EDUCATION SERVICES FOR OVERSEAS STUDENTS LEGISLATION AMENDMENT (TUITION PROTECTION SERVICE AND OTHER MEASURES) BILL 2011

i Education Services for Overseas Students Legislation Amendment (Tuition Protection

Service and Other Measures) Bill 2011 No. , 2011

Contents

1 Short

title

...........................................................................................

2 Commencement

.................................................................................

3 Schedule(s)

........................................................................................

4 Regulations

........................................................................................

Schedule 1--Tuition protection service

Part 1--Main amendments

Education Services for Overseas Students Act 2000

Part 2--Consequential amendments

Education Services for Overseas Students Act 2000

Tertiary Education Quality and Standards Agency Act 2011

Part 3--Contingent amendments

Division 1--Amendment that will not commence if the Registration

Charges Acts commence first

Education Services for Overseas Students Act 2000

Division 2--Amendment commencing immediately after the later of

the commencement of Part 1 of this Schedule and the

Registration Charges Acts

Education Services for Overseas Students Act 2000

Part 4--Repeal of the Education Services for Overseas

Students (Assurance Fund Contributions) Act 2000

Education Services for Overseas Students (Assurance Fund

Contributions) Act 2000

Part 5--Application, saving and transitional provisions

Division 1--Introduction

Division 2--Defaults

Division 3--The old Fund and the OSTF

Division 4--The Fund Manager and the Contributions Review Panel

Division 5--Payment of TPS levies

Division 6--Miscellaneous

Schedule 2--National registration

Part 1--Main amendments

Education Services for Overseas Students Legislation Amendment (Tuition Protection Service and

Other Measures) Bill 2011 No. , 2011 ii

Education Services for Overseas Students Act 2000

Part 2--Consequential amendments

Education Services for Overseas Students Act 2000

Part 3--Contingent amendments

Division 1--Amendment that will not commence if the Registration

Charges Acts commence first

Education Services for Overseas Students Act 2000

Division 2--Amendments commencing immediately after the later of

the commencement of Part 2 of this Schedule and the

Registration Charges Acts

Education Services for Overseas Students Act 2000

Education Services for Overseas Students Amendment (Registration

Charges Consequentials) Act 2011

Education Services for Overseas Students (Registration Charges)

Amendment Act 2011

Division 3--Repeal of provisions if this Act commences before item 7

of Schedule 1 to the Registration Charges Acts

Education Services for Overseas Students Amendment (Registration

Charges Consequentials) Act 2011

Division 4--Repeal of provisions if this Act commences before other

items in the Registration Charges Acts

Education Services for Overseas Students Amendment (Registration

Charges Consequentials) Act 2011

Part 4--Application, saving and transitional provisions

Division 1--Definition of ESOS Act

Division 2--Application and transitional provisions for national

registration

Division 3--Other application, saving and transitional provisions

Schedule 3--Pre-paid fees

Part 1--Amendments

Division 1--Main amendments

Education Services for Overseas Students Act 2000

Division 2--Consequential amendment

Education Services for Overseas Students Act 2000

iii Education Services for Overseas Students Legislation Amendment (Tuition Protection

Service and Other Measures) Bill 2011 No. , 2011

Part 2--Application provision

Schedule 4--Tuition fees

Part 1--Amendments

Education Services for Overseas Students Act 2000

Part 2--Application provision

Schedule 5--Former accepted students

100

Part 1--Amendments

100

Education Services for Overseas Students Act 2000

100

Ombudsman Act 1976

100

Part 2--Application provision

102

Schedule 6--Record keeping requirements

103

Part 1--Amendments

103

Education Services for Overseas Students Act 2000

103

Part 2--Application and transitional provision

105

Schedule 7--Definition of designated authority

106

Part 1--Amendment that will not commence if the TEQSA

Consequential Act commences first

106

Education Services for Overseas Students Act 2000

106

Part 2--Amendment commencing immediately after the later

of Royal Assent and the commencement of the

TEQSA Consequential Act

107

Education Services for Overseas Students Act 2000

107

Part 3--Amendment commencing immediately after the

commencement of Division 2 of this Part

108

Education Services for Overseas Students Act 2000

108

Schedule 8--Miscellaneous

109

Part 1--Main amendments

109

Education Services for Overseas Students Act 2000

109

Education Services for Overseas Students Legislation Amendment (Tuition Protection Service and

Other Measures) Bill 2011 No. , 2011 1

A Bill for an Act relating to education services for

overseas students, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Education Services for Overseas

Students Legislation Amendment (Tuition Protection Service and

Other Measures) Act 2011.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

2 Education Services for Overseas Students Legislation Amendment (Tuition Protection

Service and Other Measures) Bill 2011 No. , 2011

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 4

and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Schedule 1,

Parts 1 and 2

The first 1 July that occurs on or after the

day this Act receives the Royal Assent.

3. Schedule 1,

Part 3, Division 1

The first 1 July that occurs on or after the

day this Act receives the Royal Assent.

However, if item 12 of Schedule 1 to the

Education Services for Overseas Students

Amendment (Registration Charges

Consequentials) Act 2011 commences at or

before that time, the provision(s) do not

commence at all.

4. Schedule 1,

Part 3, Division 2

The later of:

(a) immediately after the commencement of

the provision(s) covered by table item 2;

and

(b) immediately after the commencement of

item 12 of Schedule 1 to the Education

Services for Overseas Students

Amendment (Registration Charges

Consequentials) Act 2011.

However, the provision(s) do not commence

at all if the event mentioned in paragraph (b)

does not occur.

5. Schedule 1,

Parts 4 and 5

The first 1 July that occurs on or after the

day this Act receives the Royal Assent.

6. Schedule 2,

Parts 1 and 2

The first 1 July that occurs on or after the

day this Act receives the Royal Assent.

7. Schedule 2,

Part 3, Division 1

The first 1 July that occurs on or after the

day this Act receives the Royal Assent.

However, if item 10 of Schedule 1 to the

Education Services for Overseas Students

Amendment (Registration Charges

Consequentials) Act 2011 commences at or

Education Services for Overseas Students Legislation Amendment (Tuition Protection Service and

Other Measures) Bill 2011 No. , 2011 3

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

before that time, the provision(s) do not

commence at all.

8. Schedule 2,

Part 3, Division 2

The later of:

(a) immediately after the commencement of

the provision(s) covered by table item 6;

and

(b) immediately after the commencement of

Schedule 1 to the Education Services for

Overseas Students (Registration

Charges) Amendment Act 2011.

However, the provision(s) do not commence

at all if the event mentioned in paragraph (b)

does not occur.

9. Schedule 2,

Part 3, Division 3

Immediately before the commencement of

item 7 of Schedule 1 to the Education

Services for Overseas Students Amendment

(Registration Charges Consequentials) Act

2011.

However, if that item commences at the

same time as, or before, Part 2 of Schedule 2

to this Act, the provision(s) do not

commence at all.

10. Schedule 2,

Part 3, Division 4

Immediately before the commencement of

items 5, 6, 8 and 9 of Schedule 1 to the

Education Services for Overseas Students

Amendment (Registration Charges

Consequentials) Act 2011.

However, if those items commence at the

same time as, or before, Part 2 of Schedule 2

to this Act, the provision(s) do not

commence at all.

11. Schedule 2,

Part 4

The first 1 July that occurs on or after the

day this Act receives the Royal Assent.

12. Schedule 3,

Part 1, Division 1

The first 1 July that occurs on or after the

day this Act receives the Royal Assent.

13. Schedule 3,

Part 1, Division 2

Immediately after the commencement of the

provision(s) covered by table item 6.

4 Education Services for Overseas Students Legislation Amendment (Tuition Protection

Service and Other Measures) Bill 2011 No. , 2011

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

14. Schedule 3,

Part 2

The first 1 July that occurs on or after the

day this Act receives the Royal Assent.

15. Schedules 4

to 6

The first 1 July that occurs on or after the

day this Act receives the Royal Assent.

16. Schedule 7,

Part 1

The day this Act receives the Royal Assent.

However, if item 3 of Schedule 1 to the

Tertiary Education Quality and Standards

Agency (Consequential Amendments and

Transitional Provisions) Act 2011

commences before that time, the

provision(s) do not commence at all.

17. Schedule 7,

Part 2

The later of:

(a) the start of the day this Act receives the

Royal Assent; and

(b) immediately after the commencement of

item 3 of Schedule 1 to the Tertiary

Education Quality and Standards Agency

(Consequential Amendments and

Transitional Provisions) Act 2011.

18. Schedule 7,

Part 3

Immediately after the commencement of the

provision(s) covered by table item 17.

19. Schedule 8,

Part 1

The first 1 July that occurs on or after the

day this Act receives the Royal Assent.

20. Schedule 8,

Part 2

Immediately after the commencement of the

provision(s) covered by table item 6.

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

Education Services for Overseas Students Legislation Amendment (Tuition Protection Service and

Other Measures) Bill 2011 No. , 2011 5

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

4 Regulations

(1) The Governor-General may make regulations prescribing matters:

(a) required or permitted by this Act to be prescribed; or

(b) necessary or convenient to be prescribed for carrying out or

giving effect to this Act.

(2) In particular, regulations may be made prescribing matters of a

transitional nature (including prescribing any saving or application

provisions) relating to the amendments or repeals made by this

Act.

Schedule 1 Tuition protection service

Part 1 Main amendments

6 Education Services for Overseas Students Legislation Amendment (Tuition Protection

Service and Other Measures) Bill 2011 No. , 2011

Schedule 1--Tuition protection service

Part 1--Main amendments

Education Services for Overseas Students Act 2000

1 Part 5

Repeal the Part, substitute:

Part 5--Tuition protection service

Division 1--Guide to this Part

45 Guide to this Part

�

This Part sets out what happens when a registered provider or

an overseas student or intending overseas student defaults

(that is, when a provider fails to start or finish providing a

course to a student, or a student fails to start or finish a course

with a provider).

�

Division 2 sets out the obligation on registered providers to

provide refunds to students. In the case of a provider default, a

registered provider may instead provide alternative courses for

the students at the provider's expense.

�

If a provider defaults and fails to discharge its obligations to a

student under Division 2, then, under Division 3, the TPS

Director must provide the student with options for suitable

alternative courses (if any such courses are available).

�

Under Division 4, payments can be made out of the Overseas

Students Tuition Fund to refund students, and to reimburse

providers who provide students with alternative courses, when

a provider has failed to discharge its obligations. (This is

called making a call on the OSTF.)

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Other Measures) Bill 2011 No. , 2011 7

Division 2--Obligations on registered providers when a

provider or student defaults

Subdivision A--Provider defaults

46A When a registered provider defaults

(1) A registered provider defaults, in relation to an overseas student or

intending overseas student and a course at a location, if:

(a) either of the following occurs:

(i) the provider fails to start to provide the course to the

student at the location on the agreed starting day;

(ii) the course ceases to be provided to the student at the

location at any time after it starts but before it is

completed; and

(b) the student has not withdrawn before the default day.

Note:

For an exception to this rule, see subsection (3).

(2) To avoid doubt, a registered provider defaults if the provider is

prevented from providing a course at a location because a sanction

has been imposed on the provider under Part 6.

Ceasing to provide courses

(3) A registered provider does not default, in relation to an overseas

student or intending overseas student and a course at a location, if

the provider fails to start to provide the course, or the course ceases

to be provided, to the student because the student defaults in

relation to the course under paragraph 47A(1)(c).

(4) If a registered provider for a course for a location has changed to

become an entity of a different kind, the Minister may notify the

provider in writing that the course is not taken, for the purposes of

subparagraph (1)(a)(ii) of this section, to have ceased to be

provided at the location merely because of the change. The notice

has effect accordingly.

(5) In deciding whether to give the notice, the Minister must have

regard to:

(a) the effect of the change on the delivery of courses and

outcomes for students; and

Schedule 1 Tuition protection service

Part 1 Main amendments

8 Education Services for Overseas Students Legislation Amendment (Tuition Protection

Service and Other Measures) Bill 2011 No. , 2011

(b)

any advice of the relevant designated authority.

46B Registered providers to notify of provider default

(1) A registered provider must give notices in accordance with this

section if the provider defaults in relation to one or more overseas

students or intending overseas students and a course at a location.

Note:

The Minister may take action under Division 1 of Part 6 against a

registered provider that has breached this section.

Notifying Secretary and TPS Director

(2) The provider must notify, in writing, the Secretary and the TPS

Director of the default within 24 hours of the default occurring.

(3) The notice must include the following:

(a) the circumstances of the default;

(b) the details of the students in relation to whom the provider

has defaulted;

(i) whether the provider intends to discharge its obligations

to those students under section 46D; and

(ii) (if appropriate) how the provider intends to discharge

those obligations.

Notifying students

(4) The provider must also notify, in writing, of the default the

students in relation to whom the provider has defaulted.

Notice requirements

(5) A notice given under subsection (2) or (4) must comply with any

requirements of a legislative instrument made under subsection (6).

Legislative instrument

(6) The Minister may, by legislative instrument, specify requirements

for a notice given under this section.

Tuition protection service Schedule 1

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Education Services for Overseas Students Legislation Amendment (Tuition Protection Service and

Other Measures) Bill 2011 No. , 2011 9

Former registered providers

(7) This section continues to apply to a provider if the provider ceases

to be a registered provider.

46C Designated authorities to notify of provider default

A designated authority must notify the Secretary and the TPS

Director, in writing, as soon as practicable if the authority becomes

aware that a registered provider has defaulted, or is likely to

default.

46D Obligations on registered providers in case of provider default

(1) This section applies if a registered provider defaults in relation to

an overseas student or intending overseas student and a course at a

location.

(2) The provider must discharge its obligations to the student, in

accordance with subsection (3), within the period (the provider

obligation period) of 14 days after the default day.

Note:

For the consequences of breaching this section, see section 46E

(offence), Divisions 3 (student placement service) and 4 (calls on the

OSTF), and Division 1 of Part 6 (conditions, suspension and

cancellation).

(3) The provider discharges its obligations to the student if:

(a) both of the following apply:

(i) the provider arranges for the student to be offered a

place in a course in accordance with subsection (4);

(ii) the student accepts the offer in writing; or

(b) the provider provides a refund in accordance with

subsection (6).

Arranging alternative courses

(4) The provider may arrange for the student to be offered a place in

an alternative course at the provider's expense.

(5) The student may accept, in writing, the offer under subsection (4).

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10 Education Services for Overseas Students Legislation Amendment (Tuition Protection

Service and Other Measures) Bill 2011 No. , 2011

Providing a refund

(6) The provider may pay the student a refund of the amount, worked

out in accordance with any legislative instrument made under

subsection (7), of any unspent pre-paid fees received by the

provider in respect of the student.

Note:

For providers who are required to maintain an initial pre-paid fees

account, the refund might be paid out of the account: see section 29.

(7) The Minister may, by legislative instrument, specify a method for

working out the amount of unspent pre-paid fees for the purposes

of subsection (6).

Former registered providers

(8) This section continues to apply to a provider if the provider ceases

to be a registered provider.

46E Offence for failure to discharge obligations

(1) A person commits an offence if:

(a)

either:

(i) the person is a registered provider; or

(ii) if a registered provider is an unincorporated body--the

person is the principal executive officer of the provider;

and

(b) the person defaults in relation to an overseas student or

intending overseas student and a course at a location; and

accordance with section 46D (whether or not the provider is

still a registered provider at that time).

Penalty: 60 penalty units.

(2) An offence under subsection (1) is an offence of strict liability.

Note:

For strict liability, see section 6.1 of the Criminal Code.

(3) The maximum penalty for each day that an offence under

subsection (1) continues is 10% of the maximum penalty that can

be imposed in respect of that offence.

Note:

Subsection (1) is a continuing offence under section 4K of the Crimes

Act 1914.

Tuition protection service Schedule 1

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Education Services for Overseas Students Legislation Amendment (Tuition Protection Service and

Other Measures) Bill 2011 No. , 2011 11

46F Registered providers to notify of outcome of discharge of

obligations

(1) A registered provider that defaults, in relation to one or more

overseas students or intending overseas students and a course at a

location, must give a notice in accordance with this section.

Note:

The Minister may take action under Division 1 of Part 6 against a

registered provider that has breached this section.

(2) The provider must give a notice to the Secretary and the TPS

Director within 7 days after the end of the provider obligation

period.

Notice requirements

(3) The notice must include the following:

(a) whether the provider discharged its obligations to the

students in accordance with section 46D;

(b) if the provider arranged alternative courses:

(i) details of the students the provider arranged alternative

courses for; and

(ii) details of the courses arranged; and

(iii) evidence of each student's acceptance of an offer of a

place in an alternative course;

(i) details of the students the provider provided refunds to;

and

(ii)

details of the amounts of the refunds provided.

(4) The notice must comply with any requirements of a legislative

instrument made under subsection (5).

Legislative instrument

(5) The Minister may, by legislative instrument, specify requirements

for a notice given under this section.

Former registered providers

(6) This section continues to apply to a provider if the provider ceases

to be a registered provider.

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Part 1 Main amendments

12 Education Services for Overseas Students Legislation Amendment (Tuition Protection

Service and Other Measures) Bill 2011 No. , 2011

Subdivision B--Student defaults

47A When a student defaults

(1) An overseas student or intending overseas student defaults, in

relation to a course at a location, if:

(a) the course starts at the location on the agreed starting day, but

the student does not start the course on that day (and has not

previously withdrawn); or

(b) the student withdraws from the course at the location (either

before or after the agreed starting day); or

continue providing, the course to the student at the location

because of one or more of the following events:

(i) the student failed to pay an amount he or she was liable

to pay the provider, directly or indirectly, in order to

undertake the course;

(ii) the student breached a condition of his or her student

visa;

(iii) misbehaviour by the student.

Note:

For an exception to paragraph (1)(a), see subsection (2).

(2) An overseas student or intending overseas student does not default

under paragraph (1)(a) in relation to a course at a location if the

student does not start that course because the registered provider

defaults in relation to the course at the location under subparagraph

46A(1)(a)(i).

47B Requirement to make written agreement about student default

A registered provider must enter into a written agreement with

each overseas student or intending overseas student that:

(a) sets out the refund requirements that apply if the student

defaults in relation to a course at a location; and

(b) meets the requirements (if any) set out in the national code.

Note:

For the consequences of breaching this section, see section 47F

(offence) and Division 1 of Part 6 (conditions, suspension and

cancellation).

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Other Measures) Bill 2011 No. , 2011 13

47C Registered provider to notify of student default

(1) A registered provider must give a notice in accordance with this

section if an overseas student or intending overseas student

defaults in relation to a course provided by the provider at a

location.

Note:

The Minister may take action under Division 1 of Part 6 against a

registered provider that has breached this section.

(2) The provider must notify, in writing, the Secretary and the TPS

Director of the default within 24 hours of the default occurring.

(3) A notice given under this section must comply with any

requirements of a legislative instrument made under subsection (4).

(4) The Minister may, by legislative instrument, specify requirements

for a notice given under this section.

Former registered providers

(5) This section continues to apply to a provider if the provider ceases

to be a registered provider.

47D Refund under a written agreement about student default

(1) A registered provider must provide a refund under this section if an

overseas student or intending overseas student defaults in relation

to a course provided by the provider at a location.

Note 1:

A refund might not be required under this section if a student is

refused a student visa: see subsection (5).

Note 2:

For the consequences of breaching this section, see section 47G

(offence), Division 4 (calls on the OSTF) and Division 1 of Part 6

(conditions, suspension and cancellation).

Provider to pay refund

(2) The provider must pay a refund of the amount (if any) required by

the agreement entered into with the student under section 47B.

Note:

For providers who are required to maintain an initial pre-paid fees

account, the refund might be paid out of the account: see section 29.

(3) The provider must pay the refund to the following person:

(a)

the

student;

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14 Education Services for Overseas Students Legislation Amendment (Tuition Protection

Service and Other Measures) Bill 2011 No. , 2011

(b) if a person (other than the student) is specified in the

agreement to receive any refund under this section--the

specified person.

(4) The provider must pay the refund within the period (the provider

obligation period) of 4 weeks after receiving a written claim from

the student.

Exception--refusal of student visa

(5) A registered provider is not required to provide a refund under this

section if:

(a) the student was refused a student visa; and

(b) the refusal was a reason for one or more of the following acts

or omissions by the student that directly or indirectly caused

the student to default in relation to the course at the location:

(i) the student's failure to start the course at the location on

the agreed starting day;

(ii) the student's withdrawal from the course at that

location;

(iii) the student's failure to pay an amount he or she was

liable to pay the provider, directly or indirectly, in order

to undertake the course at that location.

Note:

A registered provider is required to provide a refund under

section 47E instead.

Former registered providers

(6) This section continues to apply to a provider if the provider ceases

to be a registered provider.

47E Refund in other cases

(1) A registered provider must provide a refund under this section if:

(a) an overseas student or an intending overseas student defaults

in relation to a course at a location; and

(b)

either:

(i) the provider has not entered into an agreement with the

student that meets the requirements of section 47B; or

Tuition protection service Schedule 1

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Other Measures) Bill 2011 No. , 2011 15

(ii) the provider is not required to pay a refund to the

student because of subsection 47D(5) (refusal of student

visa).

Note:

For the consequences of breaching this section, see section 47G

(offence), Division 4 (calls on the OSTF) and Division 1 of Part 6

(conditions, suspension and cancellation).

(2) The provider must pay the student a refund of the amount, worked

out in accordance with a legislative instrument made under

subsection (4), of any unspent pre-paid fees received by the

provider in respect of the student.

Note:

For providers who are required to maintain an initial pre-paid fees

account, the refund might be paid out of the account: see section 29.

(3) The provider must pay the refund within the period (the provider

obligation period) of 4 weeks after the default day.

Legislative instrument

(4) The Minister may, by legislative instrument, specify a method for

working out the amount of unspent pre-paid fees for the purposes

of subsection (2).

Former registered providers

(5) This section continues to apply to a provider if the provider ceases

to be a registered provider.

47F Offence for failure to enter agreement that complies with

requirements

(1) A person commits an offence if:

(a)

either:

(i) the person is a registered provider; or

(ii) if a registered provider is an unincorporated body--the

person is the principal executive officer of the provider;

and

(b) the person fails to enter into an agreement that complies with

the requirements of section 47B.

Penalty: 60 penalty units.

(2) An offence under subsection (1) is an offence of strict liability.

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16 Education Services for Overseas Students Legislation Amendment (Tuition Protection

Service and Other Measures) Bill 2011 No. , 2011

Note:

For strict liability, see section 6.1 of the Criminal Code.

(3) Section 4K of the Crimes Act 1914 (continuing offences) does not

apply in relation to an offence under subsection (1).

47G Offence for failure to provide refund

(1) A person commits an offence if:

(a)

either:

(i) the person is a registered provider; or

(ii) if a registered provider is an unincorporated body--the

person is the principal executive officer of the provider;

and

(b) an overseas student or intending overseas student defaults in

relation to a course at a location that is or was provided, or is

to be provided, by the person; and

accordance with section 47D or 47E (as the case requires)

(whether or not the provider is still a registered provider at

that time).

Penalty: 60 penalty units.

(2) An offence under subsection (1) is an offence of strict liability.

Note:

For strict liability, see section 6.1 of the Criminal Code.

(3) The maximum penalty for each day that an offence under

subsection (1) continues is 10% of the maximum penalty that can

be imposed in respect of that offence.

Note:

Subsection (1) is a continuing offence under section 4K of the Crimes

Act 1914.

47H Registered providers to notify of outcome of discharge of

obligations

(1) A registered provider must give a notice in accordance with this

section if an overseas student or intending overseas student

defaults in relation to a course provided by the provider at a

location.

Note:

The Minister may take action under Division 1 of Part 6 against a

registered provider that has breached this section.

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Other Measures) Bill 2011 No. , 2011 17

(2) The provider must give a notice to the Secretary and the TPS

Director within 7 days after the end of the provider obligation

period.

(3) The notice must include the following:

(a) whether the provider provided a refund under section 47D or

47E;

(b) details of the student the provider provided the refund to;

(4) The notice must comply with any requirements of a legislative

instrument made under subsection (5).

Legislative instrument

(5) The Minister may, by legislative instrument, specify requirements

for a notice given under this section.

Former registered providers

(6) This section continues to apply to a provider if the provider ceases

to be a registered provider.

Subdivision C--Recovering an amount

48 Recovering an amount

(1) An overseas student or intending overseas student may recover an

amount owing to the student under this Division as a debt by action

in a court of competent jurisdiction (unless subsection (2) applies).

Note:

This section is also affected by section 50C.

(2)

If:

(a) a registered provider (or former registered provider) owes an

amount to a student under section 47D; and

(b) a person (other than the student) is specified in the agreement

entered into between the provider and the student under

section 47B;

the specified person, rather than the student, may recover the

amount as a debt by action in a court of competent jurisdiction.

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(3) This Division does not affect any liability that a provider has apart

from this Division to pay an additional amount to the student.

Division 3--Student placement service

49 Student placement service

(1) This section applies if the TPS Director determines that:

(a) a registered provider (or former registered provider) has

defaulted in relation to an overseas student or intending

overseas student and a course at a location; and

(b)

either:

(i) the provider has failed to discharge its obligations under

section 46D to the student by the end of the provider

obligation period; or

(ii) the provider is unlikely to be able to discharge its

obligations under section 46D to the student by the end

of the provider obligation period.

Suitable alternative courses

(2) If any suitable alternative courses are available, the TPS Director

must provide, in writing, the student with one or more options for

such alternative courses.

Accepting an alternative course

(3) If a registered provider of an alternative course referred to in

subsection (2) offers the student a place in the course, the student

may accept the offer.

Note:

A call is made on the OSTF to pay the provider of the alternative

course: see Division 4.

(4) An acceptance must:

(a) be in writing; and

(b) be made within the period specified in subsection (5).

(5) For the purposes of subsection (4), the period is:

(a) the period of 30 days after the end of the provider obligation

period; or

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(b) if the TPS Director determines that exceptional

circumstances apply:

(i) any shorter period determined in writing by the TPS

Director; or

(ii) any longer period determined in writing by the TPS

Director, and agreed to by the student.

Legislative instrument

(6) The Minister may, by legislative instrument, specify criteria to be

applied in considering whether a particular course is a suitable

alternative course for the purposes of this Act.

Division 4--Calls on the OSTF

50A When a call is made on the OSTF

(1) This section sets out when a call is made on the OSTF.

Provider default, no place accepted by student

(2)

call is made on the OSTF if the TPS Director determines that:

(a) a registered provider has defaulted in relation to an overseas

student or intending overseas student and a course at a

location; and

(b) the provider has failed to discharge its obligations under

section 46D to the student by the end of the provider

obligation period; and

in accordance with section 49.

Provider default, place accepted by student

(3)

call is made on the OSTF if the TPS Director determines that:

(a) a registered provider has defaulted in relation to an overseas

student or intending overseas student and a course at a

location; and

(b) the provider has failed to discharge its obligations under

section 46D to the student by the end of the provider

obligation period; and

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accordance with section 49.

Student default, refund not provided by registered provider

(4)

call is made on the OSTF if the TPS Director determines that:

(a) a student has defaulted in relation to a course provided by a

registered provider at a location; and

(b) the provider fails to provide a refund in accordance with

section 47D or 47E (as the case requires) by the end of the

provider obligation period.

No call on the OSTF after a year

(5) A call is not made on the OSTF if the time when the TPS Director

becomes aware that the circumstances described in subsection (2),

(3) or (4) may exist is more than 12 months after the relevant

default day.

50B What the TPS Director must do when a call is made

TPS Director must pay amount

(1) If a call is made on the OSTF, then, as soon as practicable, the TPS

Director must pay out of the OSTF an amount equal to the amount

that the provider must still pay in order to satisfy the refund

requirements under Division 2.

Note:

The TPS Director pays the amount to the person specified in

subsection (3).

(2) If the student accepts a place in an alternative course in accordance

with section 49, the TPS Director may spend more than the amount

of that refund entitlement if the TPS Director considers that to do

so:

(a) would best protect the interests of the student; and

(b) would not jeopardise the sustainability of the OSTF.

Who TPS Director pays amount to

(3) The TPS Director must, in accordance with a legislative instrument

made under subsection (5), pay the amount to:

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(a) if the student has accepted a place in an alternative course in

accordance with section 49--the registered provider of that

course; and

(b) if a refund was required to be paid under section 47D, and a

person (other than the student) is specified in the agreement

made with the student under section 47B to receive any

refund under this section--the specified person; and

(c)

otherwise--the

student.

(4)

If:

(a) the TPS Director is required under subsection (3) to pay a

registered provider for providing an alternative course; and

(b) the amount required to be paid is more than the cost of the

course;

the TPS Director must pay the difference to the person specified in

paragraph (3)(b) or (c) (as the case requires).

Legislative instrument

(5) The Minister may, by legislative instrument, specify requirements

for payments made under this section.

50C Consequences of a payment under section 50B

Cessation of claim

(1)

If:

(a)

either:

(i) a registered provider defaults in relation to an overseas

student or intending overseas student and a course at a

location; or

(ii) an overseas student or intending overseas student

defaults in relation to a course provided by a registered

provider at a location; and

(b) the TPS Director pays an amount in accordance with

section 50B in relation to the student;

the student, and any person specified in paragraph 50B(3)(b), cease

to have any claim against the provider in respect of the student's

pre-paid fees.

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Provider must pay back TPS Director

(2) Instead, the provider must pay the TPS Director an amount equal to

the amount that the TPS Director paid under section 50B.

Note:

For providers who are required to maintain an initial pre-paid fees

account, the amount might be paid out of the account: see section 29.

(3) The TPS Director may recover that amount from the provider as a

debt due to the Commonwealth by action in a court of competent

jurisdiction.

TPS Director may enforce security

(4) If the provider had granted the TPS Director a charge or other

security over any of its assets, the TPS Director may enforce the

charge or security in satisfaction, or partial satisfaction, of the debt.

Former registered providers

(5) This section continues to apply to a provider if the provider ceases

to be a registered provider.

50D TPS Director to notify Immigration Secretary

(1) The TPS Director must notify the Immigration Secretary, in

accordance with a legislative instrument made under

subsection (3), as soon as practicable if the TPS Director provides

a refund to a person specified in paragraph 50B(3)(b) or (c).

Note 1:

This section constitutes authorisation for the purposes of other laws,

such as paragraph (1)(d) of Information Privacy Principle 11 in

section 14 of the Privacy Act 1988.

Note 2:

The Immigration Secretary's power under this section can be

delegated under section 170.

(2) The notice must include the name of the overseas student or

intending overseas student in relation to whom the refund was

provided.

(3) The Minister may, by legislative instrument, specify requirements

for a notice given under this section.

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50E Right to refund may be cancelled etc. without compensation

A right to be paid an amount under section 50B is granted on the

basis that:

(a) the right may be cancelled, revoked, terminated or varied by

or under later legislation; and

(b) no compensation is payable if the right is so cancelled,

revoked, terminated or varied.

Part 5A--Overseas Students Tuition Fund, the TPS

Director and the TPS Advisory Board

Division 1--Guide to this Part

51 Guide to this Part

�

This Part establishes the Overseas Students Tuition Fund, the

TPS Director and the TPS Advisory Board.

� Division

(a)

establishes the Overseas Students Tuition Fund

(the OSTF); and

(b)

sets out the money that goes into, and can be paid

out of, the OSTF; and

(c)

has rules relating to TPS levies.

The OSTF provides the money for refunds under Part 5 for

defaults where registered providers fail to discharge their

obligations to overseas students. The money in the OSTF is

mostly made up of the TPS levies collected from registered

providers each year.

�

Division 3 of this Part establishes the office of the TPS

Director, and his or her terms and conditions. The TPS

Director is responsible for:

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(a)

assisting students to find suitable alternative

courses, and providing refunds, in the case of

defaults; and

(b)

setting the amount of the TPS levy each year; and

(c)

managing the OSTF.

�

Division 4 establishes the TPS Advisory Board, the Board

members' terms and conditions, and how Board meetings are

to be conducted. The Board is responsible for providing

advice and making recommendations to the TPS Director on

setting the TPS levy each year.

Division 2--Overseas Students Tuition Fund and TPS

levies

Subdivision A--Overseas Students Tuition Fund

52A Name of Fund

(1) The Overseas Students Tuition Fund is established by this section.

(2) The Fund is a Special Account for the purposes of the Financial

Management and Accountability Act 1997.

52B Credits to the OSTF

There must be credited to the OSTF amounts equal to the

following:

(a) all amounts of TPS levy received from providers (see

section 24 and Subdivision B of this Division);

(b) all amounts recovered from providers under section 50C;

(d) any other money appropriated by the Parliament for the

purpose of the OSTF;

(e) any late payment penalty received by the TPS Director;

(f) amounts received by the Commonwealth for the purposes of

the OSTF.

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Note:

An Appropriation Act may contain a provision to the effect that, if any

of the purposes of a Special Account is a purpose that is covered by an

item in the Appropriation Act (whether or not the item expressly refers

to the Special Account), then amounts may be debited against the

appropriation for that item and credited to that Special Account.

52C Purposes of the OSTF

(1) The purposes of the OSTF are as follows:

(a) making payments as a result of calls being made on the

OSTF under Division 4 of Part 5;

(b) paying or discharging the costs, expenses and other

obligations incurred by the Commonwealth in the

performance of the TPS Director's functions, including in

managing the OSTF (subject to subsection (2)).

Note:

See section 21 of the Financial Management and Accountability Act

1997 (debits from Special Accounts).

(2) Paragraph (1)(b) does not include:

(a) paying any remuneration or allowances payable to the TPS

Director under this Act; or

(b) paying or discharging any costs, expenses or other

obligations associated with services provided to the TPS

Director by any employee or officer of the Department.

Subdivision B--TPS levies

53A TPS Director to set TPS levies

(1) For each calendar year, the TPS Director must determine the

amount of TPS levy required from each provider who is required to

pay a contribution.

(2) In doing so, the TPS Director must determine the amount in

accordance with the legislative instrument made under subsections

9(3) and 10(2) of the Education Services for Overseas Students

(TPS Levies) Act 2011 for that year.

53B Notice of amount of TPS levy

(1) The TPS Director must give a written notice to each provider who

is liable to pay a TPS levy stating:

(a) the amount of the provider's levy; and

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(b) if the provider is registered--the day by which the provider

must pay the levy.

Note 1:

There is no particular due day for unregistered providers, but they

cannot be registered under section 9AB until they have paid their

contribution: see paragraph 9AB(1)(d).

Note 2:

The provider may seek review of the amount of the TPS levy from the

AAT: see section 176.

(2) The day mentioned in paragraph (1)(b) of this section must be at

least 14 days after the notice is given to the provider.

53C Notifying the Secretary in relation to payment of TPS levy

Payment of first TPS levy

(1) The TPS Director must notify the Secretary if a provider who is not

yet registered under section 9AB has paid its first TPS levy.

Note:

The Secretary needs to know when this has happened so that the

provider can be registered under section 9AB: see paragraph

9AB(1)(d).

(2) A notification under subsection (1) must be given as soon as

practicable after the provider has paid the levy.

Non-payment of later TPS levies

(3) The TPS Director must notify the Secretary if a provider who is

registered under section 9AB has not paid a TPS levy for a year by

the end of the period referred to in paragraph 53D(2)(b).

53D Reminder notices

(1) The TPS Director must give a reminder notice to a registered

provider who has not paid an amount of TPS levy by the end of the

due day.

(2) The reminder notice must:

(a) specify the amount that is still owing; and

(b) state that the registered provider must pay the amount, along

with the associated late payment penalty, by the end of the

seventh day after the reminder notice is given to the provider;

and

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Note:

Section 90 provides that the provider's registration is automatically

suspended if the provider does not comply with the reminder notice.

(3) The TPS Director must tell the Secretary if the registered provider

fails to comply with the reminder notice.

Division 3--TPS Director

54A Appointment of TPS Director

(1) The TPS Director is to be appointed by the Minister by written

instrument.

Note:

The TPS Director is eligible for reappointment: see section 33AA of

the Acts Interpretation Act 1901.

(2) Before the Minister makes an appointment, the Minister may take

into account any recommendation of the Secretary in relation to the

appointment.

(3) The TPS Director holds office for the period specified in the

instrument of appointment. The period must not exceed 5 years.

(4) The TPS Director is to be appointed on a full-time basis.

54B Functions of the TPS Director

The TPS Director has the following functions:

(a) facilitating and monitoring the placement of overseas

students and intending overseas students in alternative

courses under section 49;

(b) determining whether a call is made on the OSTF under

section 50A;

(d) reporting to the Minister on:

(i) the operation of Part 5 (tuition protection service); and

(ii) the financial status of the OSTF;

(e) managing the OSTF in a way that ensures that it is able to

meet all its liabilities from time to time (including entering

into a loan agreement for the benefit of the OSTF);

(f) making the legislative instrument each year for the purposes

of subsections 9(3) and 10(2) of the Education Services for

Overseas Students (TPS Levies) Act 2011;

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(g) any other function conferred by this Act.

54C Remuneration and allowances

(1) The TPS Director is to be paid the remuneration that is determined

by the Remuneration Tribunal. If no determination of that

remuneration by the Tribunal is in operation, the TPS Director is to

be paid the remuneration that is prescribed by the regulations.

(2) The TPS Director is to be paid the allowances that are prescribed

by the regulations.

(3) This section has effect subject to the Remuneration Tribunal Act

1973.

54D Leave of absence

(1) The TPS Director has the recreation leave entitlements that are

determined by the Remuneration Tribunal.

(2) The Minister may grant the TPS Director leave of absence, other

than recreation leave, on the terms and conditions as to

remuneration or otherwise that the Minister determines.

54E Restrictions on outside employment

The TPS Director must not engage in paid employment outside the

duties of his or her office without the Minister's approval.

54F Disclosure of interests

The TPS Director must give written notice to the Minister of all

interests, pecuniary or otherwise, that the TPS Director has or

acquires that could conflict with the proper performance of the TPS

Director's functions.

54G Resignation

(1) The TPS Director may resign his or her appointment by giving the

Minister a written resignation.

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(2) The resignation takes effect on the day it is received by the

Minister or, if a later day is specified in the resignation, on that

later day.

54H Termination of appointment

(1) The Minister may terminate the appointment of the TPS Director

for:

(a)

misbehaviour;

(b) physical or mental incapacity.

(2) The Minister may terminate the appointment of the TPS Director

if:

(a) the TPS Director:

(i) becomes bankrupt; or

(ii) applies to take the benefit of any law for the relief of

bankrupt or insolvent debtors; or

(iii) compounds with his or her creditors; or

(iv) makes an assignment of his or her remuneration for the

benefit of his or her creditors; or

(b) the TPS Director is absent, except on leave of absence, for 14

consecutive days or for 28 days in any 12 months; or

approval, in paid employment outside the duties of his or her

office (see section 54E); or

(d) the TPS Director fails, without reasonable excuse, to comply

with section 54F (disclosure of interests).

54J Other terms and conditions

The TPS Director holds office on the terms and conditions (if any)

in relation to matters not covered by this Division that are

determined by the Minister.

54K Acting TPS Director

The Minister may appoint a person to act as the TPS Director:

(a) during a vacancy in the office of the TPS Director (whether

or not an appointment has previously been made to the

office); or

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(b) during any period, or during all periods, when the TPS

Director is absent from duty or from Australia, or is, for any

reason, unable to perform the duties of the office.

Note:

For rules that apply to acting appointments, see section 33A of the

Acts Interpretation Act 1901.

54L Consultants

The TPS Director may, on behalf of the Commonwealth, engage

consultants to assist in the performance of the TPS Director's

functions.

54M Indemnity

(1) The TPS Director is not personally subject to any liability to any

person (other than the Commonwealth) in respect of anything

done, or omitted to be done, in good faith in the exercise or

performance of powers or functions under this Act or the

Education Services for Overseas Students (TPS Levies) Act 2011.

(2) However, this section does not affect the operation of the Privacy

Act 1988.

Division 4--TPS Advisory Board

Subdivision A--Appointment of Board members

55A Establishment

The TPS Advisory Board is established by this section.

55B Function of the Board

The Board's function is, either on its own initiative or at the

request of the TPS Director, to provide advice and make

recommendations to the TPS Director in relation to the making of a

legislative instrument each year under subsections 9(3) and 10(2)

of the Education Services for Overseas Students (TPS Levies) Act

2011.

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55C Membership

(1) The Board consists of the following members:

(a) a representative from each of the following agencies:

(i)

the

Department;

(ii) the Department whose Minister administers the

Financial Management and Accountability Act 1997;

(iii) the Department administered by the Immigration

Minister;

(iv) the Australian Government Actuary;

(v) the Australian Prudential Regulation Authority;

(b) up to 7 other members.

Requirements for Board members appointed under

paragraph (1)(b)

(2) A person is not eligible for appointment as a Board member under

paragraph (1)(b) unless the Minister is satisfied that he or she has

qualifications or experience that the Minister considers relevant to

the performance of the Board's function.

Chair and Deputy Chair

(3) The Minister must appoint, in writing, one of the Board members

to be the Chair, and another Board member to be the Deputy Chair.

55D Appointment of Board members

(1) Board members are to be appointed by the Minister by written

instrument.

Note:

Board members are eligible for reappointment: see section 33AA of

the Acts Interpretation Act 1901.

(2) A Board member holds office for the period specified in the

instrument of appointment. The period must not exceed 2 years.

(3) A Board member is to be appointed on a part-time basis.

55E Remuneration and allowances

(1) A Board member appointed under paragraph 55C(1)(b) is to be

paid the remuneration that is determined by the Remuneration

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Tribunal. If no determination of that remuneration by the Tribunal

is in operation, such a Board member is to be paid the

remuneration that is prescribed by the regulations.

(2) A Board member appointed under paragraph 55C(1)(b) is to be

paid the allowances that are prescribed by the regulations.

(3) This section has effect subject to the Remuneration Tribunal Act

1973.

55F Leave of absence

Chair

(1) The Minister may grant leave of absence to the Chair on the terms

and conditions that the Minister determines.

Other members

(2) The Chair may grant leave of absence to any other Board member

on the terms and conditions that the Chair determines.

55G Restrictions on outside employment

A Board member must not engage in any paid employment that, in

the Minister's opinion, conflicts or may conflict with the proper

performance of his or her duties.

55H Disclosure of interests

A Board member must give written notice to the Minister of all

interests, pecuniary or otherwise, that the member has or acquires

that could conflict with the proper performance of the member's

functions.

55J Disclosure of interests to the Board

(1) A Board member who has an interest, pecuniary or otherwise, in a

matter being considered or about to be considered by the Board

must disclose the nature of the interest to a meeting of the Board.

(2) The disclosure must be made as soon as possible after the relevant

facts have come to the Board member's knowledge.

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(3) The disclosure must be recorded in the minutes of the meeting of

the Board.

(4) Unless the Board determines otherwise, the Board member:

(a) must not be present during any deliberation by the Board on

the matter; and

(b) must not take part in any decision of the Board with respect

to the matter.

(5) In addition, the Board member:

(a) must not be present during any deliberation of the Board for

the purpose of making a determination under subsection (4);

and

(b) must not take part in making the determination.

(6) A determination under subsection (4) must be recorded in the

minutes of the meeting of the Board.

55K Resignation

(1) A Board member may resign his or her appointment by giving the

Minister a written resignation.

(2) The Chair or Deputy Chair may resign his or her appointment as

the Chair or Deputy Chair (as the case requires) without resigning

his or her appointment as a Board member.

(3) A resignation takes effect on the day it is received by the Minister

or, if a later day is specified in the resignation, on that later day.

55L Termination

(1) The Minister may terminate the appointment of a Board member

for:

(a)

misbehaviour;

(b) physical or mental incapacity.

(2) The Minister may terminate the appointment of a Board member if:

(a)

the

Board

member:

(i) becomes bankrupt; or

(ii) applies to take the benefit of any law for the relief of

bankrupt or insolvent debtors; or

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(iii) compounds with his or her creditors; or

(iv) makes an assignment of his or her remuneration for the

benefit of his or her creditors; or

(b) the Board member is absent, except on leave of absence,

from 2 consecutive meetings of the Board; or

Minister's opinion, conflicts or may conflict with the proper

performance of his or her duties (see section 55G); or

(d) the Board member fails, without reasonable excuse, to

comply with section 55H or 55J (disclosure of interests).

55M Other terms and conditions

A Board member holds office on the terms and conditions (if any)

in relation to matters not covered by this Division that are

determined by the Minister.

55N Acting appointments

Acting Board member

(1) The Minister may appoint a person to act as a Board member:

(a) during a vacancy in the office of the Board member, whether

or not an appointment has previously been made to the

office; or

(b) during any period, or during all periods, when the Board

member:

(i) is absent from duty or from Australia; or

(ii) is, for any reason, unable to perform the duties of the

office.

Note:

For rules that apply to acting appointments, see section 33A of the

Acts Interpretation Act 1901.

Acting Chair

(2) The Minister may appoint a Board member to act as the Chair if

the Deputy Chair is unable to act as the Chair:

(a) during a vacancy in the office of the Chair, whether or not an

appointment has previously been made to the office; or

(b) during any period, or during all periods, when the Chair:

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(i) is absent from duty or from Australia; or

(ii) is, for any reason, unable to perform the duties of the

office.

Subdivision B--Meetings of the TPS Advisory Board

56A Convening meetings

(1) The Board must hold the meetings that are necessary for the

efficient performance of its function.

(2) Meetings are to be held at the times and places that the Chair

determines.

Note:

See also section 33B of the Acts Interpretation Act 1901, which

contains extra rules about meetings by telephone etc.

(3)

The

Chair:

(a) may convene a meeting; and

(b) must convene at least 2 meetings each calendar year; and

(i) 7 or more other Board members; or

(ii)

the

Minister.

56B Presiding at meetings

(1) The Chair must preside at all meetings at which he or she is

present.

(2) If the Chair is not present at a meeting, the Deputy Chair must

preside.

56C Quorum

(1) At a meeting of the Board, a quorum is constituted by 6 Board

members, one of whom must be either the Chair or the Deputy

Chair.

(2)

However,

if:

(a) section 55J prevents a Board member from participating in

the deliberations or decisions of the Board with respect to a

particular matter; and

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(b) when the Board member leaves the meeting concerned there

is no longer a quorum present; and

meeting;

the remaining Board members at the meeting constitute a quorum

for the purpose of any deliberation or decision at that meeting with

respect to that matter.

56D Voting at meetings

(1) A question arising at a meeting is to be determined by a majority of

the votes of the Board members present and voting.

(2) The person presiding at a meeting has a deliberative vote and, in

the event of an equality of votes, a casting vote.

56E Conduct of meetings

The Board may regulate proceedings at its meetings as it considers

appropriate.

56F Minutes

The Board must keep minutes of its meetings.

56G Decisions without meetings

(1) The Board is taken to have made a decision at a meeting if:

(a) without meeting, a majority of the Board members entitled to

vote on the proposed decision indicate agreement with the

decision; and

(b) that agreement is indicated in accordance with the method

determined by the Board under subsection (2); and

decision, or reasonable efforts were made to inform all the

members of the proposed decision.

(2) Subsection (1) applies only if the Board:

(a) has determined that it may make decisions of that kind

without meeting; and

Tuition protection service Schedule 1

Main amendments Part 1

Education Services for Overseas Students Legislation Amendment (Tuition Protection Service and

Other Measures) Bill 2011 No. , 2011 37

(b) has determined the method by which Board members are to

indicate agreement with proposed decisions.

(3) For the purposes of paragraph (1)(a), a Board member is not

entitled to vote on a proposed decision if the Board member would

not have been entitled to vote on that proposal if the matter had

been considered at a meeting of the Board.

(4) The Board must keep a record of decisions made in accordance

with this section.

Schedule 1 Tuition protection service

Part 2 Consequential amendments

38 Education Services for Overseas Students Legislation Amendment (Tuition Protection

Service and Other Measures) Bill 2011 No. , 2011

Part 2--Consequential amendments

Education Services for Overseas Students Act 2000

2 Paragraph 4A(a)

Omit "financial and tuition assurance to", substitute "tuition assurance,

and refunds, for".

3 Paragraphs 4B(2)(c) and (e)

Repeal the paragraphs.

4 Section 5

Insert:

agreed starting day for a course means the day on which the

course was scheduled to start, or a later day agreed between the

registered provider for the course and the student.

5 Section 5 (definition of annual Fund contribution)

Repeal the definition.

6 Section 5

Insert:

Board means the TPS Advisory Board established by section 55A.

7 Section 5

Insert:

Board member means a member of the Board appointed under

section 55D, including the Chair and the Deputy Chair.

8 Section 5

Insert:

call: a call is made on the OSTF in the circumstances set out in

section 50A.

9 Section 5 (definition of contributions criteria)

Repeal the definition.

Tuition protection service Schedule 1

Consequential amendments Part 2

Education Services for Overseas Students Legislation Amendment (Tuition Protection Service and

Other Measures) Bill 2011 No. , 2011 39

10 Section 5

Insert:

default:

(a) in relation to a registered provider--has the meaning given

by section 46A; and

(b) in relation to an overseas student or intending overseas

student--has the meaning given by section 47A.

11 Section 5

Insert:

default day, in relation to a default, means:

(a) if subparagraph 46A(1)(a)(i) or paragraph 47A(1)(a)

applies--the agreed starting day; or

(b) if subparagraph 46A(1)(a)(ii) applies--the day on which the

course ceases to be provided; or

withdraws from the course; or

(d) if paragraph 47A(1)(c) applies--the day on which the

registered provider of the course refuses to provide, or

continue providing, the course to the student.

12 Section 5 (definition of Fund)

Repeal the definition.

13 Section 5 (definition of Fund Manager)

Repeal the definition.

14 Section 5

Insert:

Immigration Secretary means the Secretary of the Department

administered by the Immigration Minister.

15 Section 5

Insert:

OSTF: see Overseas Students Tuition Fund.

Schedule 1 Tuition protection service

Part 2 Consequential amendments

40 Education Services for Overseas Students Legislation Amendment (Tuition Protection

Service and Other Measures) Bill 2011 No. , 2011

16 Section 5

Insert:

Overseas Students Tuition Fund means the Overseas Students

Tuition Fund established under section 52A.

17 Section 5 (definition of Panel)

Repeal the definition.

18 Section 5

Insert:

provider obligation period, in relation to a default, has the meaning

given by section 46D, 47D or 47E (as the case requires).

19 Section 5 (definition of special levy)

Repeal the definition.

20 Section 5

Insert:

TPS levy means a TPS levy that a provider is required to pay to the

TPS Director under paragraph 9AB(1)(d) or subsection 24(1).

21 Section 5 (definition of tuition assurance scheme)

Repeal the definition.

22 Section 13

Repeal the section, substitute:

13 TPS Director may require information

(1) The TPS Director may request a provider who is not yet registered

to give the TPS Director information that is relevant to determining

the provider's amount of TPS levy at any time before the Secretary

registers the provider under section 9AB.

Note:

A person could be guilty of an offence if the person provides false or

misleading information in complying or purporting to comply with

this section: see section 108.

Tuition protection service Schedule 1

Consequential amendments Part 2

Education Services for Overseas Students Legislation Amendment (Tuition Protection Service and

Other Measures) Bill 2011 No. , 2011 41

(2) The TPS Director does not have to determine the amount of the

provider's TPS levy under section 53A until the provider complies

with the request.

23 Section 22

Repeal the section.

24 Sections 24 and 25

Repeal the sections, substitute:

24 TPS levies

(1) A registered provider must pay a TPS levy for each calendar year.

Note:

Subdivision B of Division 2 of Part 5A, and the Education Services

for Overseas Students (TPS Levies) Act 2011, have details about how

amounts of TPS levy are determined.

(2) A registered provider who is required to pay an amount of TPS

levy for a calendar year must pay it to the TPS Director by the day

stated in the notice that the TPS Director gives the provider under

section 53B.

Note:

The Minister may take action under Division 1 of Part 6 against a

registered provider that has breached this section.

25 Section 26

Repeal the section, substitute:

26 Disclosure obligations of registered providers

(1) A registered provider who is required to pay a TPS levy for a year

must tell the TPS Director as soon as practicable of any matter that

might cause the TPS Director to increase the amount of levy the

provider would be required to pay for that or a later year.

(2) The obligation in subsection (1) continues to apply even after the

registered provider has paid its TPS levy for the year.

TPS Director may request information

(3) At any time, the TPS Director may request a registered provider to

give the TPS Director information that is relevant to determining

Schedule 1 Tuition protection service

Part 2 Consequential amendments

42 Education Services for Overseas Students Legislation Amendment (Tuition Protection

Service and Other Measures) Bill 2011 No. , 2011

the provider's amount of TPS levy. The provider must comply with

the request.

Note 1:

The Minister may take action under Division 1 of Part 6 against a

registered provider that has breached this section.

Note 2:

It is an offence to provide false or misleading information in

complying or purporting to comply with this section: see section 108.

26 Division 2 of Part 3

Repeal the Division.

27 Paragraph 90(1)(a)

Omit "section 75", substitute "section 53D".

28 Paragraphs 106(1A)(e) and (f)

Repeal the paragraphs, substitute:

(e) section 46E; or

(f) section 47F; or

(g)

section

47G.

29 Paragraph 108(a)

Omit "fund manager", substitute "TPS Director".

30 After section 170A

Insert:

170B Annual report

(1) After the end of each financial year, the TPS Director must prepare

and give to the Minister a report in relation to the following:

(a) the financial status of the OSTF during that financial year;

(b) the number of students placed in alternative courses under

section 49 during that financial year;

(d) the number of calls made on the OSTF during that financial

year;

(e) the time taken to pay an amount under section 50B during

that financial year;

Tuition protection service Schedule 1

Consequential amendments Part 2

Education Services for Overseas Students Legislation Amendment (Tuition Protection Service and

Other Measures) Bill 2011 No. , 2011 43

(f) the total of any amounts paid out under section 50B during

that financial year;

(g) an assessment of any issues affecting the operation of Part 5

(tuition protection service) during that financial year;

(h) an assessment of any issues that might affect the operation of

Part 5 in future financial years;

(i) an assessment of the outlook of the industry that provides

courses to overseas students, and any potential risk to the

OSTF as a result of that outlook.

(2) The report must be included in the Department's annual report for

that financial year.

31 At the end of section 170

Add:

Immigration Secretary

(5) The Immigration Secretary may, by signed writing, delegate his or

her power under section 50D (TPS Director to notify Immigration

Secretary) to an SES employee or acting SES employee in the

Department administered by the Immigration Minister.

32 Paragraph 172(1)(c)

Repeal the paragraph, substitute:

33 Paragraph 173(1)(c)

Repeal the paragraph, substitute:

34 Subsection 173(2)

Omit "the Fund, the Fund Manager", substitute "the OSTF, the TPS

Director".

35 Section 174

Omit "(Assurance Fund Contributions) Act 2000", substitute "(TPS

Levies) Act 2011".

36 Subsection 175(1) (heading)

Schedule 1 Tuition protection service

Part 2 Consequential amendments

44 Education Services for Overseas Students Legislation Amendment (Tuition Protection

Service and Other Measures) Bill 2011 No. , 2011

Repeal the heading, substitute:

Giving information to government agencies, the TPS Director etc.

37 Paragraphs 175(1)(f) and (g)

Repeal the paragraphs, substitute:

(f) the TPS Director; or

(g) a Board member; or

38 Before paragraph 176(1)(b)

Insert:

(af) a decision not to notify a registered provider under subsection

46A(4); or

(ag) a decision under section 53A as to an amount of TPS levy to

be paid by a provider; or

Tertiary Education Quality and Standards Agency Act 2011

39 Paragraph 189(1)(e)

Omit "the Fund Manager, or the operator of an applicable tuition

assurance scheme,", substitute "the TPS Director,".

Tuition protection service Schedule 1

Contingent amendments Part 3

Education Services for Overseas Students Legislation Amendment (Tuition Protection Service and

Other Measures) Bill 2011 No. , 2011 45

Part 3--Contingent amendments

Division 1--Amendment that will not commence if the

Registration Charges Acts commence first

Education Services for Overseas Students Act 2000

40 Section 90 (heading)

Omit "annual Fund contribution, special levy", substitute "TPS

levy".

Division 2--Amendment commencing immediately after

the later of the commencement of Part 1 of this

Schedule and the Registration Charges Acts

Education Services for Overseas Students Act 2000

41 Section 90 (heading)

Omit "contribution,".

Schedule 1 Tuition protection service

Part 4 Repeal of the Education Services for Overseas Students (Assurance Fund

Contributions) Act 2000

46 Education Services for Overseas Students Legislation Amendment (Tuition Protection

Service and Other Measures) Bill 2011 No. , 2011

Part 4--Repeal of the Education Services for

Overseas Students (Assurance Fund

Contributions) Act 2000

Education Services for Overseas Students (Assurance Fund

Contributions) Act 2000

42 The whole of the Act

Repeal the Act.

Tuition protection service Schedule 1

Application, saving and transitional provisions Part 5

Education Services for Overseas Students Legislation Amendment (Tuition Protection Service and

Other Measures) Bill 2011 No. , 2011 47

Part 5--Application, saving and transitional

provisions

Division 1--Introduction

43 Definitions

In this Part:

asset means:

(a) any legal or equitable estate or interest in real or personal

property, whether actual, contingent or prospective; and

(b) any right, power, privilege or immunity, whether actual,

contingent or prospective;

but does not include a right, power, privilege or immunity conferred by

an Act or by regulations or other subordinate legislation made under an

Act.

ESOS Act means the Education Services for Overseas Students Act

2000.

liability means any liability, duty or obligation, whether actual,

contingent or prospective, but does not include a liability, duty or

obligation imposed by an Act or by regulations or other subordinate

legislation made under an Act.

old Fund means the ESOS Assurance Fund established under

section 45 of the ESOS Act (as in force immediately before this item

commences).

Division 2--Defaults

44 Application--defaults after commencement

The amendments made by this Schedule apply in relation to any default

by a registered provider, or an overseas student or intending overseas

student, that occurs after this item commences.

45 Transitional--defaults before commencement

(1)

This item sets out what happens if:

(a) before this item commences:

Schedule 1 Tuition protection service

Part 5 Application, saving and transitional provisions

48 Education Services for Overseas Students Legislation Amendment (Tuition Protection

Service and Other Measures) Bill 2011 No. , 2011

(i) a registered provider defaults in relation to an overseas

student or intending overseas student and a course at a

location; or

(ii) an overseas student or intending overseas student

defaults in relation to a course at a location; and

(b) by the time this item commences:

(i) the student has not accepted an alternative course in

accordance with Division 2 of Part 3, or Division 5 of

Part 5, of the ESOS Act (as in force immediately before

this item commences); and

(ii) the student has not been provided with a refund under

one of those Divisions.

(2)

Despite the repeal of Division 2 of Part 3, and Division 5 of Part 5, of

the ESOS Act by this Schedule, those Divisions (except subsections

31(4) to (5)) (as in force immediately before this item commences)

continue to apply after this item commences, in relation to the default,

with the following changes:

(a) references in those Divisions to the Fund Manager are taken

to be references to the TPS Director;

(b) references in those Divisions to the Fund are taken to be

references to the Overseas Students Tuition Fund;

Director to comply with that section within:

(i) the period of 30 days of a call being made on the Fund;

(ii) if the TPS Director determines that exceptional

circumstances apply--any longer period determined in

writing by the TPS Director, and agreed to by the

student;

(d) the TPS Director may pay an amount in relation to a student

under section 77 of the ESOS Act without having attempted

to place the student in a suitable alternative course.

(3)

For the purposes of section 52C of the ESOS Act (as inserted by this

Schedule), making a payment under section 77 of the ESOS Act (as

continued by this item) is taken to be a purpose of the Overseas

Students Tuition Fund.

Tuition protection service Schedule 1

Application, saving and transitional provisions Part 5

Education Services for Overseas Students Legislation Amendment (Tuition Protection Service and

Other Measures) Bill 2011 No. , 2011 49

Division 3--The old Fund and the OSTF

46 Vesting of assets of old Fund

(1)

This item applies to the assets of the old Fund immediately before this

item commences.

(2)

At that time, the assets cease to be assets of the old Fund and become

assets of the Commonwealth without any conveyance, transfer or

assignment. The Commonwealth becomes the successor in law in

relation to the assets.

47 Transferring amount standing to the credit of the old Fund

The amount standing to the credit of the old Fund immediately before

this item commences is, by force of this item, transferred to the

Commonwealth immediately after this item commences.

48 Vesting of liabilities of old Fund

(1)

This item applies to the liabilities of the old Fund immediately before

this item commences, other than any loan from the Commonwealth.

(2)

At that time, the liabilities cease to be liabilities of the old Fund and

become liabilities of the Commonwealth without any conveyance,

transfer or assignment. The Commonwealth becomes the successor in

law in relation to the liabilities.

49 Transitional--financial accountability

Despite the repeal of section 80 of the ESOS Act by this Schedule, that

section (as in force immediately before this item commences) continues

to apply, after this item commences, with the following changes:

(a) the TPS Director (and not the Fund Manager) must arrange

for the independent auditor to prepare the report;

(b) the report must be prepared as soon as possible after 30 June

of the year in which this item commences (and not after the

end of a calendar year);

Panel).

50 Section 82 of the ESOS Act

Schedule 1 Tuition protection service

Part 5 Application, saving and transitional provisions

50 Education Services for Overseas Students Legislation Amendment (Tuition Protection

Service and Other Measures) Bill 2011 No. , 2011

To avoid doubt, section 82 of the ESOS Act (as in force immediately

before this item commences) does not apply in relation to the repeal of

Division 1 of Part 5 of that Act by this Schedule.

51 Seed funding for the OSTF

(1)

Despite section 52B of the ESOS Act (as inserted by this Schedule), the

amount (the seed funding amount) of $5 million is, by force of this

item, credited to the OSTF immediately after this item commences.

Returning amounts to the Commonwealth

(2)

The difference between:

(a) the seed funding amount; and

(b) the total of amounts debited from the OSTF under

section 52C of the ESOS Act (as inserted by this Schedule)

before the 1 July that occurs 1 year after this item

commences;

is, by force of this item, debited from the OSTF at the beginning of that

1 July.

Division 4--The Fund Manager and the Contributions

Review Panel

52 Termination of appointment of Fund Manager

A person who, immediately before this item commences, is appointed

as Fund Manager, ceases, by force of this item, to be Fund Manager

after that time.

53 References in Acts and instruments--Fund Manager

(1) If:

(a) an Act or instrument is in force immediately before this item

commences; and

(b) the Act or instrument contains a reference to the Fund

Manager;

the Act or instrument has effect after this item commences as if the

reference to the Fund Manager were a reference to the TPS Director.

Note:

During the first year after this item commences, instruments can retrospectively amend

references to the Fund Manager: see item 59.

Tuition protection service Schedule 1

Application, saving and transitional provisions Part 5

Education Services for Overseas Students Legislation Amendment (Tuition Protection Service and

Other Measures) Bill 2011 No. , 2011 51

(2)

The Minister may, by writing, determine that subitem (1):

(a) does not apply in relation to a specified reference; or

(b) applies, in relation to a specified reference, as if the reference

in that subitem to the TPS Director were a reference to the

Commonwealth.

A determination under this subitem has effect accordingly.

(3)

The regulations may provide that an instrument containing a reference

specified in a determination under paragraph (2)(a) has effect, after this

item commences, as if the reference were a reference to a person or

body other than the TPS Director or the Commonwealth.

(4)

A determination made under subitem (2) is not a legislative instrument.

54 Operation of laws--Fund Manager

(1)

If, before this item commences, a thing was done by, or in relation to,

the Fund Manager, then, for the purposes of the operation of any law of

the Commonwealth after this item commences, the thing is taken to

have been done by, or in relation to, the TPS Director.

(2)

For the purposes of subitem (1), a thing done before this item

commences under a provision that is amended by this Act has effect

from that time as if it were done under that provision as amended.

However, this is not taken to change the time at which the thing was

actually done.

(3)

The Minister may, by writing, determine that subitem (1):

(a) does not apply in relation to a specified thing done by, or in

relation to, the Fund Manager; or

(b) applies as if the reference in that subitem to the TPS Director

were a reference to the Commonwealth.

A determination under this subitem has effect accordingly.

(4)

The regulations may provide for a thing specified in a determination

under paragraph (3)(a) to be taken to have been done by, or in relation

to, a person or body other than the TPS Director or the Commonwealth.

(5)

A determination made under subitem (3) is not a legislative instrument.

55 Transitional--transfer of Fund Manager's records

Schedule 1 Tuition protection service

Part 5 Application, saving and transitional provisions

52 Education Services for Overseas Students Legislation Amendment (Tuition Protection

Service and Other Measures) Bill 2011 No. , 2011

(1)

This item applies to any records or documents that are in the possession

of the Fund Manager immediately before this item commences.

(2)

The records and documents are, by force of this item, transferred to the

Commonwealth after this item commences.

56 Termination of appointment of members of Contributions

Review Panel

A person who, immediately before this item commences, is a member

of the Contributions Review Panel, ceases, by force of this item, to hold

office as such a member after that time.

57 References in Acts and instruments--Contributions

Review Panel

(1) If:

(a) an Act or instrument is in force immediately before this item

commences; and

(b) the Act or instrument contains a reference to the

Contributions Review Panel;

the Act or instrument has effect after this item commences as if the

reference to the Contributions Review Panel were a reference to the

TPS Advisory Board.

Note:

During the first year after this item commences, instruments can retrospectively amend

references to the Contributions Review Panel: see item 59.

(2)

The Minister may, by writing, determine that subitem (1):

(a) does not apply in relation to a specified reference; or

(b) applies, in relation to a specified reference, as if the reference

in that subitem to the TPS Advisory Board were a reference

to the Commonwealth.

A determination under this subitem has effect accordingly.

(3)

The regulations may provide that an instrument containing a reference

specified in a determination under paragraph (2)(a) has effect after this

item commences as if the reference were a reference to a person or body

other than the TPS Advisory Board or the Commonwealth.

(4)

A determination made under subitem (2) is not a legislative instrument.

58 Operation of laws--Contributions Review Panel

Tuition protection service Schedule 1

Application, saving and transitional provisions Part 5

Education Services for Overseas Students Legislation Amendment (Tuition Protection Service and

Other Measures) Bill 2011 No. , 2011 53

(1)

If, before this item commences, a thing was done by, or in relation to,

the Contributions Review Panel, then, for the purposes of the operation

of any law of the Commonwealth after this item commences, the thing

is taken to have been done by, or in relation to, the TPS Advisory

Board.

(2)

For the purposes of subitem (1), a thing done before this item

commences under a provision that is amended by this Act has effect

after this item commences as if it were done under that provision as

amended. However, this is not taken to change the time at which the

thing was actually done.

(3)

The Minister may, by writing, determine that subitem (1):

(a) does not apply in relation to a specified thing done by, or in

relation to, the Contributions Review Panel; or

(b) applies as if the reference in that subitem to the TPS

Advisory Board were a reference to the Commonwealth.

A determination under this subitem has effect accordingly.

(4)

The regulations may provide for a thing specified in a determination

under paragraph (3)(a) to be taken to have been done by, or in relation

to, a person or body other than the TPS Advisory Board or the

Commonwealth.

(5)

A determination made under subitem (3) is not a legislative instrument.

59 Amending instruments may be retrospective

(1) If:

(a) an instrument is made within the period of 12 months

beginning on the day on which this item commences; and

(b) a provision of the instrument amends a reference to the Fund

Manager or the Contributions Review Panel;

the provision may be expressed to take effect from the day that this item

commences, or a later day in the period referred to in paragraph (a), that

occurs before the instrument is made.

(2)

This item has effect despite subsection 12(2) of the Legislative

Instruments Act 2003.

60 Transitional--reviews

Schedule 1 Tuition protection service

Part 5 Application, saving and transitional provisions

54 Education Services for Overseas Students Legislation Amendment (Tuition Protection

Service and Other Measures) Bill 2011 No. , 2011

(1)

This item applies if, before this item commences:

(a) a person applies for a review of the amount of its annual

Fund contribution under section 66 or 68 of the ESOS Act (as

in force immediately before this item commences); and

(b) a notice has not been given under section 67 or 69 (as the

case requires) of that Act.

(2)

Despite the repeal of Subdivision B of Division 4 of Part 5 (rights of

review) of the ESOS Act by this Schedule, that Subdivision continues to

apply, after this item commences, as if:

(a) a reference in that Subdivision to the Fund Manager were a

reference to the TPS Director; and

(b) a reference in that Subdivision to the Panel were a reference

to the Secretary.

Division 5--Payment of TPS levies

61 Application--payment of TPS levies

The requirement to pay a TPS levy imposed by section 14 of the

Education Services for Overseas Students (TPS Levies) Act 2011

applies in relation to:

(a) the first calendar year that begins after the day this item

commences; and

(b) later calendar years.

Division 6--Miscellaneous

62 Constitutional safety net

(1)

If the operation of this Schedule would result in an acquisition of

property from a person otherwise than on just terms, the

Commonwealth is liable to pay a reasonable amount of compensation to

the person.

(2)

If the Commonwealth and the person do not agree on the amount of the

compensation, the person may institute proceedings in a court of

competent jurisdiction for the recovery from the Commonwealth of

such reasonable amount of compensation as the court determines.

(3)

In this item:

Tuition protection service Schedule 1

Application, saving and transitional provisions Part 5

Education Services for Overseas Students Legislation Amendment (Tuition Protection Service and

Other Measures) Bill 2011 No. , 2011 55

acquisition of property has the same meaning as in paragraph 51(xxxi)

of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the

Constitution.

63 Delegation by Minister

(1)

The Minister may, by writing, delegate all or any of his or her powers

and functions under this Part to a person.

(2)

The delegate must be:

(a) the Secretary; or

(b) an SES employee, or acting SES employee, in the

Department.

Note:

SES employee is defined in section 2B of the Acts Interpretation Act 1901.

(3)

In exercising powers or functions under a delegation, the delegate must

comply with any directions of the Minister.

Schedule 2 National registration

Part 1 Main amendments

56 Education Services for Overseas Students Legislation Amendment (Tuition Protection

Service and Other Measures) Bill 2011 No. , 2011

Schedule 2--National registration

Part 1--Main amendments

Education Services for Overseas Students Act 2000

1 Section 9

Repeal the section, substitute:

Division 3--Registration of approved providers

Subdivision A--Registration of approved providers

9AA Recommendation by designated authority that approved

provider be registered to provide a course at a location

(1) A designated authority may recommend that an approved provider

for a course for a location be registered under this Act to provide

that course at that location to overseas students.

Risk management approach

(2) A designated authority must use a risk management approach when

considering whether to make such a recommendation.

Recommendation may relate to new or existing registration

(3) A designated authority may make such a recommendation:

(a) for the purposes of the Secretary registering an approved

provider under section 9AB; or

(b) for the purposes of the Secretary adding one or more courses

at one or more locations to a provider's registration under

section 9AG.

9AB Registration of approved providers by Secretary

Registering approved providers

(1) The Secretary must register an approved provider if:

National registration Schedule 2

Main amendments Part 1

Education Services for Overseas Students Legislation Amendment (Tuition Protection Service and

Other Measures) Bill 2011 No. , 2011 57

(a) a designated authority makes a recommendation under

section 9AA in relation to the provider; and

(b) the provider is:

(i) a resident of Australia; or

(ii) a Table C provider (within the meaning of the Higher

Education Support Act 2003); and

charge; and

(d) if the provider is not a registered provider--the provider has

paid its first TPS levy (see Subdivision B of Division 2 of

Part 5A); and

(e) in any case--the designated authority has given the Secretary

a certificate in accordance with section 9AH; and

(f) the Secretary has no reason to believe that the provider:

(i) is not complying, or will not comply, with this Act or

the national code; or

(ii) does not have the principal purpose of providing

education; or

(iii) does not have the clearly demonstrated capacity to

provide education of a satisfactory standard; or

(iv) is unlikely to be able to provide education of a

satisfactory standard; and

Note 1: The Secretary must notify the relevant designated authority if the

Secretary has reason to believe that any of the matters set out in

this paragraph apply: see section 14.

Note 2: For when a higher education provider has the principal purpose

of providing education, see section 5A.

(g) if the provider has previously been registered--the provider

is not liable for an annual registration charge or late payment

penalty that remains unpaid after it became due for payment.

Note:

The Secretary must determine that the provider is registered for a

specified period: see section 9AC.

(2) The Secretary must not register the provider in any other

circumstances.

(3) Nothing in subsection (1) of this section creates a duty for the

Secretary to seek any information about the matters mentioned.

Schedule 2 National registration

Part 1 Main amendments

58 Education Services for Overseas Students Legislation Amendment (Tuition Protection

Service and Other Measures) Bill 2011 No. , 2011

Registering courses and locations

(4) At the time the Secretary registers an approved provider under this

section, the Secretary must determine:

(a) the course or courses that the provider is registered to

provide; and

(b) the location or locations at which the provider is registered to

provide that course or those courses.

Note 1:

For when the approved provider becomes registered to provide a

course at a location, see subsection 14A(6).

Note 2:

Under section 9AG, courses and locations can be added later to a

provider's registration.

Renewing registrations

(5) To avoid doubt, the Secretary registers a provider under this

section if the Secretary renews the provider's registration.

9AC Period of registration

(1) At the time the Secretary registers an approved provider under

section 9AB, the Secretary must determine that the provider is

registered for a specified period that is:

(a) more than 2 years; but

(b) no more than 5 years.

(2) To avoid doubt, subsection (1) does not limit the Minister's power

under section 83 to cancel a registered provider's registration

within the first 2 years of the provider's registration.

(3) The period specified under subsection (1) may be different from

the period stated by the designated authority under paragraph

9AH(i).

(4) The Secretary may vary the period specified under subsection (1)

at any time, but the varied period must not:

(a) end earlier than 2 years; nor

(b) extend beyond 5 years;

from the day on which the provider was registered.

National registration Schedule 2

Main amendments Part 1

Education Services for Overseas Students Legislation Amendment (Tuition Protection Service and

Other Measures) Bill 2011 No. , 2011 59

When registration would otherwise expire before renewal

completed

(5)

If:

(a) a provider's registration is due to expire; and

(b) before that expiry, a designated authority makes a

recommendation under section 9AA in relation to the

provider; and

expire, the Secretary has not yet made a decision whether to

the provider's registration is taken to continue until the Secretary

makes his or her decision.

When registration expires before course completed

(6) If a provider's registration is due to expire before the provider has

finished providing a course for which the provider is registered, the

provider is taken to be registered to provide the course until the

provider has finished providing the course to the students who

were enrolled in that course before that registration was due to

expire.

9AD Imposing conditions on provider's registration when

designated authority has imposed conditions

Imposing conditions at time of registering providers

(1)

If:

(a) a provider is approved by a designated authority to provide

courses to overseas students; and

(b) the designated authority has imposed a condition on the

provider relating to its provision of those courses; and

the condition was imposed; and

(d) the provider subsequently becomes registered under that

section;

the Secretary may, at the time of registering the provider, impose

that condition on the provider's registration.

Schedule 2 National registration

Part 1 Main amendments

60 Education Services for Overseas Students Legislation Amendment (Tuition Protection

Service and Other Measures) Bill 2011 No. , 2011

Imposing conditions on registered providers

(2)

If:

(a) a provider is approved by a designated authority to provide

courses to overseas students; and

(b) the designated authority has imposed a condition on the

provider relating to its provision of those courses; and

condition was imposed;

the Secretary or Minister may, by notifying the provider in writing,

impose that condition on the provider's registration.

Secretary or Minister to have regard to designated authority's

advice

(3) In deciding whether to impose a condition under this section, the

Secretary or Minister must:

(a) have regard to any advice of the relevant designated

authority; and

(b) use a risk management approach.

9AE Secretary's conditions on provider's registration

(1) The Secretary, on the Secretary's own initiative, may impose a

condition on a provider's registration.

(2) The Secretary may impose a condition:

(a)

either:

(i) at the time that a provider is registered; or

(ii) at any time before a provider's registration expires; and

(b) either generally or in respect of any one or more specified

courses for any one or more specified locations.

(3) To avoid doubt, section 9AD does not limit the Secretary's power

to impose a condition under this section.

(4) The Secretary must use a risk management approach in deciding

whether to impose a condition under this section.

National registration Schedule 2

Main amendments Part 1

Education Services for Overseas Students Legislation Amendment (Tuition Protection Service and

Other Measures) Bill 2011 No. , 2011 61

9AF Variation or removal of conditions

(1) The Secretary may vary or remove a condition that the Secretary

has imposed under section 9AD or 9AE.

(2) The Minister may vary or remove a condition that the Minister has

imposed under section 9AD.

(3) The Secretary and the Minister must use a risk management

approach in deciding whether to vary or remove a condition under

this section.

9AG Changing the scope of a provider's registration

(1) The Secretary must add a course at a specified location to a

provider's registration if:

(a) a designated authority makes a recommendation under

section 9AA that the provider be registered to provide that

course at that location; and

(b) if the provider is not currently registered to provide any

courses at the location being added--the designated authority

has given the Secretary a certificate in accordance with

section 9AH.

(2) The Secretary must not add one or more courses at one or more

locations to a provider's registration in any other circumstances.

(3) Nothing in subsection (1) creates a duty for the Secretary to seek

any information about the matters mentioned.

Subdivision B--Provisions relating to registration

9AH Certificate from designated authority

For the purposes of paragraphs 9AB(1)(e) and 9AG(1)(b), a

designated authority who recommends under section 9AA that an

approved provider be registered to provide a course at a location

must give the Secretary a certificate, in the form approved by the

Secretary for the purposes of this section, that:

(a) relates to the provider's compliance with the national code;

and

Schedule 2 National registration

Part 1 Main amendments

62 Education Services for Overseas Students Legislation Amendment (Tuition Protection

Service and Other Measures) Bill 2011 No. , 2011

(b) except in the case of a provider mentioned in subsection

9B(1)--states that the provider has satisfied the designated

authority that the provider is fit and proper to be registered;

and

purpose of providing education; and

(d) states that the provider has clearly demonstrated the capacity

to provide education of a satisfactory standard (including by

having an appropriate business model and access to adequate

financial resources, for example); and

(e) if applicable, states that the provider meets the ELICOS

Standards; and

(f) if applicable, states that the provider meets the Foundation

Program Standards; and

(g) states the results of the designated authority's risk assessment

of the provider; and

(h) states the conditions (if any) that should apply to the

provider's registration for the course for the location, in view

of the results of that risk assessment; and

(i) if the certificate is for the purposes of paragraph 9AB(1)(e)--

states the period (of no less than 2 years and no more than 5

years) for which the provider should be registered.

Note 1:

For paragraph (b), the designated authority must have regard to the

matters referred to in section 9B in deciding whether a provider is fit

and proper to be registered.

Note 2:

For paragraph (c), see section 5A for when a higher education

provider has the principal purpose of providing education.

2 Sections 10 and 11

Repeal the sections.

3 Sections 14A and 14B

Repeal the sections, substitute:

Division 4--The Register

14A The Register

(1) The Secretary must cause a Register to be kept for the purposes of

this Act.

National registration Schedule 2

Main amendments Part 1

Education Services for Overseas Students Legislation Amendment (Tuition Protection Service and

Other Measures) Bill 2011 No. , 2011 63

(2) The Register is called the Commonwealth Register of Institutions

and Courses for Overseas Students.

(3) The Secretary may cause the contents of all or part of the Register

to be made available to the public by electronic or other means.

Contents of the Register

(4) The Secretary must cause the following information to be entered

on the Register in relation to each provider's registration:

(a) the name of each provider who is registered;

(b) the name of each course which the provider is registered to

provide, and each location at which the provider is registered

to provide that course;

executive officer of the provider;

(d) a unique identifier allocated to the provider;

(e) a unique identifier allocated to each course at each location

for which the provider is registered;

(f) the day on which the provider is registered;

(g) the period of the provider's registration;

(h) any conditions that are imposed on the provider's registration

(either generally or in relation to specific courses and

locations);

(i) any other matters prescribed by the regulations.

(5) The Secretary may cause any other information he or she considers

appropriate to be entered on the Register in relation to a provider's

registration.

When an approved provider is registered to provide a course at a

location

(6) An approved provider is registered to provide a course at a location

when the Secretary has entered the name of the provider, the

course and the location on the Register.

14B Updating the Register

(1) The Secretary must ensure that the Register is kept up-to-date.

Schedule 2 National registration

Part 1 Main amendments

64 Education Services for Overseas Students Legislation Amendment (Tuition Protection

Service and Other Measures) Bill 2011 No. , 2011

(2) Without limiting subsection (1), the Secretary must cause the

(a) a provider's registration is suspended or cancelled for any

one or more courses for any one or more locations; or

(b) a provider's registration has a condition imposed on it; or

removed, or a condition varied; or

(d) a provider applies to the Administrative Appeals Tribunal for

review of a decision to suspend or cancel, or to impose a

condition on, the provider's registration.

Note:

The Register can also be updated under section 103 (Immigration

Minister's suspension certificate).

(3) However, a failure to keep the Register up-to-date does not affect

the validity of any action referred to in subsection (2).

National registration Schedule 2

Consequential amendments Part 2

Education Services for Overseas Students Legislation Amendment (Tuition Protection Service and

Other Measures) Bill 2011 No. , 2011 65

Part 2--Consequential amendments

Education Services for Overseas Students Act 2000

4 Before section 1

Insert:

Division 1--Preliminary

5 Paragraph 4B(1)(b)

Repeal the paragraph, substitute:

(b) to the extent that a reference in a provision of this Act to a

designated authority relates to a designated authority covered

by table item 4 of the table in subsection 7A(1)--the

reference included a reference to the Territories Minister.

6 Paragraph 4B(2)(d)

Repeal the paragraph.

7 Section 5 (definition of approved provider)

Repeal the definition, substitute:

approved provider for a course for a location means a provider

approved by a relevant designated authority to provide that course

at that location to overseas students, other than an approval that has

been withdrawn by that authority.

8 Section 5 (definition of Commonwealth designated

authority)

Repeal the definition.

9 Section 5 (definition of condition)

Repeal the definition, substitute:

condition, in relation to a provider's registration, means a

condition imposed on the registration under section 9AD or 9AE or

subsection 83(3).

10 Section 5 (definition of modification)

Schedule 2 National registration

Part 2 Consequential amendments

66 Education Services for Overseas Students Legislation Amendment (Tuition Protection

Service and Other Measures) Bill 2011 No. , 2011

Repeal the definition.

11 Section 5 (definition of Register)

Omit "section 10", substitute "section 14A".

12 Section 5 (definition of registered)

Repeal the definition, substitute:

registered means registered under Part 2.

Note:

Other grammatical forms of the word registered (such as registration)

have a corresponding meaning (see section 18A of the Acts

Interpretation Act 1901).

13 Section 5 (definition of registered provider)

Omit "State" (wherever occurring), substitute "location".

14 After section 5

Insert:

5A When higher education providers are taken to have the principal

purpose of providing education

For the purposes of subparagraphs 9AB(1)(f)(ii) and 14(1)(a)(ii)

and paragraphs 9AH(c) and 83(1C)(a), a higher education provider

is taken to have the principal purpose of providing education if its

principal purpose is either or both of the following:

(a)

providing

education;

(b)

conducting

research.

15 Subsection 7A(1)

Omit "for a State".

16 Subsection 7A(1) (cell at table item 4, column headed "the

designated authority is:")

Repeal the cell, substitute:

the person responsible under a law of a

State for approving providers to

provide courses to overseas students at

locations in the State

National registration Schedule 2

Consequential amendments Part 2

Education Services for Overseas Students Legislation Amendment (Tuition Protection Service and

Other Measures) Bill 2011 No. , 2011 67

17 Paragraphs 7A(2)(a) and (b)

Omit "for the State".

18 Subsection 7A(3)

Omit "for a State".

19 At the end of Part 1

Add:

Division 2--Guide to this Act

7B Guide to this Act

�

This Act regulates providers who provide courses to overseas

students.

�

A person who provides a course at a location to an overseas

student must be registered to provide that course at that

location (or do so in accordance with an arrangement with a

provider who is so registered).

�

This Act and the national code impose obligations on

registered providers, such as notification, record keeping and

financial requirements.

�

In particular, there are obligations on registered providers

when the provider or an overseas student of the provider

defaults, and does not start or finish a course. The provider is

required to provide a refund to the student. For a provider

default, the provider may instead provide an alternative course

for the student at the provider's expense.

�

If a provider that has defaulted does not discharge its

obligations to an overseas student, the TPS Director must

provide the student with options for suitable alternative

courses (if any such courses are available).

�

In the case of a default, a call is made on the Overseas

Students Tuition Fund to pay for alternative courses, or to

Schedule 2 National registration

Part 2 Consequential amendments

68 Education Services for Overseas Students Legislation Amendment (Tuition Protection

Service and Other Measures) Bill 2011 No. , 2011

provide refunds to students, if providers have not already done

so.

20 Before section 8

Insert:

Division 1--Guide to this Part

8A Guide to this Part

�

A person who provides a course at a location to an overseas

student must be registered to provide that course at that

location (or do so in accordance with an arrangement with a

provider who is so registered).

�

Division 2 creates an offence for a person who contravenes

that requirement. It is also an offence for a registered provider

to offer courses, or hold itself out as able to provide a course,

to overseas students without being appropriately registered (or

doing so in accordance with an appropriate arrangement).

�

Approved providers are registered under Division 3. A

provider's registration lists all of the courses that the provider

is registered to provide, and the locations at which the

provider is registered to provide those courses. Conditions can

be imposed on a provider's registration. A registration lasts

for a minimum of 2 and a maximum of 5 years.

�

The Register (which contains each provider's registration) is

maintained, and kept up-to-date, under Division 4.

Division 2--Offence for providing or promoting a course

without a registered provider

21 Paragraphs 8(1)(a) to (d)

Omit "in a State", substitute "at a location".

22 Paragraph 8(1)(e)

Omit "for that particular State", substitute "at that particular location".

National registration Schedule 2

Consequential amendments Part 2

Education Services for Overseas Students Legislation Amendment (Tuition Protection Service and

Other Measures) Bill 2011 No. , 2011 69

23 Paragraph 8(1)(f)

Omit "for a State", substitute "for that particular location".

24 Subparagraph 8(3)(b)(iii)

Omit "State", substitute "location".

25 Subparagraph 8(3)(b)(iv)

Omit "for a State", substitute "for the location".

26 Before subsection 9B(1)

Insert:

(1A) This section applies for the purposes of the following provisions:

(a)

paragraph

9AH(b);

(b)

subsection

83(1B);

27 Subsection 9B(1)

Omit "Paragraphs 9(2)(ca) and 9A(2)(e)", substitute "The provisions

referred to in subsection (1A)".

28 Subsection 9B(2)

Omit "it is satisfied as mentioned in paragraph 9(2)(ca) or 9A(2)(e), the

designated authority", substitute "to be satisfied as mentioned in a

provision referred to in subsection (1A), the Minister, Secretary or

designated authority (as the case requires)".

29 Paragraph 9B(2)(b)

Omit "States", substitute "locations".

30 Section 14 (heading)

Repeal the heading, substitute:

14 Notifying designated authorities if the Secretary suspects

non-compliance with this Act or the national code etc.

31 Subparagraph 14(1)(a)(iii)

Omit "and", substitute "or".

Schedule 2 National registration

Part 2 Consequential amendments

70 Education Services for Overseas Students Legislation Amendment (Tuition Protection

Service and Other Measures) Bill 2011 No. , 2011

32 At the end of paragraph 14(1)(a)

Add:

(iv) is unlikely to be able to provide education of a

satisfactory standard; and

33 At the end of subsection 14(1)

Add:

Note:

For when a higher education provider has the principal purpose of

providing education, see section 5A.

34 Subsection 14(1A)

Repeal the subsection.

35 Before Division 1 of Part 3

Insert:

Division 1A--Guide to this Part

15A Guide to this Part

�

A registered provider has obligations under this Part.

�

Division 1 contains general obligations on registered

providers. For example, a registered provider must not engage

in misleading or deceptive conduct when recruiting or

providing courses to overseas students. Other obligations

relate to notification, record keeping and financial

requirements.

�

Enforcement action (such as imposing conditions, or

suspending or cancelling a registration) can be taken under

Part 6 in relation to a registered provider who breaches this

Part.

36 Paragraph 17(1)(b)

Omit "States", substitute "locations".

37 Before section 33

National registration Schedule 2

Consequential amendments Part 2

Education Services for Overseas Students Legislation Amendment (Tuition Protection Service and

Other Measures) Bill 2011 No. , 2011 71

Insert:

Division 1--Guide to this Part

33A Guide to this Part

�

The Minister makes a national code under this Part.

�

The purpose of the code is to provide nationally consistent

standards and procedures for registered providers in providing

courses to overseas students, dealing with agents and other

providers, and providing refunds.

�

Designated authorities investigate breaches of the code.

�

Enforcement action (such as imposing conditions, or

suspending or cancelling a registration) can be taken under

Part 6 in relation to a registered provider who breaches the

code.

Division 2--The national code

38 Subsection 33(1)

Omit "expressed to commence on a day at least 28 days after it is

registered in the Federal Register of Legislative Instruments".

39 Subsection 33(1) (note)

Repeal the note, substitute:

Note:

The Minister may amend the national code by legislative instrument:

see subsection 33(3) of the Acts Interpretation Act 1901.

40 Section 34

Omit "registration and".

41 Section 36

Repeal the section.

42 Paragraphs 38(a), (c) and (f)

Repeal the paragraphs.

Schedule 2 National registration

Part 2 Consequential amendments

72 Education Services for Overseas Students Legislation Amendment (Tuition Protection

Service and Other Measures) Bill 2011 No. , 2011

43 Section 40 (note)

Omit "section 9", substitute "section 9AB".

44 Section 43 (heading)

Repeal the heading, substitute:

43 Designated authorities to investigate breaches of the national

code

45 Paragraph 43(1)(a)

Omit "for a State", substitute "for a course for a location".

46 Before Division 1 of Part 6

Insert:

Division 1A--Guide to this Part

83A Guide to this Part

�

Compliance with this Act, the national code and any

conditions on a provider's registration is enforced under this

Part.

�

The Minister can take enforcement action (such as imposing

conditions, or suspending or cancelling a registration) under

Division 1. Such action can be taken in relation to a provider's

registration generally or in relation to a specific course at a

specific location. Division 1 also provides for automatic

suspension or cancellation of a provider's registration in

certain circumstances.

�

The Immigration Minister can give a suspension certificate

under Division 2 if a significant number of overseas students

or intending overseas students are entering or remaining in

Australia for a purpose not contemplated by their visas. A

registered provider must not offer courses, or hold itself out as

able to provide a course, to overseas students while such a

certificate is in force for the provider.

National registration Schedule 2

Consequential amendments Part 2

Education Services for Overseas Students Legislation Amendment (Tuition Protection Service and

Other Measures) Bill 2011 No. , 2011 73

�

Division 3 provides for certain offences, such as failing to

identify a registered provider in written material or providing

false or misleading information.

47 Subsection 83(1B)

Omit "(having regard to the matters referred to in subsection 9B(2))".

48 Subsection 83(1B) (note)

Omit "Note", substitute "Note 1".

49 At the end of subsection 83(1B)

Add:

Note 2:

The Minister must have regard to the matters referred to in section 9B

in deciding whether a provider is fit and proper to be registered.

50 Subsection 83(1C) (note)

Omit "Note", substitute "Note 1".

51 At the end of subsection 83(1C)

Add:

Note 2:

For when a higher education provider has the principal purpose of

providing education, see section 5A.

52 Subsection 83(1D)

Repeal the subsection.

53 Paragraphs 83(3)(a) to (c)

Omit "States", substitute "locations".

54 Subsection 83(4)

Omit "State", substitute "location".

55 Section 88

Repeal the section.

56 Subsection 89(1)

Repeal the subsection, substitute:

Schedule 2 National registration

Part 2 Consequential amendments

74 Education Services for Overseas Students Legislation Amendment (Tuition Protection

Service and Other Measures) Bill 2011 No. , 2011

(1) The registration of a provider for a course for a location is

suspended by force of this subsection if the relevant designated

authority suspends the provider's approval for that course for that

location.

Note:

Section 95 sets out the effect of suspension.

57 Subsection 89(2)

Omit "State's", substitute "designated authority's".

58 Subsections 89A(1) to (2)

Repeal the subsections, substitute:

(1A) This section applies if:

(a) one or more designated authorities approve a provider (other

than a provider covered by subsection 9B(1)) to provide a

course at a location; and

(b)

either:

(i) a designated authority mentioned in paragraph (a) tells

the Secretary that the authority is no longer satisfied that

the provider is fit and proper to be registered; or

(ii) the Secretary is no longer satisfied that the provider is

fit and proper to be registered.

Note:

The designated authority and Secretary must have regard to the

matters referred to in section 9B in deciding whether a provider is fit

and proper to be registered.

Suspension of registration of all courses at all locations

(1B) The registration of the provider is suspended for all courses for all

locations by force of this subsection, unless subsection (1C)

applies.

Note:

Section 95 sets out the effect of suspension.

Suspension when the designated authority which notifies the

Secretary is a State designated authority

(1C) The registration of the provider is suspended for all courses for all

locations in a State, by force of this subsection, if:

(a) subparagraph (1A)(b)(i) applies and subparagraph (1A)(b)(ii)

does not apply; and

National registration Schedule 2

Consequential amendments Part 2

Education Services for Overseas Students Legislation Amendment (Tuition Protection Service and

Other Measures) Bill 2011 No. , 2011 75

(b) the designated authority mentioned in

subparagraph (1A)(b)(i) is a designated authority referred to

in table item 4 of the table in subsection 7A(1) in relation to

that particular State.

Note:

Section 95 sets out the effect of suspension.

(1D)

If:

(a) subsection (1C) applies in relation to the registration of a

provider; and

(b) either the National VET Regulator or TEQSA has approved

the provider to provide courses at one or more locations;

then the registration of the provider is also suspended for all of

those courses at all locations.

Note:

Section 95 sets out the effect of suspension.

Removal of suspension

(2) The Minister may give the provider a notice that sets out the effect

of subsection (3) if:

(a) the designated authority mentioned in

subparagraph (1A)(b)(i) tells the Secretary that the authority

is again satisfied that the provider is fit and proper to be

registered; or

(b) the Secretary is again satisfied that the provider is fit and

proper to be registered;

as the case requires.

59 Subsection 90(1)

Omit "States", substitute "locations".

60 Section 91 (heading)

Repeal the heading, substitute:

91 Automatic cancellation of registration for course for location if

provider ceases to be approved for that course and

location

61 Section 91

Omit "State" (wherever occurring), substitute "location".

Schedule 2 National registration

Part 2 Consequential amendments

76 Education Services for Overseas Students Legislation Amendment (Tuition Protection

Service and Other Measures) Bill 2011 No. , 2011

62 Section 92

Omit "States", substitute "locations".

63 Before subsection 93(1)

Insert:

Notice requirements before Minister makes decision

64 Subsection 93(1)

Omit "subsection 14A(2)" (wherever occurring), substitute "subsection

9AD(2)".

65 Before subsection 93(1A)

Insert:

Notice requirements before Secretary makes decision

66 Subsection 93(1A)

Omit "subsection 14B(1)", substitute "subsection 9AE(1)".

67 Before subsection 93(2)

Insert:

Consideration of submissions received and giving notice of

decision

68 Subsection 95(1)

Omit "for a State", substitute "for a location".

69 Paragraphs 95(1)(a), (b) and (c)

Omit "for the State", substitute "at the location".

70 Subsection 95(2)

Omit "State", substitute "location".

71 Section 96

Repeal the section.

72 Paragraphs 101(1)(a) to (c)

National registration Schedule 2

Consequential amendments Part 2

Education Services for Overseas Students Legislation Amendment (Tuition Protection Service and

Other Measures) Bill 2011 No. , 2011 77

Omit "in any State", substitute "at any location".

73 Subsection 107(1)

Omit "(1)".

74 Paragraphs 107(1)(a) to (c)

Omit "in a State", substitute "at a location".

75 Subsection 107(1)

After "identify", insert "any one or more of the following".

76 Paragraph 107(1)(d)

Omit "and".

77 Paragraph 107(1)(e)

Repeal the paragraph, substitute:

(e) the unique identifier allocated to the registered provider

under paragraph 14A(4)(d);

78 Before Division 1 of Part 7

Insert:

Division 1A--Guide to this Part

111A Guide to this Part

�

Registered providers' compliance with this Act and the

national code is monitored under this Part.

�

The Secretary can give a production notice (requiring a person

to give information or documents) or an attendance notice

(requiring a person to attend and answer questions) under

Division 2.

�

An authorised employee may apply for a monitoring warrant

under Division 3. A monitoring warrant allows the employee

to enter and search the premises of a registered provider. If the

employee finds evidential material on the premises, the

Schedule 2 National registration

Part 2 Consequential amendments

78 Education Services for Overseas Students Legislation Amendment (Tuition Protection

Service and Other Measures) Bill 2011 No. , 2011

employee may secure the material until a search warrant can

be obtained.

�

Alternatively, an authorised employee may apply for a search

warrant under Division 4. As well as allowing the employee to

enter and search the premises of a registered provider, the

employee may also seize things under a search warrant.

79 Before Division 1 of Part 8

Insert:

Division 1A--Guide to this Part

169A Guide to this Part

�

This Part contains miscellaneous provisions, such as the

following:

(a)

publication of enforcement action and annual

reports;

(b)

delegation

powers;

(c)

provisions relating to paying amounts like fees,

penalties and charges;

(d)

giving information to relevant bodies;

(e)

review of decisions.

80 Paragraphs 176(1)(a) to (ab)

Repeal the paragraphs, substitute:

(aa) a decision that an approved provider should not be registered

under section 9AB; or

(ab) a decision that an approved provider be registered for a

specified period under section 9AC, or a decision under that

section to vary that specified period; or

(ac) a decision to impose a condition on a provider's registration

under section 9AD or 9AE; or

Schedule 2 National registration

Part 3 Contingent amendments

80 Education Services for Overseas Students Legislation Amendment (Tuition Protection

Service and Other Measures) Bill 2011 No. , 2011

Part 3--Contingent amendments

Division 1--Amendment that will not commence if the

Registration Charges Acts commence first

Education Services for Overseas Students Act 2000

82 Section 12 (note 1)

Repeal the note, substitute:

Note 1:

A provider cannot be registered under section 9AB until it has paid the

initial registration charge: see paragraph 9AB(1)(c).

Division 2--Amendments commencing immediately after

the later of the commencement of Part 2 of this

Schedule and the Registration Charges Acts

Education Services for Overseas Students Act 2000

83 Paragraph 9AB(1)(c)

Repeal the paragraph, substitute:

the provider is exempt from the requirement to do so under

regulations made under subsection 6(4) of the Education

Services for Overseas Students (Registration Charges) Act

1997); and

84 Paragraph 9AB(1)(g)

Omit "annual registration charge or", substitute "annual registration

charge, a second or third entry to market charge or a".

85 Subsection 12(1) (note 1)

Repeal the note, substitute:

Note 1:

A provider must pay 3 entry to market charges during the first 2 years

that the provider is first registered. A provider cannot get registered

under section 9AB until it has paid the first entry to market charge: see

paragraph 9AB(1)(c).

86 Paragraph 12(2)(a)

National registration Schedule 2

Contingent amendments Part 3

Education Services for Overseas Students Legislation Amendment (Tuition Protection Service and

Other Measures) Bill 2011 No. , 2011 81

Omit "section 9", substitute "section 9AB".

Education Services for Overseas Students Amendment

(Registration Charges Consequentials) Act 2011

87 Subitem 17(4) of Schedule 1

Omit "for a State under section 9", substitute "under section 9AB".

Education Services for Overseas Students (Registration

Charges) Amendment Act 2011

88 Subitem 14(2) of Schedule 1

Omit "for a State under section 9", substitute "under section 9AA".

Division 3--Repeal of provisions if this Act commences

before item 7 of Schedule 1 to the Registration

Charges Acts

Education Services for Overseas Students Amendment

(Registration Charges Consequentials) Act 2011

89 Item 7 of Schedule 1

Repeal the item.

90 Subitems 17(1) and (2) of Schedule 1

Repeal the subitems.

91 Subitem 17(4) of Schedule 1

Omit "amendments made by items 7 and", substitute "amendment made

by item".

Schedule 2 National registration

Part 3 Contingent amendments

82 Education Services for Overseas Students Legislation Amendment (Tuition Protection

Service and Other Measures) Bill 2011 No. , 2011

Division 4--Repeal of provisions if this Act commences

before other items in the Registration Charges

Acts

Education Services for Overseas Students Amendment

(Registration Charges Consequentials) Act 2011

92 Items 5 and 6 of Schedule 1

Repeal the items.

93 Items 8 and 9 of Schedule 1

Repeal the items.

National registration Schedule 2

Application, saving and transitional provisions Part 4

Education Services for Overseas Students Legislation Amendment (Tuition Protection Service and

Other Measures) Bill 2011 No. , 2011 83

Part 4--Application, saving and transitional

provisions

Division 1--Definition of ESOS Act

94 Definition of ESOS Act

In this Part:

ESOS Act means the Education Services for Overseas Students Act

2000.

Division 2--Application and transitional provisions for

national registration

95 Application--recommendations of designated authorities

Recommendations made after commencement

(1)

The amendments made by Parts 1 to 3 of this Schedule apply in relation

to any recommendation, made by a designated authority after this item

commences, that an approved provider be registered under the ESOS

Act to provide a course at a location to overseas students.

Recommendations made before commencement

(2)

The amendments made by Parts 1 to 3 of this Schedule also apply in

relation to any recommendation made by a designated authority that an

approved provider be registered under the ESOS Act to provide a

course for a State to overseas students if:

(a) the recommendation is made before this item commences;

and

(b) immediately before this item commences, the Secretary has

not yet decided whether to register the provider for the course

for the State under section 9 of that Act.

(3)

If, after this item commences, the Secretary decides:

(a) under section 9AB of the ESOS Act (as inserted by this

Schedule) to register a provider referred to in subitem (2) of

this item; or

Schedule 2 National registration

Part 4 Application, saving and transitional provisions

84 Education Services for Overseas Students Legislation Amendment (Tuition Protection

Service and Other Measures) Bill 2011 No. , 2011

(b) under section 9AG of that Act (as inserted by this Schedule)

to add a course to the registration of a provider referred to in

subitem (2) of this item;

the Secretary must determine the location or locations at which the

provider is to be registered to provide the course.

Choosing a registration to add to

(4) If:

(a) after this item commences, the Secretary decides to add a

course at a location to a provider's registration under

section 9AG of the ESOS Act (as inserted by this Schedule);

and

(b) the provider already has 2 or more other separate

registrations to provide courses to overseas students;

the Secretary may choose which registration to add the new course to.

(5)

The Secretary must use a risk management approach when considering

which registration to add a new course to.

Review of decisions

(6)

The ESOS Act applies as if section 176 of that Act included a reference

to:

(a) a decision under subitem (3) of this item to determine the

location or locations at which the provider is to be registered

to provide the course; and

(b) a decision under subitem (4) of this item to choose which

registration to add a new course to.

Note:

Section 176 of the ESOS Act allows applications to be made to the Administrative

Appeals Tribunal for review of decisions.

96 Transitional--requesting amalgamation of registrations

(1)

This item applies if, at the time this item commences, a provider has

more than one registration under the ESOS Act.

Request to amalgamate registrations

(2)

The provider may, in the approved form, request the Secretary to

amalgamate all of the provider's registrations into one registration.

National registration Schedule 2

Application, saving and transitional provisions Part 4

Education Services for Overseas Students Legislation Amendment (Tuition Protection Service and

Other Measures) Bill 2011 No. , 2011 85

(3)

The Secretary may approve a form for the purposes of subitem (2).

Secretary may amalgamate registrations or refuse request

(4)

If a provider makes a request under subitem (2), the Secretary may:

(a) amalgamate all of the provider's registrations into one

registration; or

(b) refuse to amalgamate all of the provider's registrations into

one registration.

(5)

The Secretary may choose which of the provider's registrations is to

become the provider's single registration under the ESOS Act.

(6)

The Secretary must use a risk management approach when considering

which registration to choose to become the provider's single

registration.

(7)

The Secretary may remove a provider's registration from the Register if

the Secretary amalgamates that registration into another registration

under this item.

Review of decisions

(8)

The ESOS Act applies as if section 176 of that Act included a reference

to:

(a) a decision under subitem (4) of this item to refuse to

amalgamate all of the provider's registrations into one

registration; and

(b) a decision under subitem (5) of this item to choose which

registration is to become the provider's single registration.

Note:

Section 176 of the ESOS Act allows applications to be made to the Administrative

Appeals Tribunal for review of decisions.

Division 3--Other application, saving and transitional

provisions

97 Transitional--old registrations

A provider who is registered under section 9 of the ESOS Act

immediately before this item commences is taken, after that time, to be

registered under section 9AB of that Act.

Schedule 2 National registration

Part 4 Application, saving and transitional provisions

86 Education Services for Overseas Students Legislation Amendment (Tuition Protection

Service and Other Measures) Bill 2011 No. , 2011

98 Saving--cancellation or suspension of registration of

courses for States

Despite the amendment of paragraphs 9B(2)(b) and 17(1)(b) of the

ESOS Act by this Schedule, those paragraphs continue to operate, in

relation to a cancellation or suspension that occurs before this item

commences, as if those amendments had not been made.

99 Transitional--locations already in Register

(1)

This item applies if:

(a) immediately before this item commences, a provider is

registered under the ESOS Act to provide a course for a

State; and

(b) the Register also includes a reference to one or more

locations in that State at which the provider provides that

course.

(2)

For the purposes of the ESOS Act as amended by this Schedule, the

provider is taken, after this item commences, to be registered to provide

that course at that location or those locations.

(3)

For the purposes of the ESOS Act as amended by this Schedule, if:

(a) immediately before this item commences, a provider's

registration for a course for a State is suspended; and

(b) under subitem (2), the provider is taken to be registered to

provide the course at a location or at locations in that State;

the provider's registration is taken, after this item commences, to be

suspended for the course for that location or those locations.

(4)

For the purposes of the ESOS Act as amended by this Schedule, if:

(a) immediately before this item commences, a provider's

registration for all courses for all States is suspended; and

(b) under subitem (2), the provider is taken to be registered to

provide a course at a location or locations;

the provider's registration is taken, after this item commences, to be

suspended for all courses for all locations.

100 Transitional--approved form and certificates

National registration Schedule 2

Application, saving and transitional provisions Part 4

Education Services for Overseas Students Legislation Amendment (Tuition Protection Service and

Other Measures) Bill 2011 No. , 2011 87

Approved form

(1)

A form that has been approved for a State for the purposes of paragraph

9(2)(c) of the ESOS Act immediately before this item commences is

taken, after that time, to have been approved for the purposes of

section 9AH of that Act (as inserted by this Schedule).

Certificates

(2) If:

(a) a designated authority gives the Secretary a certificate under

paragraph 9(2)(c) of the ESOS Act before this item

commences; and

(b) immediately before this item commences, the Secretary has

not yet decided whether to register the provider to whom the

certificate relates;

the certificate is taken, after this item commences, to have been given

under section 9AH of that Act (as inserted by this Schedule).

(3)

If a designated authority referred to in subitem (2) tells the Secretary in

writing, for the purposes of paragraph 9(2)(ca) of the ESOS Act, that

the provider has satisfied the designated authority that the provider is fit

and proper to be registered, the designated authority is taken to have

included such a statement in a certificate for the purposes of paragraph

9AH(b) of that Act (as inserted by this Schedule).

101 Application--period of registration

Subsection 9AC(4) of the ESOS Act (as inserted by this Schedule)

applies to any registration of a provider (whether the provider is

registered before or after this item commences).

102 Application--powers in relation to conditions

Sections 9AD, 9AE and 9AF of the ESOS Act (as inserted by this

Schedule) apply in relation to any condition imposed on a provider's

registration (whether before or after this item commences).

103 Saving--the Register

The repeal of section 10 of the ESOS Act by this Schedule does not

affect the continuity of the Register.

104 Saving--allocated numbers

Schedule 2 National registration

Part 4 Application, saving and transitional provisions

88 Education Services for Overseas Students Legislation Amendment (Tuition Protection

Service and Other Measures) Bill 2011 No. , 2011

If:

(a) before this item commences, a number has been allocated to

a provider under paragraph 10(4)(c) of the ESOS Act; and

(b) immediately before this item commences, the provider is

registered to provide a course for a State;

that number is taken, after this item commences, to be a unique

identifier that is allocated under paragraph 14A(4)(d) of that Act (as

inserted by this Schedule).

105 Transitional--regulations

Regulations that are in force under paragraph 10(4)(d) of the ESOS Act

immediately before this item commences are taken, after that time, to

have been made for the purposes of paragraph 14A(4)(i) of that Act (as

inserted by this Schedule).

106 Transitional--conditions

(1)

A condition that is in force under section 14A of the ESOS Act

immediately before this item commences is taken, after that time, to

have been imposed under section 9AD of that Act (as inserted by this

Schedule).

(2)

A condition that is in force under section 14B of the ESOS Act

immediately before this item commences is taken, after that time, to

have been imposed under section 9AE of that Act (as inserted by this

Schedule).

107 Application--amendments to section 89

The repeal of subsection 89(1) of the ESOS Act by this Schedule does

not affect the continuity of any suspension of the registration of a

provider that is in force under that subsection immediately before this

item commences.

108 Application--amendments to section 89A

(1)

The amendments to section 89A of the ESOS Act made by this

Schedule apply in relation to any registration of a provider (whether the

provider is registered before or after this item commences).

(2)

The repeal of subsections 89A(1) to (1B) of the ESOS Act by this

Schedule does not affect the continuity of any suspension of the

National registration Schedule 2

Application, saving and transitional provisions Part 4

Education Services for Overseas Students Legislation Amendment (Tuition Protection Service and

Other Measures) Bill 2011 No. , 2011 89

registration of a provider that is in force under any of those subsections

immediately before this item commences.

(3)

The repeal of subsection 89A(2) of the ESOS Act by this Schedule does

not affect the continuity of any notice:

(a) that is given under that subsection before this item

commences; and

(b) in relation to which, immediately before this item

commences, the provider has not yet paid the associated

reinstatement fee.

Schedule 3 Pre-paid fees

Part 1 Amendments

90 Education Services for Overseas Students Legislation Amendment (Tuition Protection

Service and Other Measures) Bill 2011 No. , 2011

Schedule 3--Pre-paid fees

Part 1--Amendments

Division 1--Main amendments

Education Services for Overseas Students Act 2000

1 After paragraph 4B(2)(b)

Insert:

(c)

paragraph

31(a);

2 Section 5

Insert:

pre-paid fees means tuition fees received by a registered provider

in respect of an overseas student or intending overseas student, in

relation to a study period for a course to be provided by the

provider, before the student begins the study period.

3 Section 5

Insert:

study period for a course provided by a provider means the study

period for the course set out in a written agreement made by the

provider under section 22.

4 After section 21A

Insert:

22 Requirement to provide for study periods

Written agreements to provide for study periods

(1) A registered provider for a course for a location must enter into a

written agreement with each overseas student or intending overseas

student setting out:

(a) the length of each study period for the course for the location;

and

Pre-paid fees Schedule 3

Amendments Part 1

Education Services for Overseas Students Legislation Amendment (Tuition Protection Service and

Other Measures) Bill 2011 No. , 2011 91

(b) the tuition fees for each study period for the course for the

location.

(2) The agreement may be included in the same document as the

written agreement made under section 47B (written agreement

about refund).

Requirements for study periods

(3) A study period must be no more than 24 weeks long.

(4) A course may have only one study period (subject to

subsection (3)).

(5) A study period for a course may (subject to subsection (3)) be

longer than the course.

5 After Division 1 of Part 3

Insert:

Division 2--Pre-paid fees

27 Pre-paid fees

Limit on amount of initial pre-paid fees that may be received

(1) A registered provider must not receive, in respect of an overseas

student or intending overseas student, more than 50% of the

student's total tuition fees for a course before the student has begun

the course.

(2) Subsection (1) does not apply if the course has only one study

period.

Limit on when pre-paid fees may be received once the course

begins

(3) A registered provider must not receive, in respect of an overseas

student or intending overseas student, tuition fees for a course

more than 2 weeks before the beginning of a study period for the

course.

Schedule 3 Pre-paid fees

Part 1 Amendments

92 Education Services for Overseas Students Legislation Amendment (Tuition Protection

Service and Other Measures) Bill 2011 No. , 2011

Initial pre-paid fees and payment in arrears

(4) Subsection (3) does not apply if:

(a) the fees are received before the student has begun the course;

(b) the fees relate to another study period for the course, and that

study period has already begun.

28 Obligation for registered provider to maintain designated

account

Requirement to maintain account

(1) A registered provider who receives, in respect of an overseas

student or intending overseas student, tuition fees for a course

before the student has begun the course must maintain an account

in accordance with this section.

Note:

Providers covered by section 31 are not required to comply with this

section.

Requirements for designated accounts

(2) The account must be maintained with an Australian ADI (within

the meaning of section 9 of the Corporations Act 2001).

(3) The account must be designated as the initial pre-paid fees account.

29 Obligations in relation to designated account money

Requirement to pay initial pre-paid fees received to credit of

designated account

(1) A registered provider who receives, in respect of an overseas

student or intending overseas student, tuition fees for a course

before the student has begun the course must pay the fees to the

credit of an account maintained in accordance with section 28.

Note:

Providers covered by section 31 are not required to comply with this

section.

(2) The provider must pay the fees into the account within 5 business

days of receiving the fees.

Pre-paid fees Schedule 3

Amendments Part 1

Education Services for Overseas Students Legislation Amendment (Tuition Protection Service and

Other Measures) Bill 2011 No. , 2011 93

Note:

For the definition of business day, see section 2B of the Acts

Interpretation Act 1901.

Requirement in relation to withdrawing money from account

(3) The provider must ensure that, at all times, there is a sufficient

amount (the protected amount) standing to the credit of the

account to repay all tuition fees to every overseas student or

intending overseas student (a relevant student):

(a) in respect of whom tuition fees have been paid to the

provider; and

(b) who has not yet begun the course that the provider is to

provide to the student.

(4) An amount may be withdrawn from the account, so as to reduce

the balance of the account below the protected amount, only if:

(a) the amount is withdrawn to pay a refund under section 46D,

47D or 47E to, or in relation to, a relevant student; or

(b) both of the following apply:

(i) the provider arranges, under section 46D, for a relevant

student to be offered a place in an alternative course at

the provider's expense;

(ii) the amount is withdrawn to pay the alternative provider

in relation to the relevant student; or

section 50C in relation to the relevant student.

Note 1:

Tuition fees of a relevant student cease to be part of the protected

amount (and may therefore be withdrawn from the account) once the

student begins the course that the provider is to provide to the student:

see subsection (3).

Note 2:

There are no limits on withdrawals from the account as long as the

balance of the account remains above the protected amount.

(5) An amount withdrawn in accordance with subsection (4) must not

be more than the amount of the tuition fees received by the

provider in respect of the relevant student before the student begins

the course.

Account money not available for payment of debts etc.

(6) To avoid doubt, the protected amount:

Schedule 3 Pre-paid fees

Part 1 Amendments

94 Education Services for Overseas Students Legislation Amendment (Tuition Protection

Service and Other Measures) Bill 2011 No. , 2011

(a) is not available for the payment of a debt of any creditor of

the provider, other than as referred to in subsection (4); and

(b) is not liable to be attached or taken in execution under the

order or process of a court at the instance of any creditor of

the provider, other than as referred to in subsection (4).

30 Regulations

The regulations may provide additional requirements in relation to:

(a) tuition fees for a course received by a provider, in respect of

an overseas student or intending overseas student, before the

student has begun the course; or

(b) accounts maintained under this Division.

Note:

Providers covered by section 31 are not required to comply with

regulations made under this section.

31 Exemption from requirement

The following kinds of provider are exempt from the requirements

in sections 28 and 29 and in regulations made under section 30:

(a) a provider that is administered by a State education authority;

(b) any other provider that is entitled to receive funds under a

law of the Commonwealth for recurrent expenditure for the

provision of education or training, other than one excluded

by the regulations from the scope of this paragraph;

To avoid doubt, any private corporate body established in

connection with a provider covered by paragraph (a) or (b) of this

section is not itself, by virtue of that connection alone, a provider

covered by that paragraph.

32 Offence

(1) A person commits an offence if:

(a)

either:

(i) the person is a registered provider; or

(ii) if the registered provider is an unincorporated body--

the person is the principal executive officer of the

provider; and

(b) the person engages in conduct; and

Pre-paid fees Schedule 3

Amendments Part 1

Education Services for Overseas Students Legislation Amendment (Tuition Protection Service and

Other Measures) Bill 2011 No. , 2011 95

and

(d) the provider is not covered by section 31.

Penalty: 60 penalty units.

(2) To avoid doubt, subsection (1) does not apply if a person

contravenes a requirement of regulations made under section 30.

(3) Subsection (1) is an offence of strict liability.

Note:

For strict liability, see section 6.1 of the Criminal Code.

Division 2--Consequential amendment

Education Services for Overseas Students Act 2000

6 Section 15A (after the paragraph relating to Division 1)

Insert:

�

Division 2 sets out requirements for providers who receive

tuition fees from a student before the student has begun to

study with the provider. The provider must keep those fees in

a separate account and generally cannot access the fees until

the student begins the first study period with the provider.

Schedule 3 Pre-paid fees

Part 2 Application provision

96 Education Services for Overseas Students Legislation Amendment (Tuition Protection

Service and Other Measures) Bill 2011 No. , 2011

Part 2--Application provision

7 Application

The amendments made by this Schedule apply in relation to any tuition

fees for a course that are received, after Division 1 of Part 1 of this

Schedule commences, by a registered provider, in respect of an overseas

student or intending overseas student, before the student has begun the

course.

Tuition fees Schedule 4

Amendments Part 1

Education Services for Overseas Students Legislation Amendment (Tuition Protection Service and

Other Measures) Bill 2011 No. , 2011 97

Schedule 4--Tuition fees

Part 1--Amendments

Education Services for Overseas Students Act 2000

1 Section 5 (definition of course money)

Repeal the definition.

2 Section 5 (subparagraph (b)(ii) of the definition of

monitoring purpose)

Omit "course money", substitute "pre-paid fees".

3 Section 5

Insert:

tuition fees has the meaning given by section 7.

4 Section 7

Repeal the section, substitute:

7 Meaning of tuition fees

In this Act:

tuition fees:

(a) means fees a provider receives, directly or indirectly, from:

(i) an overseas student or intending overseas student; or

(ii) another person who pays the fees on behalf of an

overseas student or intending overseas student;

that are directly related to the provision of a course that the

provider is providing, or offering to provide, to the student;

and

(b) without limiting paragraph (a), includes any classes of fees

prescribed by the regulations for the purposes of this

paragraph; and

prescribed by the regulations for the purposes of this

paragraph.

Schedule 4 Tuition fees

Part 1 Amendments

98 Education Services for Overseas Students Legislation Amendment (Tuition Protection

Service and Other Measures) Bill 2011 No. , 2011

5 Subsection 18(1)

Omit "course money" (wherever occurring), substitute "tuition fees".

6 Subsection 18(1A)

Omit "course money", substitute "tuition fees".

7 Subsection 18(2) (not including the note)

Repeal the subsection.

8 Subsection 21(1)

Omit "course money", substitute "tuition fees".

9 Paragraph 38(g)

Omit "course money", substitute "pre-paid fees".

10 Paragraph 83(1A)(b)

Omit "course money", substitute "pre-paid fees".

Schedule 5 Former accepted students

Part 1 Amendments

100 Education Services for Overseas Students Legislation Amendment (Tuition Protection

Service and Other Measures) Bill 2011 No. , 2011

Schedule 5--Former accepted students

Part 1--Amendments

Education Services for Overseas Students Act 2000

1 After subsection 19(2)

Insert:

(2A) A registered provider must give particulars of a breach by a student

under subsection (2) even if the student has ceased to be an

accepted student of the provider.

2 After subsection 20(1)

Insert:

(1A) A registered provider must send a notice to a student under

subsection (1) even if the student has ceased to be an accepted

student of the provider.

3 Paragraph 97(2)(b)

After "accepted students", insert "and former accepted students".

4 Subsection 109(1)

After "accepted students", insert "and former accepted students".

5 Subsection 175(2)

Omit "accepted student's student visa to the registered provider for the

accepted student", substitute "accepted student's, or former accepted

student's, student visa to the registered provider for the student".

Ombudsman Act 1976

6 Subsection 19ZJ(3)

Omit "or an accepted student,", substitute "an accepted student, or a

former accepted student,".

7 Subsection 19ZK(5) (definition of statutory complaint

handler)

Schedule 5 Former accepted students

Part 2 Application provision

102 Education Services for Overseas Students Legislation Amendment (Tuition Protection

Service and Other Measures) Bill 2011 No. , 2011

Part 2--Application provision

8 Application

(1)

The amendments to the Education Services for Overseas Students Act

2000 that are made by this Schedule apply in relation to:

(a) any breach of a student visa that occurs after this item

commences; and

(b) any information that relates to an accepted student or former

accepted student (whether the information was obtained

before or after this item commences).

(2)

The amendments to the Ombudsman Act 1976 that are made by this

Schedule apply in relation to any complaint made, or investigation

commenced, after commencement.

Record keeping requirements Schedule 6

Amendments Part 1

Education Services for Overseas Students Legislation Amendment (Tuition Protection Service and

Other Measures) Bill 2011 No. , 2011 103

Schedule 6--Record keeping requirements

Part 1--Amendments

Education Services for Overseas Students Act 2000

1 Section 5

Insert:

approved unit of study has the meaning given by section 21.

2 Before subsection 21(1)

Insert:

Records of students' details

3 Subsections 21(2) and (3)

Repeal the subsections, substitute:

(2) The records must consist of the following details for each accepted

student:

(a) the student's current residential address;

(b) the student's mobile phone number (if any);

(d) any other details prescribed by the regulations.

(2A) A registered provider must have a procedure to ensure that, at least

every 6 months, while the student remains an accepted student of

the provider:

(a) the provider confirms, in writing, the details referred to in

subsection (2) with the student; and

(b) the records are updated accordingly.

Records of assessment

(2B)

If:

(a) an accepted student of a registered provider completes an

approved unit of study for a course; and

(b) the student's progress in that unit is assessed;

Schedule 6 Record keeping requirements

Part 1 Amendments

104 Education Services for Overseas Students Legislation Amendment (Tuition Protection

Service and Other Measures) Bill 2011 No. , 2011

the provider must record the outcome of the student's assessment

for the unit.

(2C) A record under subsection (2B) must be:

(a) kept in accordance with any requirements prescribed by the

regulations; and

(b)

kept

up-to-date.

Retention of records

(3) The provider must retain records kept under this section for at least

2 years after the person ceases to be an accepted student. However,

the records do not need to be kept up-to-date after the cessation.

Note:

The Minister may take action under Division 1 of Part 6 against a

registered provider that has breached this section.

4 Before subsection 21(5)

Insert:

Offence

5 At the end of section 21

Add:

Meaning of approved unit of study

(7) In this Act:

approved unit of study for a course means a unit of study (however

described) that has been approved for the course by a designated

authority.

Record keeping requirements Schedule 6

Application and transitional provision Part 2

Education Services for Overseas Students Legislation Amendment (Tuition Protection Service and

Other Measures) Bill 2011 No. , 2011 105

Part 2--Application and transitional provision

6 Application

(1)

The amendments made by this Schedule (including the amendments

made in relation to student details) apply in relation to any approved

unit of study that an accepted student begins after this item commences.

(2)

The amendments made by this Schedule (including the amendments

made in relation to student details) also apply in relation to an approved

unit of study that:

(a) an accepted student begins before this item commences; but

(b) is not completed by the time this item commences.

However, the amendments apply only in relation to the part of the unit

of study that occurs after this item commences.

7 Transitional--regulations

Regulations that are in force under subsection 21(2) of the Education

Services for Overseas Students Act 2000 immediately before this item

commences are taken, after that time, to have been made for the

purposes of paragraph 21(2)(d) of that Act (as inserted by this

Schedule).

Schedule 7 Definition of designated authority

Part 1 Amendment that will not commence if the TEQSA Consequential Act

commences first

106 Education Services for Overseas Students Legislation Amendment (Tuition Protection

Service and Other Measures) Bill 2011 No. , 2011

Schedule 7--Definition of designated

authority

Part 1--Amendment that will not commence if the

TEQSA Consequential Act commences first

Education Services for Overseas Students Act 2000

1 Section 5 (after paragraph (a) of the definition of

designated authority)

Insert:

(aa) to the extent that the provider:

(i) is a registered training organisation (within the meaning

of that Act), but not an NVR registered training

organisation; and

(ii) is seeking to provide courses to overseas students for a

non-referring State (within the meaning of that Act);

the National VET Regulator; or

Definition of designated authority Schedule 7

Amendment commencing immediately after the later of Royal Assent and the

commencement of the TEQSA Consequential Act Part 2

Education Services for Overseas Students Legislation Amendment (Tuition Protection Service and

Other Measures) Bill 2011 No. , 2011 107

Part 2--Amendment commencing immediately after

the later of Royal Assent and the

commencement of the TEQSA

Consequential Act

Education Services for Overseas Students Act 2000

2 Subsection 7A(1) (after table item 2)

Insert:

a provider that:

(a) is a registered training organisation

(within the meaning of that Act), but

not an NVR registered training

organisation; and

(b) is seeking to provide courses to

overseas students for a non-referring

State (within the meaning of that Act)

the National VET Regulator

Schedule 7 Definition of designated authority

Part 3 Amendment commencing immediately after the commencement of Division 2

of this Part

108 Education Services for Overseas Students Legislation Amendment (Tuition Protection

Service and Other Measures) Bill 2011 No. , 2011

Part 3--Amendment commencing immediately after

the commencement of Division 2 of this Part

Education Services for Overseas Students Act 2000

3 Subsection 7A(1) (paragraph (b) of cell at table item 2A,

column headed "For a provider, to the extent that it

is:")

Omit "courses to overseas students for", substitute "courses to overseas

students at locations in".

Miscellaneous Schedule 8

Main amendments Part 1

Education Services for Overseas Students Legislation Amendment (Tuition Protection Service and

Other Measures) Bill 2011 No. , 2011 109

Schedule 8--Miscellaneous

Part 1--Main amendments

Education Services for Overseas Students Act 2000

1 Section 9A

Repeal the section.

2 Section 40 (note)

Omit "or re-registration (see section 9A)".

3 Sections 92A and 92B

Repeal the sections.

4 Section 110

Repeal the section.

5 At the end of Part 6

Add:

Division 4--Enforceable undertakings

110A Acceptance of undertakings

(1) The Secretary may accept any of the following undertakings:

(a) a written undertaking given by a registered provider that the

provider will take specified action in order for the provider to

comply with a provision of this Act, the national code or a

condition of the provider's registration;

(b) a written undertaking given by a registered provider that the

provider will refrain from taking specified action in order for

the provider to comply with a provision of this Act, the

national code or a condition of the provider's registration;

provider will take specified action directed towards ensuring

that, in the future, the provider does not (or is unlikely to)

Schedule 8 Miscellaneous

Part 1 Main amendments

110 Education Services for Overseas Students Legislation Amendment (Tuition Protection

Service and Other Measures) Bill 2011 No. , 2011

contravene a provision of this Act, the national code or a

condition of the provider's registration.

(2) The provider may withdraw or vary the undertaking at any time,

but only with the written consent of the Secretary.

(3) The consent of the Secretary is not a legislative instrument.

(4) The Secretary may, by written notice given to the provider, cancel

the undertaking.

110B Enforcement of undertakings

(1) The Secretary may apply to the Federal Court of Australia, or the

Federal Magistrates Court, for an order under subsection (2) if:

(a) a registered provider has given an undertaking under

section 110A; and

(b) the undertaking has not been withdrawn or cancelled; and

(c)

the

Secretary considers that the provider has breached the

undertaking.

(2)

the

Court is satisfied that the provider has breached the

undertaking, the Court may make any or all of the following

orders:

(a) an order directing the provider to comply with the

undertaking;

(b) an order directing the provider to pay to the Commonwealth

an amount up to the amount of any financial benefit that the

provider has obtained directly or indirectly and that is

reasonably attributable to the breach;

provider to compensate any person who has suffered loss or

damage as a result of the breach;

(d) any other order that the Court considers appropriate.

6 At the end of subsection 113(4)

Add:

; or (e) an officer or employee of an administrator or liquidator of a

registered provider or former registered provider.

7 At the end of subsection 116(3)

Miscellaneous Schedule 8

Main amendments Part 1

Education Services for Overseas Students Legislation Amendment (Tuition Protection Service and

Other Measures) Bill 2011 No. , 2011 111

Add:

; or (e) an officer or employee of an administrator or liquidator of a

registered provider or former registered provider.

8 After subsection 170(2)

Insert:

(2AA) Without limiting subsection (2), the Secretary may, by signed

writing, delegate all or any of the Secretary's power under

Subdivision A of Division 2 of Part 7 (production notices) to a

person in the Department who holds, or is acting in, an Executive

Level 1 or 2, or equivalent, position.

9 Section 176A

Repeal the section.

Schedule 8 Miscellaneous

Part 2 Consequential amendment

112 Education Services for Overseas Students Legislation Amendment (Tuition Protection

Service and Other Measures) Bill 2011 No. , 2011

Part 2--Consequential amendment

Education Services for Overseas Students Act 2000

10 At the end of section 83A

Add:

� The

Secretary may accept a written undertaking under

Division 4 relating to complying with a provision of this Act,

the national code or a provision of a provider's registration.

The Secretary may apply to a court to enforce the undertaking.

Commonwealth of Australia Bills

EDUCATION SERVICES FOR OVERSEAS STUDENTS LEGISLATION AMENDMENT (TUITION PROTECTION SERVICE AND OTHER MEASURES) BILL 2011