Contents
- Division 1 Preliminary
- 1 Short title
- 2 Commencement
- 3 Crown to be bound
- 4 Criminal Code applies
- 4A Objects
- 4B Extension of this Act to Norfolk Island, Christmas Island and Cocos (Keeling) Islands
- 5 Definitions
- 5AA Definition of course
- 5A When registered higher education providers are taken to have the principal purpose of providing education
- 6 Meaning of associate
- 6A Meaning of authorised officer
- 6B Meaning of DSA assessment certificate and DSA recommendation certificate
- 6BA Meaning of education agent
- 6BB Meaning of education agent commission
- 6C Meaning of ESOS agency
- 6D Meaning of exempt provider
- 6E Meaning of provider
- 7 Meaning of tuition fees
- 7A Deciding whether a provider or registered provider is fit and proper to be registered etc.
- 7AA No duty imposed on designated State authorities
- 7AB Application to former registered providers
- Division 2 Guide to this Act
Division 1 · Preliminary
2Commencement#
(1)This section and section 1 commence on the day on which this Act receives the Royal Assent.
(2)The remaining provisions of this Act commence on a day or days to be fixed by Proclamation.
3Crown to be bound#
(1)This Act binds the Crown in each of its capacities.
(2)However, nothing in this Act makes the Crown in any capacity liable to be prosecuted for an offence.
4AObjects#
The principal objects of this Act are:
(a)to provide tuition assurance, and refunds, for overseas students for courses for which they have paid; and
(b)to protect and enhance Australia’s reputation for quality education and training services; and
(c)to complement Australia’s migration laws by ensuring providers collect and report information relevant to the administration of the law relating to student visas.
4BExtension of this Act to Norfolk Island, Christmas Island and Cocos (Keeling) Islands#
(1)Subject to subsection (2), this Act applies in relation to Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands as if:
(b)a reference in a provision of this Act to the designated State authority included a reference to the Territories Minister.
(2)Paragraph (1)(a) does not apply in relation to the following provisions:
(a)the definitions of designated State authority and State in section 5;
(b)paragraph 6D(1)(a);
(c)paragraph 31(a);
(f)paragraph 127(3)(b);
(g)paragraph 152(3)(b);
(h)paragraph 175(1)(e).
(3)The Territories Minister may, by signed writing, delegate all or any of his or her functions or powers as a designated State authority under this Act to:
(a)an APS employee who is an SES employee or acting SES employee; or
(b)an officer or employee of a State.
5Definitions#
In this Act, unless the contrary intention appears:
accepted student of a registered provider means a student (whether within or outside Australia):
(b)who is, or will be, required to hold a student visa to undertake or continue the course.
affected provider for a reviewable decision has the meaning given by section 169AB.
agreed starting day for a course means the day on which the course was scheduled to start, or a later day agreed between the registered provider for the course and the student.
applicable number of days has the meaning given by subsection 19(1A).
approved school provider means a school provider approved (however described) by a designated State authority to provide courses to:
(a)if the school provider is located in Tasmania or the Australian Capital Territory—students for that State or Territory; or
(b)otherwise—overseas students for the State (other than Tasmania or the Australian Capital Territory).
ART member means a member of the Administrative Review Tribunal.
attendance notice means a notice given under section 116.
Australian Qualifications Framework has the same meaning as in the Higher Education Support Act 2003.
Board member means a member of the Board appointed under section 55D, including the Chair and the Deputy Chair.
compliance audit has the meaning given by section 112A.
course has the meaning given by section 5AA.
CRICOS annual registration charge means CRICOS annual registration charge imposed by the Education Services for Overseas Students (Registration Charges) Act 1997.
(a)in relation to a registered provider—has the meaning given by section 46A; and
(b)in relation to an overseas student or intending overseas student—has the meaning given by section 47A.
default day, in relation to a default, means:
(a)if subparagraph 46A(1)(a)(i) or paragraph 47A(1)(a) applies—the agreed starting day; or
(b)if subparagraph 46A(1)(a)(ii) applies—the day on which the course ceases to be provided; or
(c)if paragraph 47A(1)(b) applies—the day on which the student withdraws from the course; or
(d)if paragraph 47A(1)(c) applies—the day on which the registered provider of the course refuses to provide, or continue providing, the course to the student.
DSA assessment certificate has the meaning given by subsection 6B(1).
DSA recommendation certificate has the meaning given by subsection 6B(2).
education agent has the meaning given by section 6BA.
education agent commission has the meaning given by section 6BB.
ELICOS Standards has the meaning given by section 176B.
ESOS agency for a provider or registered provider has the meaning given by section 6C.
exempt provider has the meaning given by section 6D.
Foundation Program Standards has the meaning given by section 176C.
high managerial agent of a provider means an employee, agent or officer of the provider with duties of such responsibility that his or her conduct may fairly be assumed to represent the provider in relation to the business of providing courses.
Immigration Minister means any of the Ministers who administer the Migration Act 1958 from time to time.
Immigration Minister’s suspension certificate means a certificate given under Division 2 of Part 6.
Immigration Secretary means the Secretary of the Department administered by the Immigration Minister.
intending overseas student means a person (whether within or outside Australia) who intends to become, or who has taken any steps towards becoming, an overseas student.
internal reviewer means:
(a)the ESOS agency for an affected provider; or
(b)a delegate referred to in paragraph 169AE(1)(b).
late payment penalty means the penalty imposed by section 172.
meets the registration requirements has the meaning giving by section 11.
monitoring purpose means a purpose of determining:
(a)whether a registered provider is complying, or has complied, with:
(i)this Act; or
(ii)the national code; or
(iii)if the ELICOS Standards or Foundation Program Standards apply in relation to the provider—those Standards; or
national code means the National Code of Practice for Providers of Education and Training to Overseas Students in force under Part 4.
National VET Regulator has the same meaning as in the National Vocational Education and Training Regulator Act 2011.
NVETR Act means the National Vocational Education and Training Regulator Act 2011.
NVR registered training organisation has the same meaning as in the NVETR Act.
old ESOS Act means the Education Services for Overseas Students (Registration of Providers and Financial Regulation) Act 1991.
overseas student means a person (whether within or outside Australia) who holds a student visa, but does not include students of a kind prescribed in the regulations.
Overseas Students Tuition Fund means the Overseas Students Tuition Fund established under section 52A.
premises means:
(a)an area of land or any other place, whether or not it is enclosed or built on; or
(b)a building or other structure; or
(c)a vehicle or vessel;
and includes a part of any such premises.
principal executive officer of a provider that is not an individual means the person who has executive responsibility for the operation of the provider.
processing activity means:
(a)performance of a function or exercise of a power under or for the purposes of this Act; or
(b)an act connected with performing functions or exercising powers under or for the purposes of this Act.
production notice means a notice given under section 113 or 113A.
provider has the meaning given by section 6E.
provider obligation period, in relation to a default, has the meaning given by section 46D, 47D or 47E (as the case requires).
registered means registered under Part 2.
Note: Other grammatical forms of the word registered (such as registration) have a corresponding meaning (see section 18A of the Acts Interpretation Act 1901).
registered higher education provider has the same meaning as in the TEQSA Act.
registered provider for a course for a location means a provider that is registered to provide the course at the location.
registered TAFE provider means a registered provider providing technical and further education.
registered training organisation has the same meaning as in the NVETR Act.
registered VET provider means:
(a)an NVR registered training organisation; or
(b)a registered training organisation (other than an NVR registered training organisation) that provides, or seeks to provide, courses to overseas students at locations in a non-referring State.
Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.
reinstatement fee means the fee referred to in section 171.
relevant individual of a registered provider means:
(a)an officer or employee of the provider; or
(b)a consultant to the provider; or
(c)if the provider is a partnership—a partner in the partnership; or
(e)an officer or employee of an administrator, liquidator or restructuring practitioner (within the meaning of the Corporations Act 2001) of the provider or a former registered provider.
resident means:
(a)in the case of a company, a company incorporated in Australia that carries on business in Australia and that has its central management and control in Australia; or
(b)in the case of an unincorporated body, a body that carries on business in Australia and that has its central management and control in Australia.
reviewable decision has the meaning given by section 169AB.
school provider means a person or entity that provides courses of education at a level that, under section 15 of the Australian Education Act 2013, constitutes primary education, or secondary education, for the provider.
schools initial registration charge means schools initial registration charge imposed by the Education Services for Overseas Students (Registration Charges) Act 1997.
schools renewal registration charge means schools renewal registration charge imposed by the Education Services for Overseas Students (Registration Charges) Act 1997.
State includes the Australian Capital Territory and the Northern Territory.
student visa has the meaning given by the regulations.
study period means a period of study within a course that meets the requirements (if any) set out in the national code.
Note: Examples of study periods include terms and semesters.
TEQSA Act means the Tertiary Education Quality and Standards Agency Act 2011.
Territories Minister means the Minister responsible for administering the Christmas Island Act 1958.
this Act includes the regulations.
TPS officer means:
(a)an APS employee in the Department who assists the TPS Director in the performance of the TPS Director’s functions; or
(b)a consultant engaged by the TPS Director under section 54L.
tuition fees has the meaning given by section 7.
5AADefinition of course#
(a)the course leads to a qualification recognised in the Australian Qualifications Framework;
(c)the course is a Foundation Program;
(e)the course is offered by a registered higher education provider;
5AWhen registered higher education providers are taken to have the principal purpose of providing education#
For the purposes of paragraphs 11(1)(d) and 83(1C)(a), a registered higher education provider is taken to have the principal purpose of providing education if its principal purpose is either or both of the following:
(a)providing education;
(b)conducting research.
6Meaning of associate#
(1)In this Act:
(a)the spouse or de facto partner of the person; or
(d)a sibling of the person; or
(e)if the person is a company:
(i)an officer of the company; or
(ii)an officer of a company that is related to the first-mentioned company; or
(iii)a person who holds a substantial ownership interest in the company; or
(f)if the person is an association or a co-operative—the principal executive officer or a member of the body (however described) that governs, manages, or conducts the affairs of the association or co-operative; or
(g)if the person is a body corporate established for a public purpose by or under an Australian law and another body is responsible for the management or the conduct of the affairs of the body corporate—the principal executive officer or a member of that other body; or
(h)if the person is any other kind of body corporate established for a public purpose by or under an Australian law—the principal executive officer or a member of the body corporate; or
(i)if the person is a partnership:
(i)the principal executive officer or an individual, or a body corporate, that is a member of the partnership; or
(ii)an individual who is an officer of a company, or a member of any other body corporate, that is a member of the partnership.
Related companies
(2)For the purposes of subsection (1), the question of whether companies are related to each other is to be determined in the same manner as the question of whether bodies corporate (within the meaning of the Corporations Act 2001) are related to each other is determined under section 50 of the Corporations Act 2001.
Substantial ownership interest
Interests in shares
(4)For the purposes of subsection (3):
(b)without limiting the generality of paragraph (a), a person holds an interest in a share if the person, although not the registered holder of the share, is entitled to exercise, or control the exercise of, a right attached to the share, otherwise than because the person has been appointed as a proxy or representative to vote at a meeting of members of a company or of a class of its members.
Mutual associates
Chains of associates
(6)If, under this section:
Other definitions
(7)In this section:
de facto partner of a person has the meaning given by the Acts Interpretation Act 1901.
Certain family relationships
(8)For the purposes of paragraph (d) of the definition of associate in subsection (1), if one person is the child of another person because of the definition of child in this section, relationships traced to or through the person are to be determined on the basis that the person is the child of the other person.
6AMeaning of authorised officer#
(1)The following table sets out who is an authorised officer of the ESOS agency for a registered provider:
| Authorised officer | ||
|---|---|---|
| Item | If the ESOS agency for a registered provider is: | a person is an authorised officer of the agency if: |
| 1 | TEQSA | the person is:(a) a Commissioner (within the meaning of the TEQSA Act); or(b) the Chief Executive Officer of TEQSA; or(c) an authorised officer (within the meaning of that Act) |
| 2 | the National VET Regulator | the person is:(a) the National VET Regulator; or(b) an authorised officer (within the meaning of the NVETR Act) |
| 3 | the Secretary | the person is appointed under subsection (2) |
| 4 | an entity that is not covered by another item of this table | the person is appointed under subsection (3) |
(2)If the ESOS agency for a registered provider is the Secretary, the agency may, in writing, appoint a person as an authorised officer of the agency if:
(a)the person is an APS employee in the Department; and
(b)the person holds or performs the duties of an APS 5 position or higher, or an equivalent position; and
(c)the agency is satisfied that the person has suitable qualifications and experience.
(3)If the ESOS agency for a registered provider is an entity that is covered by item 4 of the table in subsection (1), the agency may, in writing, appoint a person as an authorised officer of the agency if:
(a)the person is an employee or constituent member of the agency; and
(b)the agency is satisfied that the person has suitable qualifications and experience.
6BMeaning of DSA assessment certificate and DSA recommendation certificate#
DSA assessment certificate
(1)A DSA assessment certificate is a certificate given by the designated State authority for an approved school provider that:
(a)states that the authority is satisfied that the provider is complying, or will comply, with:
(i)this Act; and
(ii)the national code; and
(iii)if the ELICOS Standards or Foundation Program Standards apply in relation to the provider—those Standards; and
(b)if the provider is not an exempt provider—states that the authority is satisfied that the provider is fit and proper to be registered; and
(c)states that the authority is satisfied that the provider has the principal purpose of providing education; and
(d)states that the authority has no reason to believe that:
(e)recommends the conditions (if any) that should be imposed on the provider’s registration; and
(f)recommends a period not longer than 7 years for which the provider should be registered; and
(g)sets out any other matters prescribed by the regulations.
Note: 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.
DSA recommendation certificate
(2)A DSA recommendation certificate is a certificate given by the designated State authority for an approved school provider that:
(a)recommends that the ESOS agency for the provider should add one or more courses at one or more locations to the provider’s registration; and
(b)recommends the conditions (if any) that should be imposed on the provider’s registration; and
(c)sets out any other matters prescribed by the regulations.
Form of certificates
(3)A DSA assessment certificate or DSA recommendation certificate must be in the form approved, in writing, by the ESOS agency for the approved school provider to which the certificate relates.
6BAMeaning of education agent#
An education agent is an entity (whether within or outside Australia) that:
(a)engages in any one or more of the following activities in relation to a provider:
(i)the recruitment of overseas students, or intending overseas students;
(ii)providing information, advice or assistance to overseas students, or intending overseas students, in relation to enrolment;
(iii)otherwise dealing with overseas students, or intending overseas students; and
(b)is not a permanent full-time or part-time officer or employee of the provider.
6BBMeaning of education agent commission#
Education agent commission means any consideration or benefit, whether monetary or non-monetary, that:
(a)is or will be given, by, or on behalf of, a provider to an education agent, or an associate of the education agent; and
(b)is in connection with:
(i)the recruitment of an overseas student or an intending overseas student; or
(ii)any other activity in relation to an overseas student or an intending overseas student mentioned in paragraph (a) of the definition of education agent in section 6BA.
Note: Examples of such consideration or benefits include fees, charges, commissions, bonuses, performance payments, gifts, discounted or free services, rewards and incentives.
6CMeaning of ESOS agency#
(1)Subject to subsections (3) and (4), the following table sets out the ESOS agency for a provider or registered provider:
| ESOS agency | ||
|---|---|---|
| Item | To the extent that a provider or registered provider is: | the ESOS agency for the provider or registered provider is: |
| 1 | a registered higher education provider | TEQSA |
| 2 | a registered VET provider | the National VET Regulator |
| 3 | an approved school provider | the Secretary |
| 4 | a person or entity that provides an ELICOS or a Foundation Program | the entity determined under subsection (2) |
| 5 | a provider or registered provider that is not covered by another item of this table | the entity determined under subsection (2) |
(2)The Minister may, by legislative instrument, determine that an entity is the ESOS agency for a provider or registered provider covered by item 4 or 5 of the table in subsection (1).
(3)If a provider or registered provider is covered by more than one item of the table in subsection (1), the Minister may, by legislative instrument:
(a)determine that one or more entities are the ESOS agencies for the provider; and
(b)specify the circumstances in which each of those entities is the ESOS agency for the provider.
(4)If subparagraph 83(2A)(d)(i) or (2B)(d)(i) or paragraph 83(2C)(c) applies in relation to a registered provider, disregard that subparagraph or paragraph in determining the ESOS agency for the provider for the purposes of subsection 83(2A), (2B) or (2C).
6DMeaning of exempt provider#
(1)A provider or registered provider is an exempt provider if:
(b)the provider:
(i)is entitled to receive funds under a law of the Commonwealth for recurrent expenditure for the provision of education or training; and
(ii)is not a provider prescribed by the regulations for the purposes of this subparagraph; or
(c)the provider is specified in the regulations.
6EMeaning of provider#
(1)A provider is:
(a)a registered higher education provider; or
(b)a registered VET provider; or
(c)an approved school provider; or
(2)The Minister may, by legislative instrument, specify a person or entity for the purposes of paragraph (1)(e).
7Meaning of tuition fees#
In this Act:
(a)means fees a provider receives, directly or indirectly, from:
(i)an overseas student or intending overseas student; or
(ii)another person who pays the fees on behalf of an overseas student or intending overseas student;
(b)without limiting paragraph (a), includes any classes of fees prescribed by the regulations for the purposes of this paragraph; and
(c)without limiting paragraph (a), excludes any classes of fees prescribed by the regulations for the purposes of this paragraph.
7ADeciding whether a provider or registered provider is fit and proper to be registered etc.#
(1)This section applies if it is necessary for the purposes of a provision of this Act for:
(a)the ESOS agency for a provider or registered provider to decide whether:
(i)the agency is satisfied, or no longer satisfied, that the provider is fit and proper to be registered; or
(ii)the agency believes on reasonable grounds that the provider is not fit and proper to be registered; or
(b)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.
(2)In deciding the matter, the ESOS agency or designated State authority must have regard to:
(aa)whether the provider or a related person of the provider is being investigated for an offence covered by subsection (2AA); and
(a)whether the provider or a related person of the provider has ever been convicted of an offence; and
(b)whether the registration of the provider or a related person of the provider has ever been cancelled or suspended under this Act or the old ESOS Act; and
(c)whether the provider or a related person of the provider has ever been issued with an Immigration Minister’s suspension certificate; and
(d)whether a condition has ever been imposed under this Act on the registration of the provider or a related person of the provider; and
(e)whether the provider or a related person of the provider has ever:
(i)become bankrupt; or
(ii)taken steps to take the benefit of any law for the relief of bankrupt or insolvent debtors; or
(f)whether the provider or a related person of the provider has ever been disqualified from managing corporations under Part 2D.6 of the Corporations Act 2001; and
(g)whether the provider or a related person of the provider was involved in the business of the provision of courses by another provider who is covered by any of the above paragraphs at the time of any of the events that gave rise to the relevant conviction or other action; and
(gaa)whether the provider, or an associate of the provider, has any ownership or control (whether direct or indirect) of an education agent, and if so, the value or extent of the ownership or control; and
(gab)whether an education agent, or an associate of the education agent, has any ownership or control (whether direct or indirect) of the provider, and if so, the value or extent of the ownership or control; and
(ga)the matters (if any) specified by the Minister in an instrument under subsection (2A); and
(h)any other relevant matter.
(2AA)For the purposes of paragraph (2)(aa), the offences covered by this subsection are the following:
(a)an offence under this Act;
(b)an offence under Division 270 or 271 of the Criminal Code;
(c)an offence under section 590 of the Corporations Act 2001;
(d)an offence specified in a legislative instrument made by the Minister for the purposes of this paragraph.
(2A)The Minister may, by legislative instrument, make a determination specifying matters for the purposes of paragraph (2)(ga).
(3)A related person of a provider or registered provider is:
(b)a high managerial agent of the provider.
(4)Nothing in subsection (2) affects the operation of Part VIIC of the Crimes Act 1914 (which deals with spent convictions).
(5)If:
(a)the Minister determines that an entity is an ESOS agency for a provider or a registered provider under subsection 6C(2) or (3); and
(b)the entity is not a Commonwealth authority (within the meaning of section 85ZL of the Crimes Act 1914);
the entity is taken to be a Commonwealth authority for the purposes of Part VIIC of the Crimes Act 1914.
7AANo duty imposed on designated State authorities#
Nothing in this Act imposes a duty on a designated State authority.
7ABApplication to former registered providers#
(1)This Act continues to apply in relation to a person or entity that was a registered provider as if the person or entity were still a registered provider.
(2)Subsection (1) applies:
(a)for the purposes of dealing with or resolving any matter that arose during, or that relates to, the period when the person or entity was a registered provider; and
(b)without limiting paragraph (a)—for the purposes of dealing with or resolving any matter that relates to:
(i)tuition fees or other money received by the person or entity, or money owed by the person or entity, in accordance with this Act (whether or not the money is received, or the debt arises, while the person or entity is a registered provider); or
(ii)a default (whether or not the default occurs while the person or entity is a registered provider).
Sourced from the Federal Register of Legislation at legislation.gov.au, © Commonwealth of Australia, licensed under CC BY 4.0. Compilations may have been reformatted.