Other
Measures) Bill 2009 No. , 2009 15
the Minister may, by notifying the provider in writing, impose that
1
condition, or that condition as modified under subsection (3) of this
2
section, on the provider's registration.
3
(3) The modifications that may be made to the condition imposed by
4
the designated authority on the provider are the following:
5
(a) if the condition imposed by the designated authority is not
6
limited to a specified period--a modification to limit the
7
condition imposed under this section to a specified period;
8
(b) if the condition imposed by the designated authority is
9
limited to a specified period--a modification to limit the
10
condition imposed under this section to a shorter specified
11
period;
12
(c) a modification to limit the circumstances in which the
13
condition imposed by the designated authority applies as a
14
condition imposed under this section.
15
(4) In deciding whether to impose a condition under this section, the
16
Secretary or Minister must have regard to any advice of the
17
designated authority.
18
4 After section 21
19
Insert:
20
21A Obligations relating to the agents of registered providers
21
(1) A registered provider must:
22
(a) maintain a list of all the provider's agents; and
23
(b) publish that list:
24
(i) on its website; and
25
(ii) in any other manner prescribed by the regulations; and
26
(c) comply with any requirements of regulations made for the
27
purposes of subsection (2).
28
Note:
The Minister may take action under Division 1 of Part 6 against a
29
registered provider that has breached this section.
30
(2) The regulations may prescribe requirements that registered
31
providers must comply with in relation to their agents.
32
5 After subsection 27(1)
33
Insert:
34
Schedule 2 Other matters
16 Education Services for Overseas Students Amendment (Re-registration of Providers and
Other Measures) Bill 2009 No. , 2009
(1A) If a registered provider for a course has changed to become an
1
entity of a different kind, the Minister may notify the provider in
2
writing that the course is not taken, for the purposes of
3
paragraph (1)(b), to have ceased to be provided merely because of
4
the change. The notice has effect accordingly.
5
(1B) In deciding whether to give the notice, the Minister must have
6
regard to:
7
(a) the effect of the change on the delivery of courses and
8
outcomes for students; and
9
(b) any advice of the designated authority for a State that
10
approved the provider as an approved provider for that State.
11
6 After subsection 31(4)
12
Insert:
13
(4A) The regulations may prescribe criteria to be applied in considering
14
whether a particular course is a suitable alternative course for the
15
purposes of this Act.
16
7 At the end of paragraph 76(1)(c)
17
Add "in accordance with subsection 31(4)".
18
8 Subsection 76(1) (note)
19
Repeal the note, substitute:
20
Note 1:
Section 31 sets out circumstances in which a provider is not required
21
to refund an amount under Division 2 of Part 3.
22
Note 2:
Subsection 31(4A) provides for regulations to prescribe criteria to be
23
applied in considering whether a particular course is a suitable
24
alternative course.
25
9 At the end of subsection 77(1)
26
Add:
27
Note:
Subsection 31(4A) provides for regulations to prescribe criteria to be
28
applied in considering whether a particular course is a suitable
29
alternative course.
30
10 Before paragraph 93(1)(a)
31
Insert:
32
(aa) to impose a condition under subsection 14A(2); or
33
Other matters Schedule 2
Education Services for Overseas Students Amendment (Re-registration of Providers and Other
Measures) Bill 2009 No. , 2009 17
11 Before subparagraph 93(1)(d)(i)
1
Insert:
2
(ia) if subsection 14A(2) applies--at least 72 hours; or
3
12 Subsection 94(1)
4
Omit "the Minister imposes a condition", substitute "a condition is
5
imposed".
6
13 Paragraph 95(1)(b)
7
Before "solicit", insert "subject to subsection (3),".
8
14 At the end of section 95
9
Add:
10
(3) The Minister may give to a provider whose registration is
11
suspended a notice in writing that:
12
(a) states that, for the whole period of the suspension,
13
paragraph (1)(b) does not apply to the provider in relation to
14
overseas students who have started the course; or
15
(b) states that, for a specified part of the period of the
16
suspension, paragraph (1)(b) does not apply to the provider in
17
relation to overseas students who have started the course.
18
The notice has effect accordingly.
19
(4) A notice under subsection (3) is not a legislative instrument.
20
15 After paragraph 176(1)(a)
21
Insert:
22
(aa) a decision to impose a condition on a provider's registration
23
under section 14A; or
24
(ab) a decision not to notify a registered provider under subsection
25
27(1A); or
26
16 At the end of subsection 176(1)
27
Add:
28
; or (d) a decision not to give a notice under subsection 95(3).
29

 


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