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2013-2014-2015
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
EDUCATION SERVICES FOR OVERSEAS STUDENTS
AMENDMENT (STREAMLINING REGULATION)
BILL 2015
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Education and Training,
the Honourable Christopher Pyne MP)
Education Services for Overseas Students
Amendment (Streamlining Regulation) Bill 2015
OUTLINE
The purpose of the Bill is to amend the Education Services for Overseas
Students Act 2000 (ESOS Act) to introduce efficiency measures that will
reduce the regulatory burden and cost on education institutions. These
measures will significantly reduce red tape, while maintaining the quality and
reputation of Australia‟s world class student protections in international
education. They also align with the Government‟s priority - to support
Australia‟s education providers to build on their successes as world leaders in
international education.
Throughout 2014-15 the Government consulted extensively with international
education stakeholders about priority areas for reform of the ESOS Act and its
associated legislative framework. On 1 October 2014, a discussion paper
titled Reform of the ESOS framework was released for public consultation to
canvass views from all interested stakeholders. Overwhelmingly stakeholders
highlighted the need to cut red tape and costs to education institutions from
unnecessary regulation which did not provide any benefits to students. Much
of this was identified as arising from the duplication and inconsistency in
quality assurance processes across the ESOS Act, the Tertiary Education
Quality and Standards Agency Act 2011 (TEQSA Act), and the National
Vocational Education and Training Regulator Act 2011 (NVETR Act).
Stakeholders also sought to increase their operating flexibility in order to focus
on their core business of providing education to students.
Following on from these early consultations the Government has continued to
work collaboratively with stakeholders to develop reforms that reflect their
views and create a more appropriate and efficient regulatory framework, while
maintaining important student protections.
The Bill contains four key measures to reduce red tape for education
providers, saving around an estimated $75.9 million. As well as benefits to
providers, these measures will allow greater choice for students simply by
focussing more appropriately and effectively on risk within the international
education sector.
The first deregulatory measure removes the existing requirement on all
providers to report all instances of student default (as defined in the ESOS
Act) within a very short timeframe - five days. It will remove the requirement
to report on the outcome of a student default, except where the provider has
paid a refund to a student under the legislative instrument made by the
Minister (primarily in cases of visa refusal). This ensures reporting student
information is sufficiently robust but does not impose an unnecessary
1
administrative burden on education providers where matters can be resolved
with far less red tape.
The second deregulatory measure removes the requirement for non-exempt
providers to maintain an account in which all tuition fees paid prior to
commencement of a course are held, referred to as a "designated account".
Removing this requirement will be of significant benefit to the education
providers currently not exempt - that is, private providers not administered by
a State authority or in receipt of recurrent Commonwealth funding for
education and training. The requirement on providers to keep all tuition fees
paid by students before a course commences in a designated account
significantly reduces competition and prevents them from being able to use
those funds to invest in providing a higher quality course. Further, the
restriction imposes regulation equally on all private providers, regardless of
whether the provider presents a high risk that warrants such a restriction on
their cash flow. It therefore does not recognise or reward good practice
among private providers.
The third deregulatory measure amends the current restriction on education
providers receiving more than 50 per cent of tuition fees for a course (if the
course is longer than 24 weeks duration) before the student commences the
course. The change will give students (or the person responsible for paying
on their behalf, such as their sponsor) the ability to choose to pay more, which
is frequently the case with students in receipt of scholarships. The
amendments make the requirements more administratively flexible and may
be more favourable for students or their sponsors who are paying the tuition
fees, in terms of exchange rates or managing their own cash flow. The intent
of the amendment is to ensure the student, or person who incurs the expense
of paying the student‟s tuition fees, has more choice. However, the intent of
the provision remains that there be no requirement for the student or the
person paying the fees to pay more. The focus of the amendment is enabling
student choice in how much they can pay to providers.
Within this amendment the exemption for shorter courses is maintained. The
exemption from this requirement will now apply to courses of up to 25 weeks
in length. This slightly amends the existing exemptions for courses of less
than 24 weeks (a study period) to address stakeholder issues regarding some
courses organised in five-week blocks. The amendments also remove the
ancillary requirement that any further tuition fees must not be required until
two weeks before the second study period, thus simplifying for providers and
students the ongoing collection of payments. This change also aligns with the
fourth deregulatory measure, which removes the concept of study periods
from the ESOS Act.
The fourth deregulatory measure has two elements. The first is an
amendment to remove the definition of a "study period", which set in place an
arbitrary and prescriptive maximum period of study within a course of 24
weeks. The second is a removal of the requirement for providers to enter into
an agreement with each overseas student setting out the study periods for
their enrolment and the tuition fees payable for each study period. The
2
requirement is already more effectively and appropriately set out, in
conjunction with other information on a student‟s rights and obligations, in the
National Code of Practice for Providers of Education and Training to
Overseas Students (national code), a legislative instrument made by the
Minister under Part 4 of the ESOS Act.
Other changes proposed in the Bill are designed to streamline the current
registration and monitoring of providers, by vesting powers directly in the
Tertiary Education Quality and Standards Agency (TEQSA) and the Australian
Skills Quality Authority (ASQA). Currently these agencies act as delegates of
the Secretary or the Minister. The changes to the ESOS Act create a single
role - the "ESOS agency" for a provider - which will be used to refer to the
Secretary, TEQSA and ASQA as well as any other agency prescribed by
legislative instrument as an "ESOS agency". The important role of states and
territories will be retained in relation to school providers, which will now be
recognised in the ESOS Act as a „"designated State authority‟". Related
amendments clarify that nothing in the ESOS Act creates or places a duty on
a designated State authority.
The changes also reduce red tape for ESOS agencies themselves. As a
consequence of these amendments, ESOS agencies will have the flexibility to
apply their own risk-based frameworks in a more streamlined manner so that
registration and assessment frameworks and those under ESOS operate
more clearly, effectively and efficiently. This addresses a key recommendation
of the Review of Higher Education Regulation by Professor Kwong Lee Dow
AO and Professor Valerie Braithwaite, which indicated that overlap and
duplication in requirements should be minimised wherever possible.
The amendments mean that providers will be able to apply to the ESOS
agency to register or renew their registration, or add courses at locations to
their existing registration. When assessing applications, the ESOS agency will
need to be satisfied that the provider is complying, or will comply, with the
ESOS Act, and have no reason to believe that the provider does not have the
clearly demonstrated capacity to provide education of a satisfactory standard
or has not been providing or will not provide education of a satisfactory
standard.
Further amendments will clarify that, where a provider has applied to the
ESOS agency to renew its registration, the provider‟s registration will continue
until the ESOS agency‟s decision on the application takes effect.
Where a provider‟s registration has expired and it has not sought to renew the
registration, the provider‟s registration will also continue in effect, but only for
limited purposes. School providers will only be able to continue providing their
existing courses to their existing students until the end of the year in which
their registration expired. Other providers will only be able to continue
providing their existing courses to students who were enrolled and had
commenced their course at the date of expiry of the provider‟s registration. In
either case, the provider will not be able to recruit or enrol new students in the
course after the expiry date of its registration.
3
The amendments will give the ESOS agency the discretion to determine the
period of registration for a provider of up to seven years, removing the
minimum period of registration and extending the maximum period to align
with the TEQSA Act and the NVETR Act. Additional measures will provide the
ESOS agency with the ability to extend a provider‟s registration once during a
particular period for the purpose of aligning the ESOS registration date with
an applicable registration date as a higher education provider, a registered
training organisation or an approved school provider. This will reduce the
occurrence of duplicative registration processes across domestic and
international frameworks.
The ESOS agency must use a risk management approach when making
registration related decisions; however, amendments will enable the ESOS
agency to consider any relevant material or request additional material as part
of that process. The ESOS agency may consult the provider in determining
the information that can be used.
To ensure consistency of enforcement action, amendments will clarify that
enforcement action may be taken by an ESOS agency for a breach of either
the English Language Courses for Overseas Students (ELICOS) Standards or
the Foundation Program Standards. Similarly, the compliance monitoring
provisions in the ESOS Act will be extended to apply to determining
compliance with the ELICOS Standards and Foundation Program Standards.
Further alignment of the review processes under the TEQSA Act and NVETR
Act to reduce red tape for education providers will be achieved through
amendments to enable providers to apply for an internal review of certain
decisions made by a delegate of the ESOS agency. A reviewable decision
made by the ESOS agency itself will be subject to review by the
Administrative Appeals Tribunal. This amendment is intended to reduce the
cost and time associated with an immediate and direct appeal to the
Administrative Appeals Tribunal.
As a consequence of the changes to reduce red tape by creating the role of
the ESOS agency, other requirements have been amended to enable the
ESOS agency to make a determination about whether a provider is fit and
proper to be registered. Further, an ESOS agency will now have additional
flexibility to deal with the ESOS registration of a provider whose designated
authority approval has ceased; the cancellation of the provider‟s ESOS
registration will no longer be automatic.
A number of amendments to definitions have been updated to reflect the new
measures in the Bill. Amendments include a revised definition of "provider" to
ensure that there is scope for providers who are not subject to a regulatory
framework, for example under the TEQSA Act and the NVETR Act, to be
registered to provide courses to overseas students. In such cases the
appropriate ESOS agency will be able to be specified by the Minister in a
legislative instrument. In addition the term "authorised employee" in the ESOS
Act will be replaced by "authorised officer" to align with the term used in the
TEQSA Act and NVETR Act. The "authorised officer" will be defined to include
4
all appropriate office holders at TEQSA and ASQA, the Secretary‟s
department and other ESOS agencies.
To further reduce red tape by increasing consistency between the ESOS Act,
the TEQSA Act and the NVETR Act, a number of powers and responsibilities
will now be directly vested in the ESOS agency. To balance oversight,
amendments include a power for the Minister to direct an ESOS agency in the
performance of its functions under the ESOS Act. A direction may not be
issued about or in relation to a particular provider or registered provider.
Consistent with the powers being vested directly in the ESOS agency rather
than delegated by the Minister, amendments will enable the ESOS agency to
publish information about action taken under Part 6 (enforcement) and Part 7
(monitoring and enforcement) of the ESOS Act. The Secretary may specify in
a legislative instrument the way in which the information is published.
Additional provisions relate to the discharge of functions by the Tuition
Protection Service (TPS) Director. In discharging those functions, the TPS
Director is privy to certain information on the activity of education providers
and plays an important role in ensuring providers meet their obligations to
students. Limitations around the ability of the TPS Director to discharge that
role necessitate amendments to allow the TPS Director to issue a production
notice to obtain information or documents relevant to the performance of the
Director‟s functions. The TPS Director will be able to be assisted by TPS
officers, who will have defined roles and responsibilities in that capacity.
Further amendments allow the TPS Director to make a recommendation to an
ESOS agency that the agency take enforcement action against a provider.
The ESOS agency must consider the TPS Director‟s recommendation. These
provisions will strengthen information sharing powers between the TPS
Director and relevant agencies where there are concerns regarding high-risk
providers.
An additional amendment ensures the TPS Director is identified as an
"official" of the department within the meaning of the Public Governance,
Performance and Accountability Act 2013.
Under the ESOS Act currently, when a provider fails to pay its annual
registration charge or entry to market charge on time its registration is
automatically suspended. By contrast, when a provider fails to pay its TPS
levy on time, the TPS Director can issue it with a reminder notice. It is only
when the provider fails to pay the TPS levy in accordance with the reminder
notice that its registration is suspended. To enhance fairness and
consistency, the Bill will amend the ESOS Act to enable the Secretary to issue
a reminder notice to a provider that hasn‟t paid its annual registration charge
or entry to market charge on time, and the provider‟s registration will only be
suspended if it doesn‟t comply with the notice.
Supporting the greater alignment of quality assurance frameworks to guide
future reform of the ESOS framework, a minor amendment clarifies the
purpose and content of the national code as providing nationally consistent
5
standards and procedures for those who provide education services to
overseas students. A further amendment removes the focus on refunds as the
major component of agreements between providers and students, ensuring
these can more broadly outline students‟ rights and obligations.
Additional measures set out application, transitional and savings provisions
for the purposes of the Bill.
6
FINANCIAL IMPACT STATEMENT
The implementation of the Bill will require system changes to the Provider
Registration and International Student Management System (PRISMS), the
Commonwealth Register of Institutions and Courses for Overseas Students
(CRICOS), and the TPS IT system.
The cost of the system changes required by the Bill has been estimated at
$0.4m. System modifications will be required to facilitate the changes to the
requirements for providers to report on their tuition protection obligations,
student enrolments and visa breaches by students. Further enhancements to
the system will support a more streamlined registration process for school
providers.
The financial impact on the Commonwealth is limited to the initial cost of the
modifications to the system and in the long term is expected to be budget
neutral as a result of the streamlining measures and significantly reduced data
reporting requirements for providers.
7
REGULATION IMPACT STATEMENT
The Regulation Impact Statement for Proposed changes to the Education
Services for Overseas Students framework is at Attachment A.
8
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011
EDUCATION SERVICES FOR OVERSEAS STUDENTS
AMENDMENT (STREAMLINING REGULATION) BILL 2015
This Bill is compatible with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of the Human
Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
The purpose of the Bill is to amend the Education Services for Overseas
Students Act 2000 (ESOS Act) to introduce efficiency measures that will
reduce the regulatory burden and cost on education institutions. These
measures will significantly reduce red tape, while maintaining the quality and
reputation of Australia‟s world class student protections in international
education. They also align with the Government‟s priority - to support
Australia‟s education providers to build on their successes as world leaders in
international education.
Throughout 2014-15 the Government consulted extensively with international
education stakeholders about priority areas for reform of the ESOS Act and its
associated legislative framework. On 1 October 2014, a discussion paper
titled Reform of the ESOS framework was released for public consultation to
canvass views from all interested stakeholders. Overwhelmingly stakeholders
highlighted the need to cut red tape and costs to education institutions from
unnecessary regulation which did not provide any benefits to students. Much
of this was identified as arising from the duplication and inconsistency in
quality assurance processes across the ESOS Act, the Tertiary Education
Quality and Standards Agency Act 2011 (TEQSA Act), and the National
Vocational Education and Training Regulator Act 2011 (NVETR Act).
Stakeholders also sought to increase their operating flexibility in order to focus
on their core business of providing education to students.
Following on from these early consultations the Government has continued to
work collaboratively with stakeholders to develop reforms that reflect their
views and create a more appropriate and efficient regulatory framework, while
maintaining important student protections.
The Bill contains four key measures to reduce red tape for education
providers, saving around $75.9 million. As well as benefits to providers, these
measures will allow greater choice for students simply by focussing more
appropriately and effectively on risk within the international education sector.
9
The first deregulatory measure removes the existing requirement on all
providers to report all instances of student default (as defined in the ESOS
Act) within a very short timeframe - five days. It will remove the requirement
to report on the outcome of a student default, except where the provider has
paid a refund to a student under the legislative instrument made by the
Minister (primarily in cases of visa refusal). This ensures reporting student
information is sufficiently robust but does not impose an unnecessary
administrative burden on education providers where matters can be resolved
with far less red tape.
The second deregulatory measure removes the requirement for non-exempt
providers to maintain an account in which all tuition fees paid prior to
commencement of a course are held, referred to as a "designated account".
Removing this requirement will be of significant benefit to the education
providers currently not exempt - that is, private providers not administered by
a State authority or in receipt of recurrent Commonwealth funding for
education and training. The requirement on providers to keep all tuition fees
paid by students before a course commences in a designated account
significantly reduces competition and prevents them from being able to use
those funds to invest in providing a higher quality course. Further, the
restriction imposes regulation equally on all private providers, regardless of
whether the provider presents a high risk that warrants such a restriction on
their cash flow. It therefore does not recognise or reward good practice
among private providers.
The third deregulatory measure amends the current restriction on education
providers receiving more than 50 per cent of tuition fees for a course (if the
course is longer than 24 weeks duration) before the student commences the
course. The change will give students (or the person responsible for paying
on their behalf, such as their sponsor) the ability to choose to pay more, which
is frequently the case with students in receipt of scholarships. The
amendments make the requirements more administratively flexible and may
be more favourable for students or their sponsors who are paying the tuition
fees, in terms of exchange rates or managing their own cash flow. The intent
of the amendment is to ensure the student, or person who incurs the expense
of paying the student‟s tuition fees, has more choice. However, the intent of
the provision remains that there be no requirement for the student or the
person paying the fees to pay more. The focus of the amendment is enabling
student choice in how much they can pay to providers.
Within this amendment the exemption for shorter courses is maintained. The
exemption from this requirement will now apply to courses of up to 25 weeks
in length. This slightly amends the existing exemptions for courses of less
than 24 weeks (a study period) to address stakeholder issues regarding some
courses organised in five-week blocks. The amendments also remove the
ancillary requirement that any further tuition fees must not be required until
two weeks before the second study period, thus simplifying for providers and
students the ongoing collection of payments. This change also aligns with the
10
fourth deregulatory measure, which removes the concept of study periods
from the ESOS Act.
The fourth deregulatory measure has two elements. The first is an
amendment to remove the definition of a "study period", which set in place an
arbitrary and prescriptive maximum period of study within a course of 24
weeks. The second is a removal of the requirement for providers to enter into
an agreement with each overseas student setting out the study periods for
their enrolment and the tuition fees payable for each study period. The
requirement is already more effectively and appropriately set out, in
conjunction with other information on a student‟s rights and obligations, in the
National Code of Practice for Providers of Education and Training to
Overseas Students (national code), a legislative instrument made by the
Minister under Part 4 of the ESOS Act.
Other changes proposed in the Bill are designed to streamline the current
registration and monitoring of providers, by vesting powers directly in the
Tertiary Education Quality and Standards Agency (TEQSA) and the Australian
Skills Quality Authority (ASQA). Currently these agencies act as delegates of
the Secretary or the Minister. The changes to the ESOS Act create a single
role - the "ESOS agency" for a provider - which will be used to refer to the
Secretary, TEQSA and ASQA as well as any other agency prescribed by
legislative instrument as an "ESOS agency". The important role of states and
territories will be retained in relation to school providers, which will now be
recognised in the ESOS Act as a „"designated State authority‟". Related
amendments clarify that nothing in the ESOS Act creates or places a duty on
a designated State authority.
The changes also reduce red tape for ESOS agencies themselves. As a
consequence of these amendments, ESOS agencies will have the flexibility to
apply their own risk-based frameworks in a more streamlined manner so that
registration and assessment frameworks and those under ESOS operate
more clearly, effectively and efficiently. This addresses a key recommendation
of the Review of Higher Education Regulation by Professor Kwong Lee Dow
AO and Professor Valerie Braithwaite, which indicated that overlap and
duplication in requirements should be minimised wherever possible.
The amendments mean that providers will be able to apply to the ESOS
agency to register or renew their registration, or add courses at locations to
their existing registration. When assessing applications, the ESOS agency will
need to be satisfied that the provider is complying, or will comply, with the
ESOS Act, and have no reason to believe that the provider does not have the
clearly demonstrated capacity to provide education of a satisfactory standard
or has not been providing or will not provide education of a satisfactory
standard.
Further amendments will clarify that, where a provider has applied to the
ESOS agency to renew its registration, the provider‟s registration will continue
until the ESOS agency‟s decision on the application takes effect.
11
Where a provider‟s registration has expired and it has not sought to renew the
registration, the provider‟s registration will also continue in effect, but only for
limited purposes. School providers will only be able to continue providing their
existing courses to their existing students until the end of the year in which
their registration expired. Other providers will only be able to continue
providing their existing courses to students who were enrolled and had
commenced their course at the date of expiry of the provider‟s registration. In
either case, the provider will not be able to recruit or enrol new students in the
course after the expiry date of its registration.
The amendments will give the ESOS agency the discretion to determine the
period of registration for a provider of up to seven years, removing the
minimum period of registration and extending the maximum period to align
with the TEQSA Act and the NVETR Act. Additional measures will provide the
ESOS agency with the ability to extend a provider‟s registration once during a
particular period for the purpose of aligning the ESOS registration date with
an applicable registration date as a higher education provider, a registered
training organisation or an approved school provider. This will reduce the
occurrence of duplicative registration processes across domestic and
international frameworks.
The ESOS agency must use a risk management approach when making
registration related decisions; however, amendments will enable the ESOS
agency to consider any relevant material or request additional material as part
of that process. The ESOS agency may consult the provider in determining
the information that can be used.
To ensure consistency of enforcement action, amendments will clarify that
enforcement action may be taken by an ESOS agency for a breach of either
the English Language Courses for Overseas Students (ELICOS) Standards or
the Foundation Program Standards. Similarly, the compliance monitoring
provisions in the ESOS Act will be extended to apply to determining
compliance with the ELICOS Standards and Foundation Program Standards.
Further alignment of the review processes under the TEQSA Act and NVETR
Act to reduce red tape for education providers will be achieved through
amendments to enable providers to apply for an internal review of certain
decisions made by a delegate of the ESOS agency. A reviewable decision
made by the ESOS agency itself will be subject to review by the
Administrative Appeals Tribunal. This amendment is intended to reduce the
cost and time associated with an immediate and direct appeal to the
Administrative Appeals Tribunal.
As a consequence of the changes to reduce red tape by creating the role of
the ESOS agency, other requirements have been amended to enable the
ESOS agency to make a determination about whether a provider is fit and
proper to be registered. Further, an ESOS agency will now have additional
flexibility to deal with the ESOS registration of a provider whose designated
authority approval has ceased; the cancellation of the provider‟s ESOS
registration will no longer be automatic.
12
A number of amendments to definitions have been updated to reflect the new
measures in the Bill. Amendments include a revised definition of "provider" to
ensure that there is scope for providers who are not subject to a regulatory
framework, for example under the TEQSA Act and the NVETR Act, to be
registered to provide courses to overseas students. In such cases the
appropriate ESOS agency will be able to be specified by the Minister in a
legislative instrument. In addition the term "authorised employee" in the ESOS
Act will be replaced by "authorised officer" to align with the term used in the
TEQSA Act and NVETR Act. The "authorised officer" will be defined to include
all appropriate office holders at TEQSA and ASQA, the Secretary‟s
department and other ESOS agencies.
To further reduce red tape by increasing consistency between the ESOS Act,
the TEQSA Act and the NVETR Act, a number of powers and responsibilities
will now be directly vested in the ESOS agency. To balance oversight,
amendments include a power for the Minister to direct an ESOS agency in the
performance of its functions under the ESOS Act. A direction may not be
issued about or in relation to a particular provider or registered provider.
Consistent with the powers being vested directly in the ESOS agency rather
than delegated by the Minister, amendments will enable the ESOS agency to
publish information about action taken under Part 6 (enforcement) and Part 7
(monitoring and enforcement) of the ESOS Act. The Secretary may specify in
a legislative instrument the way in which the information is published.
Additional provisions relate to the discharge of functions by the Tuition
Protection Service (TPS) Director. In discharging those functions, the TPS
Director is privy to certain information on the activity of education providers
and plays an important role in ensuring providers meet their obligations to
students. Limitations around the ability of the TPS Director to discharge that
role necessitate amendments to allow the TPS Director to issue a production
notice to obtain information or documents relevant to the performance of the
Director‟s functions. The TPS Director will be able to be assisted by TPS
officers, who will have defined roles and responsibilities in that capacity.
Further amendments allow the TPS Director to make a recommendation to an
ESOS agency that the agency take enforcement action against a provider.
The ESOS agency must consider the TPS Director‟s recommendation. These
provisions will strengthen information sharing powers between the TPS
Director and relevant agencies where there are concerns regarding high-risk
providers.
An additional amendment ensures the TPS Director is identified as an
"official" of the department within the meaning of the Public Governance,
Performance and Accountability Act 2013.
Under the ESOS Act currently, when a provider fails to pay its annual
registration charge or entry to market charge on time its registration is
automatically suspended. By contrast, when a provider fails to pay its TPS
levy on time, the TPS Director can issue it with a reminder notice. It is only
13
when the provider fails to pay the TPS levy in accordance with the reminder
notice that its registration is suspended. To enhance fairness and
consistency, the Bill will amend the ESOS Act to enable the Secretary to issue
a reminder notice to a provider that hasn‟t paid its annual registration charge
or entry to market charge on time, and the provider‟s registration will only be
suspended if it doesn‟t comply with the notice.
Supporting the greater alignment of quality assurance frameworks to guide
future reform of the ESOS framework, a minor amendment clarifies the
purpose and content of the national code as providing nationally consistent
standards and procedures for those who provide education services to
overseas students. A further amendment removes the focus on refunds as the
major component of agreements between providers and students, ensuring
these can more broadly outline students‟ rights and obligations.
Additional measures set out application, transitional and savings provisions
for the purposes of the Bill.
Human Rights Implications
The Bill engages the following human rights:
the right to education - Article 13 of the International Covenant on
Economic, Social and Cultural Rights (ICESCR)
the right to privacy - Article 17 on of the International Covenant on Civil
and Political Rights (ICCPR)
the rights of the child - Article 3 of the Convention of the Rights of the
Child (CRC)
Right to Education
This Bill engages the right to education contained in Article 13 of the ICESCR.
Article 13 of the ICESCR recognises the right of everyone to education.
The changes to the ESOS Act proposed in the Bill are designed to streamline
the current arrangements for the registration, assessment and monitoring of
providers of education to overseas students. As a consequence of the
amendments in the Bill, ESOS agencies will have the flexibility to apply their
own risk-based frameworks in a more streamlined manner so that registration,
assessment and monitoring of providers of education to overseas students
operates more clearly, effectively and efficiently.
The Bill provides ESOS agencies and the TPS Director with the necessary
powers to undertake their functions and ensure standards of education to
overseas students are maintained. Overall the Bill engages the rights of
overseas students to quality education by enabling regulatory agencies to
more effectively and efficiently assess and monitor the quality of education
providers.
14
The Bill is compatible with the right to education.
The Right to Privacy
The Bill engages the right to privacy which is provided for in Article 17 of the
ICCPR. In particular, Article 17 provides that „no one shall be subjected to
arbitrary or unlawful interference with his privacy, family, home or
correspondence, nor to unlawful attacks on his honour and reputation‟.
The Bill contains provisions which amend the requirements in the ESOS Act
relating to the provider entering information about accepted students into the
computer system established by the Secretary of the Department of
Education and Training (known as PRISMS) when specified events occur.
To the extent that the measures in the Bill limit the right, as personal
information about students will be entered into PRISMS, this is justifiable as
the inclusion of the information in PRISMS facilitates the effective regulation
of the sector.
The Bill is compatible with the right to privacy.
Rights of the Child
The Bill also engages the rights of the child which are provided for in Article 3
of the CRC. Article 3 of the CRC requires that in all actions concerning
children „the best interests of the child shall be a primary consideration‟.
The Bill contains measures which maintain the protections for students under
the age of 18 by ensuring that where this more vulnerable cohort of students
is enrolled in education and they do not begin, or they cease their course, the
provider will be required to enter the information into PRISMS within 14 days
of the event occurring. The reporting of this information ensures providers and
relevant agencies, particularly the Department of Immigration and Border
Protection, are aware of the status of the child‟s enrolment. It also
complements other requirements under the ESOS Act to ensure younger
students who have their accommodation and welfare approved by their
education provider have appropriate arrangements in place at all times. All
other relevant information about students under the age of 18 will need to be
entered into PRISMS within 31 days of the event occurring.
The Bill is compatible with the rights of the child.
Conclusion
This Bill is compatible with human rights because it promotes human rights.
15
EDUCATION SERVICES FOR OVERSEAS STUDENTS
AMENDMENT (STREAMLINING REGULATION) BILL 2015
NOTES ON CLAUSES
Clause 1 - Short title
Clause 1 provides for the Act to be cited as the Education Services for
Overseas Students Amendment (Streamlining Regulation) Act 2015.
Clause 2 - Commencement
Subclause 2(1) inserts a three column table setting out commencement
information for various provisions in the Bill. Each provision of the Bill
specified in column 1 of the table commences (or is taken to have
commenced) in accordance with column 2 of the table and any other
statement in column 2 has effect according to its terms.
The effect of the table is that:
sections 1 to 3 of the Act, Part 1 of Schedule 5, Part 1 of Schedule 6,
and item 7 of Schedule 6, commence on the day after the Act receives
the Royal Assent; and
the remainder of the Act (i.e. Schedules 1 to 4, Part 2 of Schedule 5,
and Parts 2 and 3 and items 8 to 13 of Schedule 6), commence on
1 July 2016.
Any information in column three of the table is not part of the Act.
A note explains that the commencement times in the table will not be
amended should the provisions of this Act be amended by any future Act.
Clause 3 - Schedule(s)
Clause 3 provides that any legislation that is specified in a schedule is
amended or repealed as set out in the applicable items in the schedule and
that any other item in a schedule has effect according to its terms.
16
List of abbreviations
AAT Administrative Appeals Tribunal
ASQA Australian Skills Quality Authority (the National Vocational
Education and Training Regulator)
DSA designated State authority
CRICOS Commonwealth Register of Institutions and Courses for
Overseas Students
ELICOS English Language Courses for Overseas Students
ESOS Act Education Services for Overseas Students Act 2000
national code National Code of Practice for Providers of Education and
Training to Overseas Students
NVETR Act National Vocational Education and Training Regulator Act 2011
PRISMS Provider Registration and International Student Management
System
TEQSA Tertiary Education Quality and Standards Agency
TEQSA Act Tertiary Education Quality and Standards Agency Act 2011
TPS Tuition Protection Service
VET vocational education and training
17
Schedule 1 Streamlining registration
Summary
The measures contained in Schedule 1 of the Bill are intended to improve
consistency and flexibility across existing education quality assurance
frameworks by reducing the administrative burden on education providers and
quality assurance agencies. This will be achieved primarily through
introducing the role of the "ESOS agency". The ESOS agency will be
responsible for decision making in respect of a provider‟s registration and
monitoring providers‟ compliance with the ESOS Act.
The creation of the ESOS agency, removal of the concept of designated
authority and other consequential amendments in Schedule 1 of the Bill
remove duplication in the roles currently performed by TEQSA and ASQA,
both as delegate of the Secretary, and designated authorities under the ESOS
Act. For TEQSA and ASQA, the measures mean that the regulatory powers
will be vested in those agencies directly, replacing the previous two-tiered
system of "designated authority" and "delegate" under the ESOS Act.
The role of State and Territory agencies as a designated authority in respect
of providers of school courses to overseas students will continue. However,
they will now be recognised in the ESOS Act as designated State authorities.
The Secretary of the Department of Education and Training will hold powers
as the ESOS agency for school providers.
The Minister and the Secretary will also retain powers necessary for the
administration of the ESOS Act. These powers relate primarily to:
the appointment of the TPS Director and TPS Advisory Board;
the making of legislative instruments; and
the establishment and maintenance of CRICOS (Register) and
PRISMS.
TEQSA and ASQA will experience the most significant change from these
measures with the removal of duplication in their roles under the ESOS Act.
The measures will allow them greater flexibility in managing their functions
under the ESOS Act and interacting with education providers and other
Government agencies in the case of multi-sector providers.
Streamlining registration and regulatory processes will also provide ESOS
agencies with greater flexibility to more efficiently and effectively perform their
functions. In turn education providers should experience a reduction in the
18
administrative burden through a more streamlined application, assessment
and oversight process.
Schedule 1 also amends the Act to clarify that, where relevant, registered
providers must comply with the ELICOS Standards and the Foundation
Program Standards. Amendments are made in Schedule 1 of the Bill so that
enforcement, monitoring and searching provisions apply in relation to a
provider‟s compliance with the ELICOS Standards and the Foundation
Program Standards. This strengthens the ability of ESOS agencies to ensure
appropriate oversight and maintain quality in these two education sectors.
Detailed explanation
Education Services for Overseas Students Act 2000
Item 1
This item substitutes paragraph 4B(1)(b) to provide that a reference in a
provision of the ESOS Act to the designated State authority includes a
reference to the Territories Minister. Section 4B of the ESOS Act provides for
the extension of the Act to Christmas Island and Cocos (Keeling) Islands.
Item 2
This item substitutes reference to "designated authority" in paragraph 4B(2)(a)
with "designated State authority".
Item 3
This item makes a consequential amendment to paragraph 4B(2)(b) to
remove reference to an obsolete paragraph and substitute it with reference to
new paragraph 6D(1)(a).
Item 4
This item substitutes reference to "designated authority" with "designated
State authority" in subsection 4B(3).
Item 5
This item repeals the definition of "approved provider" from section 5 of the
Act.
Item 6
This item inserts a new definition of "approved school provider". The purpose
of this amendment is to ensure that schools seeking registration under the Act
have the approval of the designated State authority to provide courses to
students or overseas students in that State. "Approved school provider" is
19
also used in the definition of "provider" in section 6E to enable a provider to
apply for registration under new section 9.
Item 7
This item repeals the definition of "approved unit of study" from section 5 of
the Act.
Item 8
This item repeals the definition of "authorised employee" from section 5 of the
Act.
Item 9
This item inserts the new definition of "authorised officer" into section 5 of the
Act.
Item 10
This item substitutes reference to sections 9DA or 9AE in section 5 with
reference to section 10B.
Item 11
This item repeals the definition of "designated authority" from section 5 of the
Act. The introduction of the ESOS agency removes the "designated authority"
role for TEQSA and ASQA. However, this role is retained by the State
authorities for school providers. The "designated State authority" for a
provider or registered provider, to the extent the provider is a school provider,
means the person under the law of the State for approving school providers to
provide courses to students or overseas students in the relevant State.
Item 12
This item inserts the new definitions of "designated State authority", "DSA
assessment certificate", "DSA recommendation certificate", "ELICOS", "ESOS
agency" and "exempt provider" into section 5 of the Act.
Item 13
This item substitutes reference to "entry to market charges referred to in item
1 of the table" with reference to "first entry to market charges referred to".
Item 14
This item repeals the definition of "higher education provider" from section 5 of
the Act.
20
Item 15
This item inserts the phrase "meets the registration requirements has the
meaning given by section 11" into section 5 of the Act.
Item 16
This item repeals paragraph (a) of the definition of "monitoring purposes" in
section 5 of the Act to provide that a monitoring purpose would include
whether a provider complied with the provisions of the ESOS Act and the
national code and, where applicable, the ELICOS Standards or Foundation
Program Standards. This amendment means that action can be taken under
Part 7 of the ESOS Act for the purpose of determining whether a registered
provider is operating in accordance with the ELICOS and Foundation Program
Standards.
Item 17
This item inserts the new definitions "non-referring State", "NVETR Act" and
"NVR registered training organisation" into section 5 in the Act.
Item 18
This item substitutes the current definition of "provider" with the definition
currently in section 6E of the Act.
Item 19
This item inserts a definition of "registered higher education provider" in
section 5 of the Act with the definition currently available in the TEQSA Act.
This amendment ensures consistency with the TEQSA Act.
Item 20
This item substitutes the definition of "registered provider" in section 5 of the
Act with a new definition.
Item 21
This item inserts the new definitions "registered training organisation",
"registered VET provider", "related person" and "relevant individual" into
section 5 of the Act.
21
Item 22
This item repeals the definition of "risk assessment" from section 5 in the Act.
Item 23
This item inserts a new definition of "school provider" into section 5 in the Act.
Item 24
This item repeals the definition of "second or third entry to market charge"
from section 5 of the Act.
Item 25
This item inserts the new definitions of "second entry to market charge" and
"third entry to market charge" into section 5 of the Act.
Item 26
This item substitutes the current definition of "TPS Levy" in section 5 of the
Act.
Item 27
This item substitutes the current heading in section 5A with "When registered
higher education providers are taken to have the principal purpose of
providing education".
Item 28
This item substitutes reference to "subparagraphs 9AB(1)(f)(ii), and
paragraphs 9AH(c) and 83(1C)(a), a registered education provider" with
"paragraphs 11(d) and 83(1C(a), a registered higher education provider" in
section 5A of the Act.
Item 29
This item inserts new sections 6A to 6E into Division 1 or Part 1 to the Act.
These new provisions set out the meanings of the following terms:
"authorised officer";
"DSA assessment certificate";
"DSA recommendation certificate";
"ESOS agency",
"exempt provider" and
"provider".
22
Section 6A - Meaning of "authorised officer"
New section 6A substitutes the concept of "authorised employee" with the
concept of "authorised officer" to provide consistency with the TEQSA Act and
the NVETR Act.
Subsection 6A(1) contains a table which prescribes who is an "authorised
officer" for the following ESOS agencies: TEQSA, the National VET
Regulator, the Secretary, or other entities not otherwise covered by an item in
the table.
Subsection 6A(2) provides that where the ESOS agency for a registered
provider is the Secretary, the agency may appoint a person as an "authorised
officer" of the agency if certain criteria are met.
Subsection 6A(3) provides that, if the ESOS agency for a registered provider
is an entity which is not otherwise covered by an item in the table in new
subsection 6A(1), the agency may, in writing, appoint a person as an
"authorised officer" of the agency if certain criteria are met.
Section 6B - Meaning of "DSA assessment certificate" and "DSA
recommendation certificate"
New section 6B outlines the meanings of "DSA assessment certificate" and
"DSA recommendation certificate".
New section 6B(1) provides that a "DSA assessment certificate" is a certificate
given by a designated State authority for an approved school provider which
meets the criteria set out in paragraphs 6B(1)(a) to (g). A note at the end of
this subsection clarifies that the designated State authority must have regard
to the matters in subsection 7A(2) in deciding whether it is satisfied that the
provider is fit and proper to be registered.
New subsection 6B(2) provides that a "DSA recommendation certificate" is a
certificate given by a designated State authority for an approved school
provider that meets certain criteria set out in paragraphs 6B(2)(a) to (c).
Subsection 6B(3) sets out the requirements for the "DSA assessment
certificate" and the "DSA recommendation certificate" which must be in a form
approved, in writing, by the ESOS agency for the approved school provider to
which the certificate applies.
Section 6C - Meaning of "ESOS agency"
New section 6C sets out the meaning of the "ESOS agency".
New subsection 6C(1) contains a table which provides that the "ESOS
agency" for a provider or registered provider is as follows:
if the provider/registered provider is a registered higher education
provider - TEQSA;
23
if the provider/registered provider is a registered VET provider - the
National VET Regulator;
if the provider/registered provider is an approved school authority - the
Secretary;
if the provider/registered provider is an ELICOS or Foundation
Program provider - the entity determined under subsection 6C(2) (that
is, by the Minister by legislative instrument); or
if the provider/registered provider is not otherwise covered by the table
- the entity determined under subsection 6C(2) (that is, by the Minister
by legislative instrument).
New subsection 6C(2) provides that where a provider or registered provider is
not covered by one of the ESOS agencies listed in the table at section 6C, the
Minister has the power to make a legislative instrument determining an entity
as the ESOS agency. Similarly, where a provider is an ELICOS or Foundation
Program provider, the Minister may, by legislative instrument, determine an
entity as the ESOS agency for these providers.
New subsection 6C(3) provides that, if a provider or registered provider is
covered by more than one item in the table in subsection 6C(1), the Minister
may, by legislative instrument, determine that one or more entities are the
ESOS agencies for the provider, and specify the circumstances in which each
of those entities is the ESOS agency for the provider. For example, if a
provider is registered to provide higher education and school courses, the
Minister can determine, by legislative instrument, which is the ESOS agency
or agencies will be for that provider.
New subsection 6C(4) provides that if:
under subparagraph 83(2A)(d)(i), a provider ceases to be a registered
higher education provider in relation to a course;
under subparagraph 83(2B)(d)(i), a provider ceases to be a registered
VET provider in relation to a course; or
under paragraph 83(2C)(c), a provider ceases to be an approved
school provider in relation to a course;
the ESOS agency for the provider continues to be the same ESOS agency
even though the registration of the higher education provider or VET provider
has ceased or the school provider ceases to be an approved school provider.
This amendment is a key measure which underpins the streamlining of
registration processes under the ESOS Act. It is designed to remove the
heavy reliance on delegations under the Act and reduce the duplication in
work performed by ASQA and TEQSA.
New section 6D - meaning of "exempt provider"
New section 6D sets out the meaning of "exempt provider". Subsection 6D(1)
provides that an "exempt provider" is any of the following providers or
registered providers:
24
providers administered by State education authorities;
providers entitled by Commonwealth law to receive recurrent
expenditure funding for providing education or training (unless the
provider is otherwise prescribed by regulations for the purposes of
subparagraph 6D(1)(b)(ii)); or
providers specified in the regulations.
Subsection 6D(2) clarifies that a private corporate body established in
connection with a provider which is covered by paragraphs 6D(1)(a) or (b) is
not itself, as a result of that connection alone, a provider covered by that
paragraph.
New section 6E- Meaning of "provider"
New section 6E sets out the new definition of "provider". New subsection
6E(1) specifies that a "provider" is any of the following:
a registered higher education provider;
a registered VET provider;
an approved school provider;
an ELICOS or Foundation Program provider; or
another person or entity that provides or seeks to provide courses to
overseas students - as specified by the Minister by legislative
instrument.
New subsection 6E(2) provides that the Minister may, by a legislative
instrument, specify that a person or entity is not a provider (and therefore not
able to be registered on CRICOS to provide courses to overseas students).
Item 30
This item substitutes section 7A of the Act and inserts a new section 7AA.
New section 7A prescribes the matters an ESOS agency or a designated
State authority must have regard to when determining whether a provider is fit
and proper to be registered.
New subsection 7A(1) provides that section 7A applies if it is necessary for
the purposes of a provision of the ESOS Act for:
the ESOS agency for a provider or registered provider to decide
whether the agency is satisfied, or no longer satisfied, that the provider
is fit and proper to be registered, or where the agency has reasonable
grounds to believe that the provider is not fit and proper to be
registered (subsection 7A(1)(a)); or
the designated State authority for a provider or registered provider that
is an approved school provider to decide whether the authority is
satisfied that the provider is fit and proper to be registered (subsection
7A(1)(b)).
25
New subsection 7A(2) sets out that, in deciding the matter, the ESOS agency
or designated State authority must have regard to certain matters specified in
paragraphs 7A(2)(a) to (h).
New subsection 7A(3) provides that a "related person" of a provider or
registered provider is an associate of the provider who has been, currently is,
or will in the future be, involved in the business of the provision of courses by
the provider, or is otherwise a high managerial agent of the provider.
New subsection 7A(4) clarifies that nothing set out in subsection 7A(2) affects
the operation of Part VIIC of the Crimes Act 1914, which deals with spent
convictions.
New section 7AA provides that nothing in the ESOS Act imposes a duty on a
designated State authority.
Item 31
This item amends the third dot point in section 7B to add reference to the
ELICOS Standards and the Foundation Program Standards as part of the
regulatory framework imposing obligations on registered providers.
This amendment is intended to clarify that obligations imposed on providers
under the ESOS Act include obligations imposed by the ELICOS and
Foundation Program Standards.
Item 32
This item substitutes the heading to Part 2 of the Act with "Part 2 -
Registration of Providers".
Item 33
This item substitutes references to paragraphs relating to Divisions 3 and 4 in
section 8A of the Act.
Item 34
This item substitutes the heading to Division 3 with "Division 3 - Registration
of approved providers".
Item 35
This item substitutes subdivision A of Division 3 of Part 2 with new
subdivisions A to E. New subdivisions A to E set out the processes that a
provider must follow to apply to be registered, renew their registration, or to
make changes to their registration.
26
Subdivision A - Application for registration
Section 9 - Provider may apply to be registered
New section 9 provides that a provider may apply to the ESOS agency for the
provider to be registered to provide a course or courses to overseas students.
A note explains that new section 11A contains additional rules about
applications.
Section 10 - ESOS agency for provider may register provider
New section 10 provides that the ESOS agency for a provider may register
the provider to provide a course or courses at a location or locations if the
provider meets the registration requirements, and that the ESOS agency must
use a risk management approach when considering registering the provider.
For example, when using a risk management approach the ESOS agency for
the provider may take into account factors such as the size and complexity of
the provider‟s business, financial viability and the provider‟s previous
compliance history.
Section 10A - Notice of registration
New section 10A provides for the notification of providers of a registration
decision.
New subsection 10A(1) provides that an ESOS agency for a provider must
give a written notice of registration to the provider as soon as practicable after
making its decision to register the provider.
New subsection 10A(2) sets out the information that must be included in the
notice.
New subsection 10(3) provides that in the case of an approved school
provider, the ESOS agency for the provider must, in determining the period for
registration, have regard to the registration period recommended in the DSA
assessment made by the designated authority for the provider.
Subdivision B - Conditions of registration
New section 10B sets out the rules relating to an ESOS agency imposing,
varying or removing a condition on a provider‟s registration.
Subsection 10B(1) provides that the ESOS agency for a provider or registered
provider may at any time impose, vary or remove a condition of the provider‟s
registration.
Subsection 10B(2) provides that the ESOS agency for the provider or
registered provider must use a risk management approach when deciding to
impose, vary or remove a condition.
27
Subsection 10B(3) provides that a condition may be imposed generally on:
a provider‟s registration, or
the courses that a provider is registered to provide, and/or
the location or locations at which a provider is registered to provide a
course.
Subsection 10B(4) provides that where an ESOS agency imposes, varies or
removes a condition of the provider‟s registration after the registration has
commenced the agency must include in the notice of the decision given under
section 169AC a statement about when the imposition, variation or removal
takes effect.
A note at the end of this provision explains that section 169AC requires the
ESOS agency to give notice of certain decisions.
Section 10C - Conditions imposed by designated State authorities on the
approval of school providers after registration
New section 10C deals with conditions that may be imposed by designated
State authorities on the approval of school providers after registration.
New subsection 10C(1) provides that the ESOS agency for a provider may
impose a condition on the provider‟s registration under new section 10B if the
registered provider is an approved school provider and, during the period of
registration, the designated State authority for the provider imposes a
condition on its approval of the provider relating to the provision of a course.
New subsection 10C(2) provides that in deciding to impose a condition under
section 10B, the ESOS agency for the registered provider must consider any
advice from the designated State authority for the provider.
New subsection 10C(3) provides that this section does not limit section 10B.
Subdivision C - Renewal of registration
Section 10D - Registered provider may apply to renew registration
New section 10D provides that a registered provider may apply to renew
registration.
New subsection 10D(1) enables a registered provider to apply to renew its
registration to provide a course or courses at a location or locations to
overseas students.
New subsection 10D(2) provides that the application must be made to the
ESOS agency for the registered provider, and be made within the timeframe
set out in new subsection 10D(3).
28
New subsection 10D(3) provides that the period within which applications
under section 10D must be made may be determined in a legislative
instrument made by the ESOS agency for a registered provider.
Section 10E - ESOS agency for registered provider may renew registration
New section 10E enables the ESOS agency for a registered provider to renew
registration.
Subsection 10E(1) provides that where an application is made by a registered
provider under new section 10D, the ESOS agency for the provider may
renew the provider‟s registration to provide a course or courses at a location
or locations in circumstances where the provider meets the registration
requirements.
Subsection 10D(2) provides that when considering whether to renew the
registration, the ESOS agency for the provider must use a risk management
approach.
Section 10F - Registration continues until decision on renewal takes effect
New section 10F provides that, if a registered provider has applied to renew
its registration, the registered provider‟s registration will continue until a
decision is made.
New subsection 10F(1) provides that, where a registered provider makes an
application under section 10D and a decision has not been made by the
ESOS agency for the provider before the end of the day on which the
provider‟s registration is due to expire, the provider‟s registration continues
until the agency makes a decision regarding the application.
New subsection 10F(2) clarifies that new subsection 10F(1) does not apply if
the registered provider‟s registration is cancelled under the ESOS Act.
Section 10G - Notice of renewal of registration
New section 10G sets out the requirements regarding the notice of renewal of
registration.
New subsection 10G(1) provides that an ESOS agency must give a provider
written notice of the renewal of registration as soon as practicable after
making the decision.
New subsection 10G(2) prescribes the information the notice must set out.
New subsection 10G(3) provides that in the case of an approved school
provider, the ESOS agency for the provider must, in determining the period for
registration, have regard to the registration period recommended in the DSA
assessment made by the designated authority for the provider.
29
Subdivision D - Changes to registration etc.
Section 10H - Registered provider may apply to add one or more courses at
one or more locations to registration
New section 10H allows for the addition of courses at different locations to a
registered provider‟s registration.
New subsection 10H(1) provides that a registered provider may apply to add
one or more courses at one or more locations to the registered provider‟s
registration.
New subsection 10H(2) provides that the application must be made to the
ESOS agency for the registered provider, and where the provider is an
approved school provider, must be accompanied by a DSA recommendation
certificate given by the designated State authority for the provider.
Section 10J - ESOS agency for registered provider may add one or more
courses at one or more locations to registration
New section 10J enables the ESOS agency for a registered provider to add
one or more courses, at one or more locations, to the provider‟s registration.
New subsection 10J(1) provides that, if a registered provider makes an
application under new section 10H to add a course or courses at a location or
locations to its registration, the ESOS agency for the provider may add those
courses for those locations if the provider meets the registration requirements.
New subsection 10H(2) provides that in considering whether or not to add a
course at a location to a provider‟s registration, the ESOS agency must use a
risk management approach.
New subsection 10J(3) provides that the addition of one or more courses at
one or more locations does not affect the provider‟s period of registration.
Section 10K - Notice of addition of one or more courses at one or more
locations to registration
New section 10K requires that a provider be notified of their ESOS agency‟s
decision under section 10J.
New subsection 10K(1) requires the ESOS agency for a registered provider to
give the provider a written notice of its decision on a section 10H application
as soon as practicable after making the decision.
New subsection 10K(2) specifies the information which must be included in
the notice.
30
Section 10L - Extension of a registered provider‟s period of registration
New section 10L provides for the extension of a registered provider‟s period of
registration in order to align it with other registration periods.
New subsection 10L(1) enables an ESOS agency for a registered provider to
extend the provider‟s registration period for the purpose of aligning the period
with the provider‟s period of registration under the TEQSA Act.
New subsection 10L(2) enables an ESOS agency to, for a registered provider
that is also a VET provider, extend the provider‟s registration period for the
purpose of aligning the period with the provider‟s period of registration under
the NVETR Act.
New subsection 10L(3) enables an ESOS agency for a registered provider
that is an approved school provider, to extend the provider‟s registration
period for the purpose of aligning the period with the provider‟s period of
approval as a an approved school provider.
New subsection 10L(4) provides that the ESOS agency may not extend a
registration in such circumstances more than once.
New subsection 10L(5) provides that, when considering an extension, the
ESOS agency must use a risk management approach.
Section 10M - Continuation of registration if provider has not finished
providing courses before expiry of registration
New section 10M enables a registered provider, in specified circumstances, to
continue to provide a course at a location until the provider completes
providing the course at the location.
New subsection 10M(1) provides that new section 10M applies only where a
registered provider‟s registration of a course is due to expire before the
provider has finished providing the course, and the provider has not applied to
have the registration of that course renewed.
New subsection 10M(2) provides that, where the requirements of subsection 1
are satisfied, the registered provider‟s registration for the course will continue:
in the case of a school provider - until the end of the calendar year; or
in all other cases - until the provider has completed delivery of the
course at the location, provided that the provider commenced the
course before the day on which the provider‟s registration expired.
New subsection 10M(3) provides that despite the fact that a provider‟s
registration to provide the course at the location continues under subsection
10M(2), a provider must not do anything to recruit or enrol any additional
overseas students (or intending overseas students) for the course at the
31
location after the day on which the provider‟s registration would have ended
but for the operation of subsection 10M(2).
Item 36
This item substitutes the heading to Subdivision B of Division 3 of Part 2 with
"Subdivision E - Other registration provisions".
New subdivision E outlines the requirements a provider must meet in order to
be registered or for their registration to be renewed under the Act.
Item 37
This item substitutes sections 9AH and 9B with new sections 11, 11A, 11B
and 11C.
Section 11 - When a provider or registered provider meets the registration
requirements
New section 11 sets out when a provider or registered provider meets the
registration requirements.
New paragraphs 11(a) to 11(h) specify when a provider or registered provider
meets the registration requirements.
New paragraph 11(i) provides that a provider must meet any further
requirements prescribed by the regulations.
Note 1 at the end of new section 11 draws reference to section 5A (when a
registered higher education provider has the principal purpose of providing
education).
Note 2 draws reference to section 6 of the Education Services for Overseas
Students (Registration Charges) Act 1997 (when a provider is liable to pay the
entry to market charge).
Section 11A - Rules relating to applications for registration etc.
New section 11A sets out the rules relating to applications for registration.
New subsection 11A(1) provides that new section 11A applies in relation to
applications by providers to the ESOS agency for registration under section 9,
applications for renewal of registration under sections 10D, and to
applications to add one or more courses at one or more locations to
registration under section 10H.
New subsection 11A(2) provides that the application must be made in the
form approved by the ESOS agency in writing and must be supported by any
information or documents the agency requires.
32
New subsection 11A(3) enables a provider to withdraw their application by
giving a written notice to the provider‟s ESOS agency.
New subsection 11A(4) provides that, when considering an application, the
ESOS agency can take into account any information in its possession that is
also relevant to the application (for example, the provider may have recently
provided information for registration as a higher education provider under the
TEQSA Act, and this information may be taken into account by TEQSA
without requiring the provider to resubmit the information TEQSA).
New subsection 11A(5) provides that new subsection 11A(4) does not limit
the things an ESOS agency may do when deciding on an application for
registration.
Section 11B - ESOS agency may request further information or documents
New section 11B enables the ESOS agency to request further information or
documents with respect to a provider‟s application for registration.
New subsection 11B(1) provides that this section applies in relation to an
application by a provider for registration, renewal of registration, or to add one
or more courses at one or more locations to the provider‟s registration.
New subsection 11B(2) provides that if an ESOS agency considers that it
needs further information or documents to decide the application the agency
may request that information or documents from:
the provider;
the designated State authority for an approved school provider; or
another ESOS agency.
Subsection 11B(3) provides that the request must be in writing, specify the
period within which the further information or documents must be provided,
and outline the effect of subsection 11B(4).
New subsection 11B(4) enables the ESOS agency to decline to consider or
continue to consider an application until further information or documents are
provided.
Section 11C - Copies of decision notices to be given by the ESOS agency
New section 11C prescribes the persons or entities to which an ESOS agency
must provide copies of notices given by the agency to a provider or registered
provider.
Subsection 11C(1) provides that if the ESOS agency for a provider or
registered provider gives the provider a notice of registration, a notice of
renewal of registration, or a notice of addition of one or more courses at one
or more locations to registration, the agency must provide a copy to:
33
the designated State authority - if the provider that is an approved
school provider; and
the Secretary - if the ESOS agency for the provider is not the
Secretary.
New subsection 11C(2) provides that, where the ESOS agency for a provider
that is an approved school provider refuses to register the provider under
section 10, a copy of the notice of that decision given to the provider under
section 169AC must also be given to the designated State authority for the
provider.
New subsection 11C(3) requires the ESOS agency for a registered provider to
give copies of section 169AC notices of decision (see item 5 of Schedule 2) to
the designated State authority for an approved school provider and to the
Secretary, if the ESOS agency for the provider is not the Secretary. This
applies where the ESOS agency for a registered provider:
imposes, varies or removes a condition on a provider‟s registration
under section 10B after registration has commenced;
refuses to renew registration under section 10E;
refuses to add one or more courses at one or more locations to a
provider‟s registration under section 10J; or
extends a provider‟s registration under section 10L.
A note at the end of subsection 11C(3) clarifies that an ESOS agency is
required to give certain notices under section 169AC.
Item 38
This item substitutes note 1 at subsection 12(1). New note 1 clarifies that a
provider will be liable to pay three entry to market charges under section 5 of
the Education Services for Overseas Students (Registration Charges) Act
1997. It also clarifies that a provider must pay the first entry to market charge
before the provider can be registered.
Item 39
This item substitutes reference to "Secretary registers the provider under
section 9AB" in paragraph 12(2)(a) with "provider is registered".
The purpose of this amendment is to provide that the Secretary must give
notice in respect of the first entry to market charge "before the provider is
registered".
Item 40
This item inserts the phrase "entry to market charge" in paragraph 12(2)(b).
34
Item 41
This item substitutes the phrase "Secretary registers the provider under
section 9AB" in subsection 13(1) of the Act with "provider is registered".
Item 42
This item substitutes section 14. New section 14 relates to notifying
designated State authorities, prior to the registration of a provider, if the ESOS
agency for the provider suspects the provider is not complying with the
registration requirements.
New subsection 14(1) provides that section 14 applies where an approved
school provider applies for registration under section 9 and the ESOS agency
for the provider has information from a source, other than the designated
State authority for the provider, which suggests any of the following:
the provider is not complying with the Act or national code;
if the ELICOS Standards or Foundation Program Standards apply in
relation to the provider - the provider is not or will not comply with
them;
the provider does not have the principal purpose of providing
education; or
the provider has not or will not provide education of a satisfactory
standard to overseas students.
New subsection 14(2) provides that, before deciding the application for
registration, the ESOS agency must give that information to the designated
State authority and give the authority at least seven days to respond in
writing.
Item 43
This item repeals paragraph 14A(4)(f). Paragraph 14A(4)(f) requires the
Secretary to show the date on which a provider is registered. Paragraph
14A(4)(g) requires that the Secretary must cause the period of the provider‟s
registration to be entered onto the Register, therefore paragraph 14A(4)(f) is
superfluous.
Item 44
This item substitutes paragraph 14A(4)(h). New paragraph 14A(4)(h) would
require the Secretary to ensure that the Register contains details of any
conditions imposed on a provider‟s registration and when any such conditions
are to take effect.
This amendment is intended to ensure that sufficient information is available
to enable students to make informed decisions when selecting a suitable
provider to enrol with.
35
Item 45
This item repeals subsection 14A(6) of the Act. This amendment is intended
to clarify that a provider‟s registration commences at the date set out in the
notice of registration rather than when the Secretary has entered the name of
the provider on the Register.
Item 46
This item substitutes the note to section 15. The new note clarifies that the
ESOS agency for a provider may take action under Division 1 of Part 6
against the provider where the provider breaches the section/subsection
concerned
Item 47
This item substitutes the note to section 16. The new note clarifies that the
ESOS agency for a provider may take action under Division 1 of Part 6
against the provider where the provider breaches the section/subsection
concerned
Item 48
This item substitutes the heading to section 17 with "Registered providers
must notify their ESOS agency of offences etc. by associates and high
managerial agents".
Item 49
This item substitutes reference to "Secretary" in subsection 17(1) with "ESOS
agency for the provider".
Item 50
This item substitutes the note to subsection 17(1). The new note clarifies that
the ESOS agency for a provider may take action under Division 1 of Part 6
against the provider where the provider breaches the section/subsection
concerned
Item 51
This item substitutes the note to subsection 18A(1). The new note clarifies
that the ESOS agency for a provider may take action under Division 1 of Part
6 against the provider where the provider breaches the section/subsection
concerned
Item 52
This item omits reference to "the Secretary" in subsections 19(1) and (2).
36
Item 53
This item substitutes subsection 19(3). New subsection 19(3) provides that a
registered provider must give the information required by section 19 by
entering the information in the computer system established by the Secretary
under section 10.
Item 54
This item omits reference to "the Secretary" in subsection 19(4).
Item 55
This item substitutes note 1 to subsections 20(1). New note 1 clarifies that the
ESOS agency for a provider may take action under Division 1 of Part 6
against the provider where the provider breaches the section/subsection
concerned.
Item 56
This item amends paragraph 21(2B)(a) to substitute reference to "an
approved unit" with "a unit".
Item 57
This item substitutes the note to subsection 21(3). The new note clarifies that
the ESOS agency for a provider may take action under Division 1 of Part 6
against the provider where the provider breaches the section/subsection
concerned
Item 58
This item repeals subsection 21(7), which provides the definition of "approved
unit of study".
Item 59
This item substitutes the note to subsection 21A(1). The new note clarifies
that the ESOS agency for a provider may take action under Division 1 of Part
6 against the provider where the provider breaches the section/subsection
concerned
Item 60
This item substitutes the note to subsection 24(2). The new note clarifies that
the ESOS agency for a provider may take action under Division 1 of Part 6
against the provider where the provider breaches the section/subsection
concerned
37
Item 61
This item substitutes note 1 to subsection 26(3). New note 1 clarifies that the
ESOS agency for a provider may take action under Division 1 of Part 6
against the provider where the provider breaches the section/subsection
concerned
Item 62
This item removes reference to designated authorities undertaking
investigations of breaches of the code in section 33A.
Item 63
This item substitutes reference to "section 9AB" in the note to section 40 with
"section 11".
Item 64
This item repeals section 43.
Items 65 and 66
These items substitute reference to "Minister" in subsections 46A(4) and (5)
with "ESOS agency for the provider" and "ESOS agency for the registered
provider" respectively.
Item 67
This item substitutes paragraph 46A(5)(b) with new paragraphs 46A(5)(b) and
(c).
New paragraph 46A(5)(b) provides that, in deciding whether to give notice,
the ESOS agency for a registered provider must have regard to any advice
provided by another ESOS agency.
New paragraph 46A(5)(c) provides that where the provider is an approved
school provider, the ESOS agency for the provider, in considering whether to
give notice of provider default, must have regard to any advice of the
designated State authority for the provider,.
Item 68
This item substitutes the note to subsection 46B(1). The new note clarifies
that if a registered provider breaches section 46B, the ESOS agency for the
provider may take action against the provider under Division 1 of Part 6.
38
Item 69
This item substitutes the heading appearing before subsection 46B(2) with
"Notifying the ESOS agency and TPS Director".
Items 70, 73 and 75
These items substitute references to "Secretary" in subsections 46B(2),
46F(2), 47H(2) with "ESOS agency for the provider".
Item 71
This item repeals section 46C, which provides that designated authorities are
to notify the Secretary and TPS Director of provider default.
Item 72
This item substitutes the note to subsection 46F(1). The new note clarifies
that if a registered provider breaches section 46F, the ESOS agency for the
provider may take action against the provider under Division 1 of Part 6.
Item 74
This item substitutes the note to paragraph 47H(1). The new note clarifies that
if a registered provider breaches section 47H, the ESOS agency for the
provider may take action against the provider under Division 1 of Part 6.
Item 76
This item substitutes the note to subsection 53B(1). The new note clarifies
that, in respect of unregistered providers, there is no particular due date, but
those providers cannot be registered until they have paid their first TPS levy.
Item 77
This item substitutes the heading to section 53C with "Notifying the ESOS
agency of payment of first TPS levy".
Item 78
This item substitutes subsection 53C(1). New subsection 53C(1) provides
that, where a provider who is not yet registered pays its first TPS levy, the
TPS Director must notify the ESOS agency for the provider of the payment.
A note at the end of new subsection 53C(1) clarifies that the ESOS agency
needs to know when the first TPS levy has been paid so that the provider can
be registered.
39
Item 79
This item 79 repeals subsection 53C(3) as this subsection repeats the
requirement in section 53D.
Item 80
This substitutes reference to "Secretary if the registered" in subsection 53D(3)
with "ESOS agency for the registered provider if the".
Item 81
This item clarifies that enforcement action may be taken by an ESOS agency
for a breach of either the ELICOS Standards or the Foundation Program
Standards.
Item 82
This item substitutes reference to "Minister" in the paragraph relating to
Division 1 in section 83A with "ESOS agency for a registered provider"
Item 83
This item substitutes section 83A to provide that the ESOS agency for a
registered provider may accept written undertakings.
Item 84
This item substitutes the heading to section 83 with "ESOS agency may
impose sanctions for non-compliance etc.".
Item 85
This item substitutes subsection 83(1). New subsection 83(1) provides that
the ESOS agency for a registered provider may take one or more of the
actions outlined in subsection 83(3) against the provider if it has reasonable
grounds to believe that the provider, associate or high managerial agent of the
provider is breaching or has already breached the ESOS Act, the national
code, ELICOS standards or Foundation Program Standards (if applicable) or
a condition of the provider‟s registration.
A note at the end of new subsection 83(1) clarifies that section 93 sets out the
procedures for taking action.
Items 86
This item substitutes reference to "The Minister" in section 83(1A) with "The
ESOS agency for a registered provider".
40
Item 87
This item substitutes reference to "a registered provider if the Minister" in
subsections 83(1A) with "the provider if the agency".
Item 88
This item substitutes reference to "The Minister" in section 83(1B) with "The
ESOS agency for a registered provider".
Item 89
This item substitutes reference to "a registered provider (other than a provider
covered by subsection 9B(1)) if the Minister" in subsection 83(1B) with "the
provider (other than an exempt provider) if the agency".
Item 90
This item substitutes note 2 to subsection 83(1B). New note 2 provides that
the ESOS agency must have regard to the matters referred to in subsection
7A(2) when making a decision about whether it believes on reasonable
grounds that a provider is not fit and proper to be registered.
Item 91
This item substitutes reference to "The Minister" in section 83(1C) with "The
ESOS agency for a registered provider".
Item 92
This item substitutes reference to "a registered provider if the Minister" in
subsections 83(1C) with "the provider if the agency".
Item 93
This item substitutes paragraph 83(1C)(b). New paragraph 83(1C)(b) enables
the ESOS agency for a registered provider to take certain action against a
registered provider if the agency has reasonable grounds to believe that the
provider has not been providing education of a satisfactory standard to
overseas students.
Item 94
This item inserts the word "registered" in front of "higher education provider" in
note 2 to subsection 83(1C).
Item 95
This item substitutes the reference to "The Minister" in subsection 83(2) with
"The ESOS agency for a registered provider".
41
Item 96
This item substitutes the reference to "a registered provider for a course if the
Minister" in subsection 83(2) with "the registered provider for a course if the
agency".
Item 97
Item 97 inserts new subsections 83(2A), (2B) and (2C) after subsection 83(2)
of the ESOS Act.
As a result of these amendments, where:
a registered higher education provider is registered to provide a course
and the provider ceases to be a registered higher education provider in
relation to the course or the course ceases to be an accredited course;
a registered VET provider is registered to provide a course and the
provider ceases to be a registered VET provider in relation to the
course or the course ceases to be an accredited course; or
an approved school provider is registered to provide a course in a
State and the provider ceases to be an approved school provider in
relation to the course,
the ESOS agency may cancel, suspend or impose a condition on the
provider‟s registration generally or in respect of any one or more specified
courses for any one or more specified locations.
Item 98
This item substitutes the heading to subsection 83(3) with "Actions the ESOS
agency may take".
Item 99
This item substitutes the reference to "The Minister" in subsection 83(4) with
"The ESOS agency for a registered provider".
Item 100
This item substitutes the reference to "a registered" in subsection 83(4) with
"the".
Item 101
This item substitutes the reference to "the Minister" in subsection 83(4) with
"the agency.
42
Item 102
This item substitutes section 84. New section 84 provides that an ESOS
agency may take action under section 83 even in circumstances where other
action has already been taken under that section in relation to the same
matter.
Item 103
This item substitutes the heading to section 85 with "ESOS agency may take
action for breaches occurring before provider was registered".
Item 104
This item substitutes reference to "Minster may take action against a
registered provider" in section 85 with "ESOS agency for a registered provider
may take action against the provider".
Item 105
This item substitutes reference to "Minister" in subsections 86(1) and (2) with
"ESOS agency for a registered provider".
Item 106
This item inserts new section 87 at the end of Subdivision A of Division 1 of
Part 6 in the Act.
New section 87 sets out what happens in the event that an ESOS agency for
an approved school provider has information suggesting that the school may
have breached the ESOS Act, national code, ELICOS Standards or
Foundation Program Standards.
Subsection 87(1) provides that the section will apply where there are
suspected breaches of the ESOS Act, national code, ELICOS Standards, or
Foundation Program Standards (if applicable) by a registered provider that is
an approved school provider, and the ESOS agency for the provider has
information (the source of which is not the designated State authority for the
provider) about the suspected breach.
Subsection 87(2) provides that, before any action under the Act may be taken
by the ESOS agency regarding the possible breach, the ESOS agency is
required to notify the designated State authority of the possible breach and
may request the authority to investigate the matter or take other appropriate
action.
Subsection 87(3) provides that, notwithstanding subsection 87(2), the ESOS
agency may take action under the ESOS Act in relation to the possible breach
in circumstances where the ESOS agency is of the opinion that the possible
breach requires urgent action.
43
Item 107
This item substitutes section 89 and repeals section 89A. New section 89
deals with automatic suspension if a registered provider is no longer fit and
proper to be registered. The provisions are similar to the current
arrangements (in section 89A of the ESOS Act) but are rephrased to take into
account the introduction of the ESOS agency and designated State authority.
New subsection 89(1) provides that, where the ESOS agency for the
registered provider (not including an exempt provider) is not satisfied that the
provider is fit and proper to be registered, the provider‟s registration will be
suspended in respect of all courses at all locations.
A note at the end of subsection 89(1) clarifies that section 95 sets out the
effect of the suspension.
Subsection 89(2) provides that the registration of a registered provider (other
than an exempt provider) will be suspended for all courses in all locations
where the designated State authority for the provider informs the ESOS
agency that it is no longer satisfied that the provider is fit and proper to be
registered.
A note at the end of subsection 89(2) clarifies that section 95 sets out the
effect of the suspension.
New subsection 89(3) sets out the requirements for notification of suspension.
It provides that, where the registration of a provider has been suspended as a
result of subsection 89(1) or (2), the ESOS agency for the provider must notify
the provider in writing of the suspension. Additionally, where the ESOS
agency considers it appropriate, it may inform another ESOS agency for a
provider of the suspension.
New subsection 89(4) provides that the agency may give a provider a notice
setting out the effect of subsection 89(5) which deals with removal of
suspension if any of the following applies:
in the case of a subsection 89(1) suspension - the ESOS agency for
the provider considers the provider is fit and proper to be registered
again; or
in the case of a subsection 89(2) suspension - the designated State
authority for the provider informs the ESOS agency for the provider it is
satisfied the provider is fit and proper to be registered again.
New subsection 89(5) provides that, where the ESOS agency for a provider
gives notice concerning the removal of the suspension of the provider‟s
registration pursuant to subsection 89(4), the suspension of the provider‟s
registration under subsection 89(1) and (2) is removed by force of subsection
89(5) upon payment of the associated reinstatement fee.
44
Two notes accompany subsection 89(5). Note 1 provides that the ESOS
agency and designated State authority must have regard to the matters
referred to in subsection 7A(2) when making a decision about whether they
are satisfied that the provider is fit and proper to be registered. Note 2 refers
to section 171 for the amount of the reinstatement fee.
Item 108
This item repeals section 91 of the ESOS Act.
Item 109
This item substitutes section 93, which sets out the procedures that an ESOS
agency must follow before action can be taken against providers.
New subsection 93(1) provides that section 93 applies if:
the ESOS agency for a provider or registered provider is considering
imposing a condition on the provider‟s registration pursuant to section
10B and, if the provider is an approved school provider, the condition
is not one recommended in a DSA assessment certificate or a DSA
recommendation certificate;
the ESOS agency for a registered provider is considering action under
Subdivision A of Division 1 of Part 6; or
the ESOS agency for a provider is considering not giving the provider
notice under subsection 89(4).
New subsection 93(2) provides that, before the ESOS agency for a provider
or registered provider decides to take any of the actions contemplated in
subsection 93(1), the agency must give the provider written notice stating that
the agency is considering taking that action, and requesting the provider to
give the agency written submissions about the matter within a period specified
in subsection 93(3).
New subsection 93(3) sets out the relevant time periods for providing written
submissions. These time periods are as follows:
where an ESOS agency for a provider or registered provider is
considering imposing a condition on the provider‟s registration
pursuant to section 10B - 72 hours;
where the ESOS agency for a registered provider is considering taking
action under Subdivision A of Division 1 of Part 6 - 24 hours if the
matter requires urgent action, or otherwise 72 hours; or
where the ESOS agency for a provider is contemplating not giving the
provider a notice under subsection 89(4) - 7 days.
New subsection 93(4) provides that if, after considering any submissions it
has received within these timeframes, the ESOS agency considers it should
proceed with the action contemplated under subsection 89(1), it may proceed
45
to make a decision and must give the provider a written notice of that
decision.
Item 110
This item substitutes the heading at section 94 of the Act so that it reads
"ESOS agency may remove condition of registration or suspension of
registration".
Item 111
This item substitutes reference to "Minister" in subsection 94(1) with "ESOS
agency for the provider".
Item 112
This item substitutes reference to "Minister has given a provider" in section
94(2) with "ESOS agency for the provider has given the provider". This
amendment enables the ESOS agency for the provider to remove a condition
of registration or the suspension of a provider‟s registration.
Item 113
This item substitutes reference to "Minister" in subsection 94(3) with "ESOS
agency for the provider".
Item 114
This item substitutes reference to "Minister has given a provider" in section
94(4) with "ESOS agency for the provider has given the provider".
Item 115
This item substitutes reference to "Minister may give to a provider whose
registration is suspended" in subsection 95(3) with "ESOS agency for a
provider whose registration is suspended may give the provider".
Item 116
This item substitutes reference to "Minister to give to a provider whose
registration is suspended" in subsection 106(1) with "ESOS agency for a
provider whose registration is suspended to give the provider".
Item 117
This item inserts reference to "by the Secretary" after the word "established" in
subsection 109(1) to make it clear that the Secretary establishes the computer
system for the purpose of receiving or storing information about accepted
students and former accepted students given under section 19. As noted
above at item 54, the current system is known as PRISMS.
46
Item 118
This item omits reference to "to the Secretary" from subsection 109(1).
Item 119
This item substitutes subsection 110A(1) which deals with the acceptance of
enforceable undertakings.
New subsection 110A(1) provides that an ESOS agency for a registered
provider may accept a written undertaking given by the provider that either:
the provider will take or refrain from taking specified action so that the
provider complies with a provision of the ESOS Act or the national
code or, where applicable, the ELICOS Standards or the Foundation
Program Standards, or a condition of the provider‟s registration; or
the provider will take specified action so that, in the future, it does not
or is unlikely to contravene a provision of the Act, the national code,
the ELICOS Standards or the Foundation Program Standards (if
applicable), or a condition of the provider‟s registration.
Item 120
This item substitutes reference to "Secretary" in subsections 110A(2), (3) and
(4) with "ESOS agency for the provider".
Item 121
This item substitutes reference to "Secretary" in subsections 110BA(1)(a) with
"ESOS agency for a registered provider".
Item 122
This item substitutes reference to "a registered provider" in paragraph
110B(1)(a) with "the provider".
Item 123
This item substitutes reference to "Secretary" in subsections 110B(1)(c) with
"ESOS agency".
Item 124
This item substitutes the paragraph in section 111A which provides that
registered providers‟ compliance with the ESOS Act and the national code is
monitored under Part 7, with a new paragraph that clarifies that Part 7
provides for the monitoring of registered providers‟ compliance with the ESOS
Act, the national code, the ELICOS Standards and the Foundation Program
Standards.
47
Item 125
This item substitutes reference to "Secretary" with a reference to "ESOS
agency for a registered provider".
Item 126
This item replaces the paragraphs relating to Divisions 3 and 4 of Part 7 in
section 111A with new paragraphs which provide that:
an authorised officer of an ESOS agency for a registered provider may
apply for a Division 3 monitoring warrant to allow the officer to enter
and search a registered provider‟s premises and, if the officer finds
evidential material there, the officer may secure it pending a search
warrant being obtained; or
the authorised officer may apply for a Division 4 search warrant
allowing the officer to enter and search the registered provider‟s
premises and to seize things under a search warrant.
Item 127
This item substitutes reference to "Secretary reasonably believes that an
individual specified in subsection (4)" in subsection 113(1) with "ESOS agency
for a registered provider reasonably believes that a relevant individual of the
provider".
Item 128
This item substitutes reference to "Secretary may give the" in subsection
113(2) with "ESOS agency may give the relevant".
Item 129
This item substitutes reference to "employee" in paragraphs 113(2)(a), (b) and
(c) with "officer of the agency".
Item 130
This item substitutes reference to "Secretary may also give the" in the note to
subsection 113(2) with "ESOS agency may also give the relevant".
Item 131
This item repeals subsection 113(4).
Item 132
This item amends subsection 115(1), which deals with serving production
notices. New subsection 115(1) provides that the ESOS agency for a
48
registered provider, rather than the Secretary, must give a production notice
under section 113 to a relevant individual.
Item 133
This item substitutes reference to "Secretary" in subparagraph 115(1)(b)(i)
with "ESOS agency".
Item 134
This item substitutes reference to "Secretary" in paragraph 115(1)(c) with
"ESOS agency".
Item 135
This item substitutes reference to "Secretary" in subsection 115(2) with
"ESOS agency".
Item 136
This item substitutes reference to "Secretary reasonably believes that an
individual specified in subsection (3)" in subsection 116(1) with "ESOS agency
for a registered provider reasonably believes that a relevant individual of the
provider".
Item 137
This item substitutes reference to "Secretary may give the" in subsection
116(2) with "ESOS agency may give the relevant".
Item 138
This item substitutes reference to "employee" in subsection 116(2) with
"officer of the agency".
Item 139
This item substitutes reference to "Secretary may also give the" in subsection
116(2) with "ESOS agency may also give the relevant".
Item 140
This item repeals subsection 116(3).
Item 141
This item inserts reference to "given to a relevant individual of a registered
provider" after "attendance notice" in subsection 117(1). This amendment is
intended to clarify that an attendance notice is to be given to a relevant
individual of a registered provider.
49
Item 142
This item substitutes reference to "individual" in subsection 117(2) with
"relevant individual of a registered provider".
Item 143
This item substitute reference to "employee" in subsection 122(1) with "officer
of the ESOS agency for a registered provider".
Item 144
This item inserts reference to "given by the agency" after "notice" in
subsection 122(1). This amendment is intended to clarify that the reference to
a production or attendance notice is one that is given by the agency.
Item 145
This item substitutes reference to "An authorised employee" in subsection
124(1) with "An authorised officer of the ESOS agency for a registered
provider".
Item 146
This item substitutes reference to "employee‟s" in paragraph 124(1) with
"officer‟s".
Item 147
This item substitutes reference to "employee" in paragraphs 124(1)(a) and (c)
with "officer".
Item 148
This item substitutes subsection 124(2). New subsection 124(2) provides that
this new subsection covers a person if the person is an employee of the same
ESOS agency as the authorised officer.
Item 149
This item substitutes the heading to section 125 with "Retaining of documents
by authorised officer etc."
Item 150
This item substitutes reference to "An authorised employee" in subsection
125(1) with "An authorised officer of the ESOS agency for a registered
provider".
50
Item 151
This item substitutes reference to "employee" in the note to subsection 125(1)
with "officer".
Item 152
This item substitutes reference to "employee under" in the note to subsection
125(1) with "officer under".
Item 153
This item substitutes reference to "employee" in the note to subsection 125(2)
with "officer".
Item 154
This item substitutes reference to "employee" in the note to subsection 125(2)
with "officer".
Item 155
This item substitutes subsection 125(3). New subsection 125(3) provides that
the subsection covers a person if they are an employee of the same ESOS
agency as the authorised officer.
Item 156
This item substitutes reference to "An employee retaining" in subsection
126(1) with "A person who retains".
Item 157
This item substitutes reference to "employee" in subsection 126(3) with
reference to a "person retaining the document".
Item 158
This item substitutes the heading to section 128 with "Authorised officer etc.
may apply to retain document for a further period."
Item 159
This item substitutes subsection 128(1), which deals with applications to
retain documents for a further period.
New subsection 128(1) provides that an authorised officer of the ESOS
agency for a registered provider or another permitted person who is given a
document under Division 2 of Part 7 and is retaining the document pursuant to
51
section 125, may apply to a magistrate or tribunal member for an order that
the officer or permitted person may retain the document for a further period.
Item 160
This item substitutes reference to "employee" in subsection 128(2)(a) with
"officer".
Item 161
This item substitutes the heading to section 160 with "Persons affected by
notice to be notified if practicable".
Item 162
This item substitutes all references to "employee" in subsection 128(3) with
"officer or permitted person".
Item 163
This item substitutes all references to "employee" in section 129 with "person".
Item 164
This item substitutes the heading to section 130 with "Authorised officer may
enter premises for a monitoring purpose".
Item 165
This item substitutes reference to "employee" in subsection 130(1) with
"officer of the ESOS agency for a registered provider".
Item 166
This item substitutes reference to "a registered provider" in subparagraph
130(1)(a)(i) with "the provider".
Item 167
This item substitutes reference to "An authorised employee" in subsection
130(2) with "The authorised officer".
Item 168
This item substitutes references to "employee" in paragraph 130(2)(A) with
"officer".
52
Item 169
This item substitutes the heading to section 131 so that it reads "Monitoring
powers of authorised officers".
Item 170
This item substitutes reference to "an authorised employee" in subsection
131(1) with "an authorised officer of the ESOS agency for a registered
provider".
Item 171
This item substitutes references to "employee" in paragraph 131(1)(g) with
"officer".
Item 172
This item substitutes references to "employee" in subparagraphs 131(1)(h)(i),
(ii) and (iii) with "officer".
Item 173
This item substitutes reference to "an authorised employee" in subsection
131(5) with "the authorised officer".
Item 174
This item substitutes the heading to section 132 with "Authorised officer on
premises with consent may ask questions".
Item 175
This item substitutes reference to "An authorised employee" in subsection 132
with "An authorised officer of the ESOS agency for a registered provider".
Item 176
This item substitutes reference to "employee any document requested by the
employee" in subparagraph 132(a)(ii) with "officer any document requested by
the officer".
Item 177
This item substitutes the heading to section 133 with "Authorised officer on
premises under warrant may ask questions".
53
Item 178
This item substitutes reference to "An authorised employee" in section 133
with "The authorised officer of the ESOS agency for a registered provider".
Item 179
This item substitutes reference to "employee any document requested by the
employee" in subparagraph 133(a)(ii) with "officer any document requested by
the officer".
Item 180
This item substitutes reference to "employee" in subsection 134(1) with
"authorised officer".
Item 181
This item substitutes reference to "employee" in section 135 with "authorised
officer".
Item 182
This item substitutes reference to "authorised employee" in subsection 136(1)
with "authorised officer of the ESOS agency for a registered provider".
Item 183
This item substitutes reference to "employee may" in subsection 136(1) with
"authorised officer".
Item 184
This item substitutes the heading to section 137 with "Authorised officer may
apply for a monitoring warrant".
Item 185
This item substitutes reference to "authorised employee" in subsection 137(1)
with "authorised officer of the ESOS agency for a registered provider".
Item 186
This item substitutes reference to "employee" in subsection 137(2) with
"authorised officer".
Item 187
This item substitutes reference to "employees" in section 138 with "officers of
the ESOS agency for the registered provider".
54
Item 188
This item substitutes reference to "employee" in subsection 139(1) with
"officer of the ESOS agency for the registered provider".
Item 189
This item substitutes reference to "employee" in subsection 139(3) with
"authorised officer".
Item 190
This item substitutes reference to "employees" in paragraph 140(1)(a) with
"officers of the ESOS agency for the registered provider".
Item 191
This item substitutes reference to "employees" in subsection 140(2) with
"officers".
Item 192
This item substitutes the heading to section 141 with "Authorised officer may
enter premises to look for evidential material".
Item 193
This item substitutes reference to "employee" in subsection 141(1) with
"officer of the ESOS agency for the registered provider".
Item 194
This item substitutes all references to "employee" in subsection 141(2) with
"officer".
Item 195
This item substitutes reference to "an authorised employee" in subsection
141(3) with "the authorised officer".
Item 196
This item substitutes reference to "employee" in paragraph 141(3)(a) with
"officer".
Item 197
This item substitutes the heading to section 142 with "Search powers of
authorised officers".
55
Item 198
This item substitutes reference to "employee" in subsection 142(1) with
"officer of the ESOS agency for the registered provider".
Item 199
This item substitutes reference to "employee" in paragraph 142(1)(f) with
"officer".
Item 200
This item substitutes reference to "An authorised employee" in subsection
142(5) with "The authorised officer".
Item 201
This item substitutes reference to "An authorised employee" in subsection
142(6) with "The authorised officer".
Item 202
This item substitutes reference to "employee" in subsection 142(6) with
"officer".
Item 203
This item substitutes reference to "an authorised employee" in subsection
142(6) with "the authorised officer".
Item 204
This item substitutes the heading to section 143 with "Authorised officer may
apply for a search warrant".
Item 205
This item substitutes reference to "employee" in subsection 143(1) with
"officer of the ESOS agency for a registered provider".
Item 206
This item substitutes reference to "employee" in subsection 143(2) with
"authorised officer".
Item 207
This item substitutes reference to "employee" in subsection 145(1) with
"officer of the ESOS agency for a registered provider".
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Item 208
This item substitutes reference to "employee" in subsection 145(3) with
"authorised officer".
Item 209
This item substitutes reference to "employee" in paragraph 146(1)(a) with
"officer of the ESOS agency for a registered provider".
Item 210
This item substitutes reference to "employee" in subsection 146(2) with
"officer".
Item 211
This item substitutes reference to "employee" in sections 147 and 148 with
"officer of the ESOS agency for a registered provider".
Item 212
This item substitutes reference to "if the authorised employee" in subsection
149(1) with "if an authorised employee of the ESOS agency for the registered
provider".
Item 213
This item substitutes reference to "employee" in subparagraphs 149(1)(a)(i)
and (ii) with "officer".
Item 214
This item substitutes reference to "employee" in subsection 149(2) with
"officer".
Item 215
This item substitutes the heading to subsection 149(3) with "Authorised officer
must give notice".
Item 216
This item substitutes reference to "employee" in subsection 149(3) with
"officer".
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Item 217
This item substitutes reference to "employee" in subsection 150(1) with
"officer of the ESOS agency for a registered provider".
Item 218
This item substitutes reference to "employee" in subsection 150(2) with
"officer".
Item 219
This item substitutes reference to "employee on premises under section 130
or 141 if the employee" in subsection 151(1) with "officer of the ESOS agency
for a registered provider is on premises under section 130 or 141 if the
authorised officer".
Item 220
This item substitutes all references to "employee" in subsection 151(2) with
"officer".
Item 221
This item substitutes reference to "employee" in subsection 151(2) with
"officer of the ESOS agency for a registered provider".
Item 222
This item substitutes all references to "employee" in subsections 152(2) and
(3) with "officer".
Item 223
This item substitutes the heading to section 153 with "Authorised officer may
apply for a thing to be retained for a further period".
Item 224
This item substitutes reference to "employee" in subsection 153(1) with
"officer of the ESOS agency for a registered provider".
Item 225
This item substitutes all references to "employee" in subsections 153(2) and
(3) with "officer".
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Item 226
This item substitutes the heading to subsection 153(3) with "Authorised officer
must try to notify those affected".
Item 227
This item substitutes all references to "employee" in subsections 153(3) and
(3) with "officer".
Item 228
This item substitutes reference to "authorised employee" in subsection 154(1)
with "authorised officer of the ESOS agency for a registered provider".
Item 229
This item substitutes references to "the employee" in subsection 154(1) with
"the officer".
Item 230
This item substitutes references to "employee" in subsection 154(1) with
"authorised officer".
Item 231
This item substitutes the heading to section 155 with "Occupier to provide
authorised officer with all facilities and assistance".
Item 232
This item substitutes reference to "an authorised employee" in subsection
155(1) with "an authorised officer of the ESOS agency for a registered
provider".
Item 233
This item substitutes reference to "that employee" in subsection 155(1) with
"that officer".
Item 234
This item substitutes the heading to Subdivision B of Division 5 of Part 7 with
"Obligations on authorised officers etc."
Item 235
This item substitutes reference to "employee" in subsection 156(1) with
"officer of the ESOS agency for a registered provider".
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Item 236
This item substitutes all references to "employee" in subsection 156(2) with
"officer".
Item 237
This item substitutes reference to "obtaining" in subsection 157(1) with "an
authorised officer of the ESOS agency for a registered provider obtains".
This amendment is intended to clarify that it is the authorised officer of the
ESOS agency for a registered provider who needs to obtain the consent of a
person for the purposes of paragraphs 130(2)(a) or 141(3)(a) (the authorised
officer must also inform the person that he or she may refuse consent).
Item 238
This item substitutes reference to "employee" in subsection 157(1) with
"officer".
Item 239
This item substitutes reference to "an authorised employee" in subsection
157(2) with "the authorised officer".
Item 240
This item substitutes reference to "employee" in subsection 158(1) with
"officer of the ESOS agency for a registered provider".
Item 241
This item substitutes reference to "if a monitoring warrant or a search warrant
is being executed" in subsection 159(1) with "if an authorised officer of the
ESOS agency for a registered provider is executing a monitoring warrant or a
search warrant".
Item 242
This item substitutes reference to "employee" in subsections 159(1) and (2)
with "officer".
Item 243
This item substitutes subsection 162(1). New subsection 162(1) provides that
the ESOS agency for a registered provider must give each authorised officer
of the agency an identity card.
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Item 244
This item substitutes reference to "Secretary" in paragraph 162(2)(a) with
"ESOS agency for a registered provider".
Item 245
This item substitutes reference to "employee" in paragraph 162(2)(b) with
"authorised officer of the agency".
Item 246
This item substitutes reference to "employee" in paragraph 162(3)(b) with
"officer of the ESOS agency for a registered provider".
Item 247
This item substitutes reference to "Secretary" in paragraph 162(3)(c) with
"agency".
Item 248
This item substitutes the heading to subsection 162(6) with "Authorised officer
must always carry identity card".
Item 249
This item substitutes reference to "employee" in subsection 162(6) with
"officer of the ESOS agency for a registered provider".
Item 250
This item substitutes the heading to section 163 with "Authorised officer must
produce identity card on request".
Item 251
This item substitutes reference to "An authorised employee" in section 163
with "An authorised officer of the ESOS agency for a registered provider".
Item 252
This item substitutes reference to "employee" in paragraphs 163(a) and (b)
with "officer".
Item 253
This item substitutes the heading to section 164 with "Authorised officer may
apply for warrants by telephone etc.".
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Item 254
This item substitutes reference to "An authorised employee" in subsection
164(1) with "An authorised officer of the ESOS agency for a registered
provider".
Item 255
This item substitutes reference to "employee" in subsection 164(1) with "the
authorised officer".
Item 256
This item substitutes reference to "employee" in subsection 164(3) with
"officer".
Item 257
This item substitutes reference to "employee" in subsection 164(4) with
"authorised officer".
Item 258
This item substitutes reference to "employees" in paragraph 165(2)(a) with
"officers of the ESOS agency for a registered provider".
Item 259
This item substitutes reference to "the authorised employee" in paragraph
166(2)(a) with "an authorised officer of the ESOS agency for a registered
provider".
Item 260
This item substitutes the heading to subsection 166(3) with "Obligations on
authorised officers".
Item 261
This item substitutes all references to "employee" in subsection 166(3) with
"officer".
Item 262
This item substitutes the heading to subsection 167(1) with "Obligations on
authorised officers".
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Item 263
This item substitutes reference to "An authorised employee" in subsection
167(1) with "An officer of the ESOS agency for a registered provider".
Item 264
This item substitutes reference to "employee" in subsection 167(1)(a) with
"officer"
Item 265
This item substitutes reference to "Minister, Immigration Minister or Secretary"
in subsection 170A(1) with "ESOS agency for a provider or immigration
Minister".
Item 266
This item amends subsection 170A(2) to provide that that the ESOS agency
for a provider may publish the following information (in accordance with the
way the Secretary specifies under subsection 170A(4)):
action taken against the provider; and
results of that action (this could include, for example, recommendations
given to the provider and actions the provider has taken in response to
the recommendations).
Item 267
This item substitutes reference to "taken; and" in paragraph 170A(2)(a) with
"taken;"
Item 268
This item substitutes reference to "a provider" in subparagraph 170A(2)(b)(i)
with "the provider".
Item 269
This item substitutes reference to "if the Secretary" in subsection 170A(3) with
"if the ESOS agency for the provider".
Item 270
This item substitutes reference to "Secretary must" in subsection 170A(3) with
"agency must".
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Item 271
This item substitutes subsection 170A(4). New subsection 170A(4) provides
that the Secretary may, by legislative instrument, specify the way in which the
ESOS agency for a registered provider publishes the information referred to in
subsection 170A(2).
This amendment is intended to ensure consistency in the way ESOS
agencies publish information about certain matters.
Item 272
This item substitutes subsections 170(1) to (4) relating to delegations under
the ESOS Act.
New subsection 170(1) provides for delegations by the Minister. In particular,
it provides that the Minister may, in writing, delegate any or all of his or her
functions and powers under the ESOS Act to the Secretary, or a departmental
SES employee or acting SES employee.
A note at the end of the subsection clarifies that "SES employee" and "acting
SES employee" are defined in section 2B of the Acts Interpretation Act 1901.
New subsection 170(2) provides that the delegate must comply with any
directions of the Minister when exercising functions or powers under
subsection 170(1).
New subsection 170(3) provides that the Secretary may delegate any or all of
his or her functions and powers under the ESOS Act (including those as the
ESOS agency for a provider or registered provider) to a departmental SES
employee or acting SES employee, or to an APS employee in the department
who holds or performs the duties of an Executive Level 1 or 2 position or
equivalent. Delegations by the Secretary may also be made to TEQSA or to
the National VET Regulator.
A note at the end of the subsection clarifies that "SES employee" and "acting
SES employee" are defined in section 2B of the Acts Interpretation Act 1901.
New subsection 170(4) provides that the delegate must comply with any
directions of the Secretary when exercising functions or powers under
subsection 170(3).
New subsection 170(4A) provides for delegations by ESOS agencies. An
ESOS agency for a provider or registered provider (not including the
Secretary) may delegate in writing any or all of the agency‟s functions or
powers under the ESOS Act to the following persons:
if the agency is TEQSA - a person or authority mentioned in
subsection 199(1) of the TEQSA Act;
64
if the agency is the National VET Regulator - a person or authority
mentioned in subsection 224(1) of the NVETR Act; or
otherwise - a person who is an employee or constituent member of the
agency, if the agency is satisfied that the person has suitable
qualifications and experience.
New subsection 170(4B) provides that the delegate must comply with any
directions of the ESOS agency when exercising functions or powers under
subsection 170(4A).
Item 273
This item inserts new section 171A in Part 8 of the Act. New section 171A
provides for subdelegation by TEQSA or National VET Regulator.
New subsection 171A(1) provides that, where the Secretary delegates a
function or power under subsection 170(3) to TEQSA, TEQSA may in writing
subdelegate the function or power to a member of TEQSA who is an SES
employee (or acting SES employee), or a person who holds or performs the
duties of an Executive Level 1 or 2 position or an equivalent position. A note
at the end of the subsection explains that "SES employee" and "acting SES
employee" are defined in section 2B of the Acts Interpretation Act 1901.
New subsection 171A(2) similarly provides that where the Secretary
delegates a function or power under subsection 170(3) to the National VET
Regulator, the National VET Regulator may in writing subdelegate the
function or power to a member of the Regulator„s staff (within the meaning of
the NVETR Act) who is an SES employee, or acting SES employee or holds
or performs the duties of an Executive Level 1 or 2 position or an equivalent.
A note at the end of the subsection explains that "SES employee" and "acting
SES employee" are defined in section 2B of the Acts Interpretation Act 1901.
Item 274
This item substitutes references to subsections 89(3) and 89A(3) in
subsection 171A(1) with a reference to subsection 89(5).
This is a consequential amendment to item 107 of Schedule 1, which repeals
sections 89 and 89A and substitutes a new section 89.
Item 275
This item substitutes paragraph (1)(b) and inserts new paragraph (1)(ba) in
section 172.
New paragraph 172(1)(b) refers to "second entry to market charge". New
paragraph 172(1)(ba) refers to "third entry to market charge".
65
This amendment is intended to require a registered provider to pay a penalty
for late payment of a "second entry to market charge" or "third entry to market
charge" respectively
Item 276
This item substitutes the note to subsection 172(1). The new note clarifies that
if a registered provider breaches section 172, the ESOS agency for the
provider may take action against the provider under Division 1 of Part 6.
Item 277
This item substitutes paragraph (1)(aa) and inserts new paragraph (ab) in
section 173. New paragraph 173(1)(aa) refers to "second entry to market
charge". New paragraph 173(1)(ab) refers to "third entry to market charge" .
This amendment is intended to clarify that a "second entry to market charge"
and a "third entry to market charge" are recoverable as debts due to the
Commonwealth. Item 25 of Schedule 1 amends section 5 to insert new
definitions for "second entry to market charge" and "third entry to market
charge".
Item 278
This item substitutes reference to "and the national code" in paragraph
175(1)(a) with "the national code, the ELICOS Standards and the Foundation
Program Standards".
This amendment is intended to clarify that a provider‟s compliance
obligations under the Act may extend to compliance with the ELICOS
Standards and the Foundation Program Standards.
Item 279
This item inserts the phrase "or the ESOS agency for a provider or registered
provider" after reference to "Secretary" in subsection 175(1).
This amendment is intended to enable the ESOS agency for a provider or
registered provider to disclose information for the purpose of "promoting
compliance with this Act, the national code, the ELICOS Standards and the
Foundation Program Standards".
Item 280
This item inserts paragraphs (ea) and (eb) in subsection 175(1).
New paragraph 175(1)(ea) refers to the ESOS agency for a provider or
registered provider. New paragraph 175(1)(eb) refers to the Secretary.
66
This amendment is intended to authorise the disclosure of information to the
ESOS agency for a provider or to the Secretary.
Item 281
This item substitutes reference to "the national code" in paragraph 175(2)(a)
with "the national code, the ELICOS Standards and the Foundation Program
Standards".
This amendment is intended to authorise disclosure of information for the
purpose of promoting compliance with the ELICOS Standards and the
Foundation Program Standards.
Item 282
This item amends subsection 175(2) so that the information can be disclosed
by either the Secretary or the ESOS agency for a provider or registered
provider.
Education Services for Overseas Students (TPS Levies) Act 2012
Item 283
This item omits reference to section 9AB from subsection 5(3) of the Levies
Act.
Currently, subsection 5(3) of the Levies Act provides that a provider who is
not yet registered, but is seeking to be registered under section 9AB of the
ESOS Act in a year, is liable to pay a TPS levy for that year. Item 35 of
Schedule 1 repeals Subdivision A of Division 3 of Part 2 which deals with
registration of approved providers, including section 9AB.
National Vocational Education and Training Regulator Act 2011
Item 284
This item inserts reference to "or the Education Services for Overseas
Students Act 2000" after reference to "this Act" in subparagraph 204(c)(i) in
the NVETR Act.
This amendment is intended to prevent disclosure of VET information other
than in connection with the duties of the "entrusted person" (as defined under
the NVETR Act). It is also intended to enable ASQA to use information
obtained under the NVETR Act for the purposes of assessing a provider‟s
compliance with the ESOS Act.
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Tertiary Education Quality and Standards Agency Act 2011
Item 285
This item inserts reference to "or the Education Services for Overseas
Students Act 2000" after reference to "this Act" in paragraph 188(2)(a) in the
TEQSA Act.
This amendment is intended to enable TEQSA to use information obtained
under the TEQSA Act for the purposes of assessing a provider‟s compliance
with the ESOS Act. It is also intended to prevent disclosure of higher
education information other than in connection with the duties of the
„"entrusted person" (as defined under the TEQSA Act).
68
Schedule 2 Review of decisions
Summary
Currently, section 176 of the ESOS Act provides for merits review of certain
decisions made by the Secretary, TPS Director and their delegates, by the
AAT.
Schedule 2 to the Bill will provide for an internal review process for decisions
made by delegates of ESOS agencies. Utilising an internal review process
can result in considerable savings in time and resources for education
providers. An internal appeal will facilitate fair and timely resolution of matters
that the affected provider may otherwise not have been willing to appeal
because of the cost involved in taking matters to the AAT.
A provider affected by a reviewable decision made by a delegate of an ESOS
agency will be able to choose whether to have the decision reviewed
internally by the agency, or reviewed by the AAT. If the decision is internally
reviewed, and the affected provider is still concerned with the internal review
decision, the provider can seek to have that internal review decision reviewed
by the AAT. In essence, internal review of a decision by a delegate of an
ESOS agency is an optional first review step for an affected provider, and the
provider will always be able to have the decision externally reviewed by the
AAT.
Decisions made by an ESOS agency itself, i.e. ASQA, TEQSA or the
Secretary personally, are not subject to internal review (although such
decisions can be reviewed by the AAT).
An internal review can be initiated in relation to a decision to refuse to register
a provider or renew a registered provider‟s registration, or a decision to take
certain enforcement action against a registered provider. New section 169AB
includes a table setting out the reviewable decisions and the providers able to
seek review of those decisions.
Rules for the internal review, including the form of the application for review,
the timeframes for lodgment and completion of the review, and other
conditions for the conduct of the review are set out in the new provisions
inserted by the Bill. The internal reviewer is empowered to affirm, vary or set
aside the reviewable decision, and to make another decision.
The new provisions also provide that applications can be made to the AAT for
review of reviewable decisions (i.e. the decisions set out in the table in
69
section 169AB), internal review decisions, and determinations by the TPS
Director of amounts of TPS levy payable by providers.
The internal review process has been requested by ASQA and TEQSA, in
order to provide similar appeal processes for providers under the ESOS Act to
those available in the TEQSA Act and the NVETR Act.
Detailed explanation
Education Services for Overseas Students Act 2000
Item 1
This item inserts the following definitions into section 5 as follows:
the "affected provider" for a reviewable decision has the meaning given
by new section 169AB (i.e. the provider listed in Column 2 of the table
in the new section) (see item 5 of this Schedule);
an "internal reviewer" means the ESOS agency itself, or a delegate of
the ESOS agency referred to in paragraph 169AE(1)(b) (see item 5 of
this Schedule); and
a "reviewable decision" has the meaning given by new section 169AB
(i.e. the decision listed in Column 1 of the table in the new section) (see
item 5 of this Schedule).
Item 2
Section 14B of the ESOS Act requires the Secretary to ensure that CRICOS
is kept up-to-date, including making alterations when a provider has applied to
the AAT for the review of a decision to suspend or cancel, or to impose a
condition on a provider‟s registration (paragraph 14B(2)(d)).
This item omits reference to the AAT from paragraph 14B(2)(d). This is a
consequential amendment to the amendments to the Act made by item 5 of
this Schedule, which will (amongst other things) enable internal review of
decisions to suspend, cancel or impose conditions on a provider‟s approval.
Therefore, the reference to review only by the AAT in paragraph 14B(2)(d) is
incorrect.
Items 3 and 4
Section 53A of the ESOS Act provides that the TPS Director must make
written determinations each year of the amount of TPS levy to be paid by
each provider required to pay a contribution. Section 53B requires the TPS
Director to give written notices to those providers required to pay a TPS levy.
Note 2 to subsection 53B(1) explains that providers may seek AAT review of
the amount of the TPS levy. Item 3 repeals note 2 and is also a consequential
amendment to item 5 of this Schedule, which inserts a new Part 7A into the
70
ESOS Act dealing with the review of decisions. New section 169AG provides
for review by the AAT, including in respect of determinations made by the
TPS Director of an amount of TPS levy payable by a provider or registered
provider under subsection 53A(1).
Item 4 amends section 53B to add new subsections 53B(3) and (4). New
subsection 53B(3) provides that the TPS Director‟s written notices to
providers must also include the reasons for the Director‟s section 53A
determinations and a statement that providers may make an application under
section 169AG for review of determinations by the AAT. New subsection
53B(4) provides that the failure to give such written notices does not affect the
validity of the Director‟s determinations.
Item 5
This item inserts a new Part 7A into the ESOS Act dealing with the review of
decisions made under the Act. Part 7A consists of new sections 169AA,
169AB, 169AC, 169AD, 169AE, 169AF and 169AG.
New section 169AA explains that new Part 7A relates to the administrative
review of decisions made under the ESOS Act and operates as follows:
an affected provider for a reviewable decision can apply for an internal
review of a decision made by delegate of the ESOS agency for that
provider;
the internal reviewer‟s decision is subject to review by the AAT; and
a determination made by the TPS Director under subsection 53A(1) of
an amount of TPS levy a provider or registered provider is liable to pay
is subject to review by the AAT.
New section 169AB contains a table, column 1 of which sets out those
decisions under the ESOS Act that are "reviewable decisions" and column 2
of which specifies who is the "affected provider" for each of those reviewable
decisions.
New section 169AC requires an ESOS agency, as soon as practicable after
making a reviewable decision, to give an affected provider a written notice
setting out the terms of the decision, reasons for the decision and review
rights. However, failure to give such a notice does not affect the validity of the
reviewable decision.
New section 169AD provides that, when a reviewable decision is made by a
delegate of the ESOS agency for an affected provider, the affected provider
may apply to the agency for the decision to be reviewed. An application for
review must be in the form approved in writing by the ESOS agency,
accompanied by any information and documents the agency requires and
made within 30 days after the affected provider is notified of the decision (or
within a longer period as allowed by the agency).
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New section 169AE provides for an internal review of reviewable decisions
and operates as follows:
if an affected provider applies under new section 169AD to an ESOS
agency for review of a reviewable decision, the agency must review the
decision itself or arrange for the decision to be reviewed by a delegate
of the agency who was not involved in making the original decision and
who holds a position that is at least the same level as the original
decision-maker;
the internal reviewer may affirm, vary or set aside the reviewable
decision;
if the internal reviewer sets the decision aside, he or she may make
another decision as he or she considers appropriate;
the decision (called the "internal review decision") is taken to have
been made under the provision of the ESOS Act under which the
reviewable decision was made (other than for the purposes of new
section 169AB); and
as soon as practicable after making an internal review decision, the
internal reviewer must give the applicant a written notice setting out the
terms of the decision, reasons for the decision and the applicant‟s right
to seek AAT review of the internal review decision (but the failure to
give such a notice does not affect the validity of the internal review
decision).
New section 169AF provides that the internal reviewer must make the internal
review decision within 90 days after the application is made for review; and if
the internal reviewer does not do so, the reviewer is taken to have affirmed
the original decision at the end of that 90-day period.
New section 169AG provides that application may be made to the AAT for a
review of decisions as follows:
an affected provider for a reviewable decision (i.e. a decision set out in
the table in new section 169AB) can apply for review of the decision;
an affected provider for a reviewable decision can apply for review of
an internal review decision; and
a provider or registered provider required to pay an amount of TPS levy
determined by the TPS Director under subsection 53A(1) can apply for
review of that determination.
Items 6 and 7
Section 169A of the Act explains that Part 8 contains several miscellaneous
provisions, including section 176 relating to review of decisions. As a
consequence of the repeal of section 176 by item 7, item 6 amends section
169A to omit reference to Part 8 containing provisions relating to the review of
decisions.
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Item 7 repeals section 176 of the ESOS Act, which deals with the review of
decisions. This is now to be dealt with under new Part 7A, thus rendering
section 176 redundant.
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Schedule 3 Ministerial directions
Summary
Currently, TEQSA and ASQA perform functions and exercise powers under
the ESOS Act as delegates of the Secretary. However, Schedule 1 to this Bill
will amend the Act to vest powers directly in TEQSA and ASQA as ESOS
agencies. The new provisions reduce the duplication in the roles performed by
the Secretary, TEQSA and ASQA but also alter the distribution of powers in
the ESOS Act. To ensure appropriate oversight and responsibility is
maintained to account for those changed arrangements, the Minister will be
able to give a direction to an ESOS agency in relation to its functions under
the Act.
Accordingly, Schedule 3 to the Bill will amend the ESOS Act to include a
power for the Minister to make a legislative instrument issuing a direction to
an ESOS agency about the performance of its functions under the ESOS Act.
The Minister must not give a direction about or in relation to a particular
provider or registered provider and any direction made is subject to
disallowance.
The amendment will align the ESOS Act with the TEQSA Act and the NVETR
Act, which both empower the Minister to issue directions to TEQSA and
ASQA in relation to their functions under the respective Acts. Consequential
amendments will be made to those two Acts to support the proposed
amendments to the ESOS Act.
Detailed explanation
Education Services for Overseas Students Act 2000
Item 1
This item inserts a new section 170C into the ESOS Act to enable the
Minister, by legislative instrument, to give directions to the ESOS agency
about the performance of the agency‟s functions under the Act.
Such directions:
are disallowable by Parliament;
are not subject to sunsetting;
must not relate to a particular provider or registered provider; and
must be complied with by the ESOS agency concerned.
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One of the principal objects of the ESOS Act is "to complement Australia‟s
immigration laws by ensuring providers collect and report information relevant
to the administration of the law relating to student visas" (paragraph 4A(c)).
Accordingly, in some circumstances it may be appropriate for the Minister to
consult with the Immigration Minister about a particular direction to an ESOS
agency, and the amendments expressly recognise this consultation, without
mandating it.
National Vocational Education and Training Regulator Act 2011
Item 2
Section 159 of the NVETR Act provides that, subject to section 160 of that Act
(which enables the Minister to give certain directions to ASQA), ASQA is not
subject to directions from anyone in relation to the performance of its
functions and the exercise of its powers.
This item amends section 159 to make it clear that the constraint on directions
is also subject to any directions the Minister may give ASQA (in its role as an
ESOS agency) under section 170C of the ESOS Act.
Tertiary Education Quality Standards Agency Act 2011
Item 3
Section 135 of the TEQSA Act provides that, subject to section 136 of that Act
(which enables the Minister to give certain directions to TEQSA), TEQSA is
not subject to directions from anyone in relation to the performance of its
functions and the exercise of its powers.
This item amends section 135 to make it clear that the constraint on directions
is also subject to any directions the Minister may give TEQSA (in its role as an
ESOS agency) under section 170C of the ESOS Act.
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Schedule 4 TPS Director
Summary
The proposed amendments to the ESOS Act in Schedule 4 to the Bill are
intended to improve the ability of the TPS Director to effectively manage the
tuition protection framework and support the work of ESOS agencies by
making recommendations in relation to enforcement action.
In discharging his or her functions, the TPS Director is privy to certain
information about the activity of education providers and plays a vital role in
ensuring providers meet their obligations to students. It is therefore important
that information and evidence held by the TPS Director is considered when an
ESOS agency is making decisions and assessing a provider‟s compliance
with the requirements under the ESOS Act.
Currently, information in the TPS Director‟s possession can be shared with
regulatory authorities. New measures will expand the functions of the TPS
Director to enable him or her to make a recommendation to an ESOS agency
that the agency take enforcement action against a provider. The ESOS
agency must consider the TPS Director‟s recommendation when deciding
whether to take particular enforcement action against a registered provider
under the ESOS Act.
A further measure to streamline administrative processes under the ESOS Act
will allow the TPS Director to issue a production notice to an education
provider in the TPS Director‟s own right. Currently the TPS Director is only
able to access information from providers if a delegate of the Secretary issues
a production notice to a provider. The new measures will enable the TPS
Director to issue a production notice where the Director reasonably believes
that a relevant individual of a registered provider has, or has access to,
information or documents that are relevant to the performance of the
Director‟s functions. It will be an offence if there is a failure to comply with a
production notice.
The amendments allow the TPS Director to be assisted by a "TPS officer" in
the performance of the Director‟s functions.
In addition, to remove any uncertainty regarding whether the TPS Director is
an "official" of the Department within the meaning of the Public Governance,
Performance and Accountability Act 2013, amendments to the Act in
Schedule 4 provide that the TPS Director is an "official".
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Detailed explanation
Education Services for Overseas Students Act 2000
Item 1
This item amends the definition of "production notice" in section 5 of the
ESOS Act so that it also includes a notice given by the TPS Director under
new section 113A (see item 8 of this Schedule).
Item 2
This item inserts a definition of "TPS officer" in section 5 to mean either an
APS employee of the department who assists the TPS Director to perform his
or her functions, or a consultant that the TPS Director engages under
section 54L of the ESOS Act.
Item 3
Section 54B of the ESOS Act sets out the TPS Director‟s functions. This item
amends section 54B to give the TPS Director a new function of
recommending that the ESOS agency for a registered provider take one or
more actions against the provider under subsection 83(1A) of the Act (e.g. to
impose conditions on, suspend, or cancel a provider‟s approval).
The Director‟s new function links to the amendment to section 83 of the Act
made by item 5 of this Schedule.
Item 4
This item adds a new section 54N at the end of Division 3 of Part 5A of the
Act. New section 54N provides that, for the purposes of the finance law (as
per the Public Governance, Performance and Accountability Act 2013) (PGPA
Act)), the TPS Director is an official of the Department. (Under section 8 of the
PGPA Act, "finance law" means the PGPA Act, rules made under section 101
of the PGPA Act and instruments made under the PGPA Act or an
Appropriation Act.)
The purpose of this amendment is to put beyond doubt the TPS Director‟s
ability to utilise and commit Commonwealth resources as a delegate of the
Secretary of the Department under the finance law, in accordance with the
requirements of the finance law, Secretary‟s instructions, and other applicable
policies and procedures.
Item 5
This item inserts a new subsection 83(1AA) into section 83. New sub-
section 83(1AA) provides that, when deciding whether to take action against a
registered provider under subsection 83(1A), the ESOS agency for the
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provider must consider any recommendation about the provider made by the
TPS Director under paragraph 54B(fa) (see item 3 of this Schedule).
Item 6
Section 111A of the ESOS Act is a guide to Part 7 of the Act which deals with
monitoring and searching providers. This item expands the second dot point
of this guide to reflect the new power of the TPS Director to issue production
notices in his or her own right (see item 8 of this Schedule).
Item 7
This item repeals and substitutes the heading to section 113 so that it reads
"113 ESOS agency for a registered provider may give a production notice".
Item 8
This item inserts a new section 113A into the ESOS Act that empowers the
TPS Director to issue a notice to specified persons to produce certain
information to the Director. Currently, if the Director needs information about a
provider‟s compliance with Part 5 of the Act to properly perform his or her
statutory functions, the Director needs to ask a delegate of the Secretary to
issue a production notice on the Director‟s behalf. Given the TPS Director‟s
statutory functions and role, it is appropriate that the Director is able to require
the production of information directly.
New section 113A applies if the TPS Director has a reasonable belief that a
relevant individual of a registered provider has, or has access to, information
or documents that are relevant to the performance of the TPS Director‟s
Part 5 functions. If so, the TPS Director may give that person a written
production notice requiring him or her to give the information or documents to
a TPS officer (as defined - see item 2), show the documents to a TPS officer,
or make and give copies of the documents to the TPS officer. If the
information or documents are in any particular form, the production notice
may require the information or documents to be given in that form.
Items 9 to 25
The balance of items in Schedule 4 to the Bill simply amend Division 2 of
Part 7 of the ESOS Act to deal with the TPS Director‟s power to give a
production notice under new section 113A. The amendments are
consequential, and where the TPS Director or a TPS officer has an obligation
or power, it reflects an existing obligation or power of an ESOS agency or
authorised officer under Division 2 of Part 7 of the Act.
Section 114 of the Act specifies what a production notice must contain. Items
9 and 10 amend subsection 114(1) to take account of the fact that a
production notice can be issued under section 113 or 113A by an ESOS
agency or the TPS Director, respectively.
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Section 115 relates to how production notices are served. Items 11 and 12
amend section 115 to include reference to production notices issued under
section 113A by the TPS Director. A production notice issued by the TPS
Director under section 113A must be served in the same way as a production
notice issued by an ESOS agency under section 113.
Item 14 inserts a new section 122A, which provides for an offence, carrying a
maximum penalty of 12 months imprisonment, for a person who gives a TPS
officer a document in compliance (or purported compliance) with a section
113A production notice given to the person, and that document is false or
misleading in a material particular. The new section 122A corresponds with
the existing section 122, which makes it an offence for a person who gives an
authorised officer (c.f. TPS officer) a false or misleading document.
Item 16 adds a new subsection 124(3) to authorise the TPS Director or a TPS
officer to inspect, copy and retain documents produced under a production
notice, consistent with the authority of an ESOS agency and its authorised
officers under the existing section 124.
Item 17 inserts a new section 125A, which provides that, if a TPS officer is
given a document under Division 2 of Part 7, the officer may retain it for the
purposes of the ESOS Act, or for the purposes of an investigation to see if an
offence has been committed, or to enable evidence of the commission of an
offence to be secured for prosecution purposes. Such documents must not,
however, be retained for longer than 60 days after the officer was given the
document.
This is a corresponding provision to section 125, which entitles authorised
employees, or an employee or constituent member of that person‟s agency,
who has the authorised employee‟s permission, to retain documents.
Item 18 inserts a new subsection 126(1A), reflecting the existing subsection
126(1), as a consequence of the insertion of the new section 125A.
Item 25 inserts a new section 128A, which entitles a TPS officer given a
document under Division 2 of Part 7 to apply to a magistrate or tribunal
member to retain the document for a longer period than the 60 days permitted
under new section 125A. The new section corresponds with the existing
section 128.
Items 13, 15, and 19 to 24 make minor amendments to existing provisions of
Division 2 of Part 7 of the ESOS Act that are consequent on the amendments
made by item 8 etc.
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Schedule 5 Other amendments
Summary
Schedule 5 to the Bill contains measures designed to increase flexibility for
students and education providers with requirements associated with the TPS.
These measures will provide significant deregulatory savings for education
providers as well as more choice for students.
Currently, section 27 of the ESOS Act precludes registered providers
receiving more than 50 per cent of the tuition fees for a course that is longer
than 24 weeks before the student has begun the course. Amendments to the
section will enable providers to receive more than 50 per cent of the tuition
fees for a course if either the student (or the person paying the tuition fees on
their behalf, such as a sponsor) chooses to pay more than that, or the course
is no more than 25 weeks long. The ancillary requirement that any further
tuition fees must not be required by the provider until two weeks before the
second study period for the course will also be removed. These measures will
increase flexibility for students in terms of when they pay, and for providers in
managing their administrative and financial processes.
The existing requirement on every provider to make an agreement in writing,
with each overseas student, setting out the study periods for each enrolment
and the tuition fees payable for each study period (section 22) duplicates
similar requirements in the national code. The concept of a study period will
be removed from the ESOS Act, given it imposes an arbitrary and limiting
requirement that study periods be a maximum of 24 weeks in length. The
requirement to ensure transparency for students regarding their fees for a
course and the periods to which those fees relate will be retained in the
national code. However, there will not be a need for education providers to
limit periods of study to the requirements under the Act.
As part of the TPS arrangements introduced in 2012, non-exempt (private)
providers are required to maintain an account in which all tuition fees paid by
students prior to the course commencing must be kept until the student starts
the course. Removing this requirement will be of significant deregulatory
benefit to non-exempt providers, creating a more level playing field between
public and private providers and encouraging competition and innovation in
the sector.
A further measure in the Bill will remove unnecessarily stringent data reporting
obligations in situations where a student defaults. Section 47C of the ESOS
Act currently requires all registered providers to notify each instance of a
student default within five days, as well as to notify the Secretary and TPS
80
Director of the outcomes in respect of each default. Amendments will remove
the requirement on all providers to report instances of student default under
the current provisions; and will also remove the requirement to report on the
outcomes of the student default except where the provider has paid a refund
to the student under a legislative instrument made by the Minister (primarily
covering cases of visa refusal).
To ensure appropriate provider reporting on students, the time frame for
providers to give the Secretary other information about their students‟
circumstances (as set out in section 19 of the ESOS Act) will be extended
from 14 days to 31 days (except where a student who is less than 18 years
old has failed to start their study or has had their study terminated).
Detailed explanation
Part 1 - Amendments commencing on the day after Royal Assent
Education Services for Overseas Students Act 2000
Items 1, 4 and 5
Subsection 19(1) of the ESOS Act currently requires a registered provider to
give the Secretary certain information about accepted students within 14 days
after the occurrence of specified events. The effect of the amendments to
section 19 made by items 4 and 5 is to extend the period in which the
information needs to be given to the Secretary from 14 days to 31 days in
most circumstances (the circumstances set out in paragraph 19(1)(a), (b), (e)
and (f)). However, information about whether a student under the age of 18
years old has failed to begin their course or has terminated their studies must
still be given to the Secretary within 14 days of that event.
Item 1 inserts a definition of "applicable number of days" in section 5, referring
to new subsection 19(1A).
Item 5 inserts new subsection 19(1A) which defines the "applicable number of
days" for the purposes of subsection 19(1), as amended by item 4.
Items 2 and 6
Section 22 of the ESOS Act currently:
requires a registered provider to enter into a written agreement with each
of its students setting out the length of each study period for the course
being undertaken by the student, and the tuition fees for each study
period for that course; and
limits study periods to a maximum length of 24 weeks.
Item 6 repeals section 22 of the Act, as it is inflexible and redundant. Similar
requirements as are set out in section 22 exist in the national code made
under Part 4 of the Act. Under the national code, a provider must enter into a
81
written agreement with each student. The written agreement must provide,
among other things, an itemised list of course money payable by the student
to the provider. In addition, the national code contains a definition of study
period that differs from the requirements for study periods in section 22. The
requirement under section 22 of the ESOS Act is that a study period be less
than 24 weeks, a period of time that does not necessarily align with the
periods of study offered by the various types of education provider that offer
education services to overseas students. The result has been an unnecessary
and duplicative requirement that imposes a significant cost and administrative
burden on education providers.
The requirement under the national code relating to the disclosure of fees and
the periods to which those relate will be maintained to ensure appropriate
transparency and protection for students.
As a consequence of the repeal of section 22 by item 6, item 2 repeals the
definition of "study period" in section 5 of the ESOS Act.
Items 3, 7 and 8
Currently, section 27 of the ESOS Act imposes limits on the amount of tuition
fees a registered provider can receive from or on behalf of an overseas
student before the student begins his or her course. Unless the course is only
one study period long (i.e. a maximum of 24 weeks), a provider is unable to
accept more than 50 per cent of total tuition fees for the course prior to the
student commencing the course. In addition, a provider cannot request further
instalments of tuition fees from a student earlier than two weeks before their
next study period commences.
These limits on education providers receiving a student‟s tuition fees has
meant that students have been unable to pay more than half of their course‟s
tuition fees upfront, and pay subsequent instalments of tuition fees early, even
if they wanted to. The amendments to section 27 made by item 8 will enable
a student, or the person paying the tuition fees on their behalf, to pay more
than 50 per cent of the tuition fees before the student commences the course,
and remove the limit on when providers can request students pay instalments
of tuition fees. This increases flexibility for students while ensuring they are
not required to pay all tuition fees up front if they do not wish to do so.
In addition, a provider will be able to accept more than 50 per cent of the
tuition fees for a course if the duration of the course is 25 weeks or less.
Items 3 and 7 amend section 15A and repeal the heading to subsection 27(1)
as a consequence of the amendments made by item 8.
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Items 9, 13, 15 and 18
Item 9 repeals the following sections:
section 28 (obligation for registered providers to maintain account);
section 29 (obligations in relation to account money);
section 30 (regulations about tuition fees for courses before a student
has started a course and about accounts relating to tuition fees under
Division 2 of Part 3);
section 31 (exemption from requirements in sections 28 and 29 and in
regulations under section 30); and
section 32 (offences for contraventions of sections 28 or 29).
The current requirement for non-exempt providers to hold all tuition fees paid
before a student commences in a designated account imposes a significant
regulatory cost on private education providers, regardless of their level of risk.
Removing the requirement for a designated account will ensure fairer
competition between private and public providers of international education,
and enable them to invest the fees collected in improvements that will
enhance the quality and delivery of the course. It will also allow those
providers greater flexibility in managing their administration of the course.
While the designated account requirement was introduced to reduce risk to
the TPS, its removal is countered by only minimal changes to the 50 per cent
limit on the collection of tuition fees before a student commences a course.
Where providers are considered high risk, an ESOS agency can still impose
requirements to limit that financial risk as a condition of registration on the
registered provider at any time during its registration.
Items 13, 15 and 18 repeal notes in sections 46D, 47D and 50C that refer to
provisions repealed by item 9.
Items 10, 11 and 12
Section 38 of the Act sets out what the national code must or may contain
including, under paragraph 38(g), standards and procedures required of
registered providers in making agreements relating to refunds under
Division 2 of Part 5.
Item 12 amends paragraph 38(g) to omit reference to "relating to refunds
under Division 2 of Part 5" and replacing it with reference to "with overseas
students or intending overseas students". The change clearly authorises the
national code to provide for standards and procedures required of registered
providers in relation to making agreements with their students; the national
code is not limited to dealing with the narrow question of refunds of tuition
fees.
Items 10 and 11 amend sections 33A (Guide to Part 4) and 34 (Purpose of
the national code) respectively to reflect the change in scope and wording of
section 38 made by item 12.
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Items 14, 16 and 17
Currently, section 47C of the ESOS Act requires a registered provider to notify
the Secretary and TPS Director of every instance of student default (as
defined in section 47A) within five business days of the default occurring.
Under sections 47D and 47E of the Act a provider has four weeks after a
student default to meet its refund obligations to the student. Generally
speaking, section 47D applies in cases where the provider has a written
agreement with the student that deals with student default; section 47E
applies in other cases.
Under section 47H, a provider also has an obligation to give the Secretary
and TPS Director details of its compliance with section 47D or 47E, as the
case may be.
The notification requirements in sections 47C and 47H are burdensome and
duplicative. The requirement in section 47C to report each instance of student
default within five business days is too short to establish that there has been a
genuine student default. A combination of reporting to the Secretary under
section 19 of the Act, the requirements of the national code relating to the
content of agreements between providers and students, and the offences in
sections 47F and 47G render both section 47C and reporting of compliance
with section 47D under section 47H unnecessary.
The written agreement between a provider and student under the national
code must include information in relation to refunds of course money in cases
of student and provider default, as well as information that a student may take
action under Australia‟s consumer protection laws. The written agreement
provisions in the national code therefore protect students.
However, in situations where a student‟s visa is refused or where a provider
has not entered into a written agreement in accordance with the requirements
of the ESOS Act, these refunds must be paid consistent with the legislative
instrument made by the Minister under section 47E. To ensure providers
comply with the requirements of the legislative instrument, providers will
continue to be required to report that they have met their obligations to
students under section 47H to the ESOS agency and the TPS Director.
Accordingly, item 14 repeals section 47C. The removal of requirement for
student default reporting will significantly reduce the regulatory and cost
burden on all providers.
Item 16 repeals and substitutes subsection 47H(1). Under new sub-
section 47H(1), a registered provider will no longer be required to provide its
ESOS agency and the TPS Director with details of its compliance with its
refund obligations under section 47D (i.e. refund in accordance with its
agreement with a student). However, it must still give a notice that accords
with the requirements of section 47H if an overseas student, or an intending
overseas student, defaults in relation to a course the provider provides at a
84
location and there is a requirement under section 47E for the provider to give
a refund.
Item 17 deletes the redundant reference to section 47D from para-
graph 47H(3)(a), as a consequence of the amendment made by item 16.
Part 2 - Amendments commencing on 1 July 2016
Education Services for Overseas Students Act 2000
Items 19 to 24
These items address the discrepancy between the arrangements for the
payment of the TPS levy and those for the annual registration charge and the
entry to market charges.
Currently the TPS Director must issue a reminder notice to a registered
provider who has not paid an amount of the TPS levy by the end of the due
day (section 53D of the Act). There is no similar reminder notice mechanism
for payment of the annual registration charge or the entry to market charges.
Under the current section 90 of the Act, the consequence of any late payment
of these charges by a registered provider is in an automatic suspension of the
provider‟s registration.
The amendments to the Act made by items 19 to 24 will empower the
Secretary to issue a reminder notice to a provider who has not paid an annual
registration charge or entry to market charge on time. A provider‟s registration
will only be suspended under section 90 of the Act if it then fails to comply
with such a notice.
For consistency, the amendments made by items 19 to 24 commence on
1 July 2016, the same time as the majority of other amendments contained in
the Bill, including amendments to other enforcement provisions in Schedule 1
to the Bill.
Item 22 inserts new subsections 23(2) and (3). New subsection 23(2)
provides that if a registered provider does not comply with subsection 23(1)
(i.e. does not pay its annual registration charge on time), the Secretary must
give the provider a written notice:
specifying the amount of annual registration charge payable;
stating that the provider must pay the charge and late payment penalty
within seven days after the notice is given to the provider; and
setting out the effect of section 90.
A note to new subsection 23(2) explains that, under section 90, a provider‟s
registration is automatically suspended if it fails to comply with the notice.
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New subsection 23(3) requires the Secretary to notify the ESOS agency for
the provider if the provider fails to comply with a notice (unless the Secretary
is the ESOS agency for the provider).
Item 23 repeals and substitutes section 23A (second and third entry to market
charges).
New subsections 23A(1) and (2) provide that registered providers required to
pay a second or third entry to market charge must pay the charge by the end
of the day referred to in subsections 6(5) and (7) of the Education Services for
Overseas Students (Registration Charges) Act 1997 respectively. Note that
the references to section 6 of the Education Services for Overseas Students
(Registration Charges) Act 1997 reflect amendments to that section in the
Education Services for Overseas Students (Registration Charges)
Amendment (Streamlining Regulation) Bill 2015.
New subsection 23A(3) provides that if a registered provider does not comply
with the subsection 23A(1) or (2) requirements, the Secretary must give the
provider a written notice:
specifying the amount payable;
stating that the provider must pay the charge and late payment penalty
within seven days after the notice is given to the provider; and
setting out the effect of section 90.
A note to new subsection 23A(3) explains that, under section 90, a provider‟s
registration is automatically suspended if it fails to comply with the notice.
New subsection 23A(4) requires the Secretary to notify the ESOS agency for
the provider if the provider fails to comply with a notice (unless the Secretary
is the ESOS agency for the provider).
Item 24 repeals and replaces paragraphs 90(1)(b) and (c) of the Act with a
new paragraph (1)(b), the effect of which is that a provider‟s registration is
automatically suspended if it fails to comply with a notice issued to it under
section 23 or 23A (as opposed to merely fails to pay the applicable charge on
time).
Items 19, 20 and 21 make minor amendments to section 23 and its notes
consequential on the amendment made by item 22.
86
Application,
Schedule 6 transitional and
savings provisions
Summary
Schedule 6 sets out application, transitional and savings provisions for the
purposes of the Bill.
Detailed explanation
Item 1
This item inserts the following definitions for the purposes of this Schedule:
"commencement" means the commencement of item 2 of this
Schedule (i.e. 1 July 2016); and
"ESOS Act" means the Education Services for Overseas Students Act
2000.
Item 2
Item 2 provides for the continuation of certain existing registrations in force
under the ESOS Act immediately before commencement.
Subitems 2(1) to (3) provide that a registered provider‟s existing registration
continues in effect, and may be dealt with, after commencement, as if the
provider were registered under the ESOS Act as amended by the Bill. The
purpose of the provisions is to maintain the status quo for existing
registrations, but ensure they are subject to the new and amended provisions
of the Act. If the provider‟s registration was subject to conditions prior to
commencement, it remains subject to those same conditions (which are
treated as conditions imposed under new section 10B), and the conditions
continue and can be varied or removed in accordance with the Act as
amended by the Bill.
Subitem 2(4) deals with the situation that a provider‟s registration is in force
immediately before commencement, because it has been extended beyond its
normal period by operation of subsection 9AC(5) of the ESOS Act. In these
circumstances, the provider may apply to renew their registration within 60
days of commencement under new section 10D of the ESOS Act. Note that if
a provider makes an application to renew its registration under new section
10D, new section 10F will also operate to extend the existing registration until
the renewal decision is made.
87
If a provider subject to subsection 9AC(5) immediately before commencement
does not apply to renew their registration within 60 days of commencement,
their registration will cease.
Subitems 2(5) to (7) deal with the situation where a provider‟s registration is in
force immediately before commencement, because it has been extended
beyond its normal period by operation of subsection 9AC(6) of the ESOS Act
(the so-called "teach out" provision). The purpose of these provisions is to
permit such providers to continue providing their courses to their existing
students for a period, consistent with the operation of the new "teach out"
provision, section 10M.
If the provider is not a school provider, the provider‟s registration for a course
continues in force until it finishes providing the course to students who are
enrolled in the course, and who had started the course before
commencement.
If the provider is a school provider, the provider‟s registration for a course
continues in force until the end of 31 December 2016.
However, in either case, the provider is not able to recruit or enrol students for
the course after commencement.
Item 3
Item 3 provides that, where a provider‟s registration is suspended under
section 89A of the ESOS Act immediately before commencement, and the
provider hasn‟t been given a notice removing the suspension upon payment
of a reinstatement fee at that time, the registration remains suspended.
Since section 89A of the Act is repealed on commencement (see item 107 of
Schedule 1), the suspension is then dealt with under the Act as amended by
the Bill as if it were a suspension under the new section 89.
Item 4
Item 4 provides that, where a provider‟s registration is suspended under
section 89A of the ESOS Act immediately before commencement, and the
provider has been given a notice removing the suspension upon payment of a
reinstatement fee at that time, the registration remains suspended and the
suspension and notice continue to be dealt with under the Act as in force
before commencement. That is, in accordance with subsection 89A(3), the
suspension is removed if the provider pays the requisite reinstatement fee.
Item 5
Item 5 saves the operation of "show cause" notices issued under section 93 of
the Act. A notice given under subsection 93(1) of the ESOS Act which has not
lapsed as of commencement continues to have effect as if:
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the notice had been given by the ESOS agency for the registered
provider under new section 93 of the ESOS Act;
if the notice related to a decision to impose a condition on the
provider‟s registration under subsection 9AD(2) or 9AE(1) of the ESOS
Act, the notice related to a decision to impose a condition on the
provider‟s registration under new section 10B of the Act; or
if the notice related to a decision not to give the registered provider a
notice under subsection 89A(2) of the ESOS Act, the notice related to a
decision not to give the registered provider a notice under new
subsection 89(4) of the Act.
Item 6
Item 6 preserves the right in section 176 of the ESOS Act to apply to the AAT
for a review of a decision mentioned in that section that was made before
commencement, providing an application has not been made and the time
period for making an application has not ended. In these circumstances,
section 176, as in force immediately before commencement, continues to
apply in relation to the decision.
Item 7
This item clarifies that the amendments made to section 19 of the ESOS Act
by items 4 and 5 of Schedule 5 to the Bill apply to events occurring before or
after the day those items commence (i.e. the day after Royal Assent).
Item 8
This item clarified that the amendments made to section 19 of the ESOS Act
by items 52 and 53 of Schedule 1 to the Bill apply to events occurring before
or after commencement (i.e. 1 July 2016).
Item 9
This item clarifies that new subsections 23(2) and (3) of the ESOS Act, as
inserted by item 22 of Schedule 5 to the Bill, apply in relation to a registered
provider who does not comply with subsection 23(1) of the Act after
commencement.
Item 10
This item provides that new subsection 83(1) of the ESOS Act, as inserted by
item 85 of Schedule 1 to the Bill, will apply in relation to the following
breaches:
a breach of the ESOS Act, the national code or a condition of a
registered provider‟s registration that occurs before or after
commencement; and
a breach of the ELICOS Standards or Foundation Program Standards
that occurs after commencement.
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Item 11
This item provides that new section 87 of the ESOS Act, as inserted by item
106 of Schedule 1 to the Bill, applies in relation to the following breaches:
a possible breach of the national code, ELICOS Standards or
Foundation Program Standards that occurs before or after
commencement; and
a possible breach of the ESOS Act that occurs after commencement.
Item 12
This item clarifies that amendments of section 170A of the ESOS Act made by
items 265 to 271 of Schedule 1 to this Act will apply in relation to action taken
under Division 2 of Part 6 of that Act if the action is taken after
commencement.
Item 13
Subitem 13(1) provides that the Minister may, by legislative instrument, make
rules prescribing matters of a transitional nature relating to the amendments
or repeals made by the Bill.
Subitems 13(2) and (3) provide that the Bill does not limit the rules that can be
made by the Minister, except that the rules may not do any of the following:
create an offence or civil penalty provision;
provide powers of arrest or detention, or powers relating to entry,
search or seizure;
impose a tax;
set an amount to be appropriated from the Consolidated Revenue
Fund under an appropriation in the Bill; and
directly amend the text of the Bill.
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Regulation Impact
Attachment A Statement