Part 2, Division 3 · Education Services for Overseas Students Act 2000

Contents

Division 3 · Registration of providers

Subdivision A · Application for registration

9Provider may apply to be registered#

(1)Subject to section 14E, a provider may apply to be registered to provide a course or courses at a location or locations to overseas students.

Note: Under section 14E, the Minister may determine that no applications for registration may be made until after a specified day.

(2)The application must be made to the ESOS agency for the provider.

Note: See section 11A for further rules about applications.

10ESOS agency for provider may register provider#

(1)If a provider makes an application under section 9, the ESOS agency for the provider may register the provider to provide a course or courses at a location or locations if the provider meets the registration requirements.

Note: The Minister may determine that the ESOS agency for a provider is not required to, or must not, deal with applications for registration for a period (see section 14C).

(2)The ESOS agency for the provider must use a risk management approach when considering whether to register the provider.

10ANotice of registration#

(1)If:

(a)a provider makes an application under section 9; and

(b)the ESOS agency for the provider decides to register the provider;

the agency must, as soon as practicable after making the decision, give the provider written notice of the registration.

(2)The notice must set out:

(a)the name of the provider; and

(b)if the provider is not an individual—the name of the principal executive officer of the provider; and

(c)the name of the course or courses that the provider is registered to provide; and

(d)the location or locations at which the provider is registered to provide that course or those courses; and

(e)the period of registration (which must not be longer than 7 years); and

(f)any conditions imposed on the provider’s registration under section 10B at the time of registration and when any such conditions take effect; and

(g)any other matters relating to the registration that the ESOS agency for the provider considers appropriate.

(3)If the provider is an approved school provider, the ESOS agency for the provider must, in determining the provider’s period of registration, have regard to the period of registration recommended in the DSA assessment certificate given to the agency by the designated State authority for the provider.

Subdivision B · Conditions of registration

10BConditions of registration#

(1)The ESOS agency for a provider or registered provider may at any time:

(a)impose a condition on the provider’s registration; or

(b)vary or remove a condition of the provider’s registration.

(2)The ESOS agency for the provider or registered provider must use a risk management approach in deciding whether to impose, vary or remove a condition.

(3)A condition may be:

(a)imposed generally on a provider’s registration; or

(b)imposed in respect of either or both of the following:

(i)one or more of the courses that a provider is registered to provide;

(ii)one or more of the locations at which a provider is registered to provide a course.

(4)If the ESOS agency for a registered provider does either of the following after the commencement of the provider’s registration:

(a)imposes a condition on the provider’s registration;

(b)varies or removes a condition of the provider’s registration;

the agency must include in the notice of the decision given to the provider under section 169AC a statement about when the imposition, variation or removal takes effect.

Note: Section 169AC requires the ESOS agency to give notice of certain decisions.

10CConditions imposed by designated State authorities on the approval of school providers after registration#

(1)If:

(a)a registered provider for a course for a location is an approved school provider; and

(b)at any time while the provider is registered, the designated State authority for the provider imposes a condition on the authority’s approval of the provider that relates to the provision of the course;

the ESOS agency for the provider may impose that condition on the provider’s registration under section 10B.

(2)In deciding whether to impose the condition under section 10B, the ESOS agency for the registered provider must have regard to any advice of the designated State authority for the provider.

(3)This section does not limit section 10B.

Subdivision C · Renewal of registration

10DRegistered provider may apply to renew registration#

(1)A registered provider may apply to renew the provider’s registration to provide a course or courses at a location or locations to overseas students.

(2)The application must be:

(a)made to the ESOS agency for the registered provider; and

(b)made within the period determined under subsection (3).

Note: See section 11A for further rules about applications.

(3)The ESOS agency for a registered provider may, by legislative instrument, determine the period within which applications under this section must be made.

10EESOS agency for registered provider may renew registration#

(1)If a registered provider makes an application under 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 if the provider meets the registration requirements.

(2)The ESOS agency for the registered provider must use a risk management approach when considering whether to renew the registration of the provider.

10FRegistration continues until decision on renewal takes effect#

If:

(a)a registered provider makes an application under section 10D; and

(b)the ESOS agency for the provider has not made a decision on the application before the end of the day on which the provider’s registration is due to expire;

the provider’s registration continues until the agency’s decision on the application is stated to take effect.

10GNotice of renewal of registration#

(1)If:

(a)a registered provider makes an application under section 10D; and

(b)the ESOS agency for the provider decides to renew the provider’s registration;

the agency must, as soon as practicable after making the decision, give the provider written notice of the renewal.

(2)The notice must set out:

(a)the name of the registered provider; and

(b)if the provider is not an individual—the name of the principal executive officer of the provider; and

(c)the name of the course or courses that the provider is registered to provide; and

(d)the location or locations at which the provider is registered to provide that course or those courses; and

(e)the period of registration (which must not be longer than 7 years); and

(f)any conditions imposed on the provider’s registration under section 10B at the time of the renewal of the registration and when any such conditions take effect; and

(g)any other matters relating to the renewal of the registration that the ESOS agency for the provider considers appropriate.

(3)If the registered provider is an approved school provider, the ESOS agency for the provider must, in determining the provider’s period of registration, have regard to the period of registration recommended in the DSA assessment certificate given to the agency by the designated State authority for the provider.

Subdivision D · Changes to registration etc.

10HRegistered provider may apply to add one or more courses at one or more locations to registration#

(1)Subject to section 14F, a registered provider may apply to add one or more courses at one or more locations to the provider’s registration.

Note: Under section 14F, the Minister may determine that no applications to add one or more courses at one or more locations may be made until after a specified day.

(2)The application:

(a)must be made to the ESOS agency for the registered provider; and

(b)if the provider is an approved school provider—must be accompanied by a DSA recommendation certificate given by the designated State authority for the provider.

Note: See section 11A for further rules about applications.

10JESOS agency for registered provider may add one or more courses at one or more locations to registration#

(1)If a registered provider makes an application under section 10H to add one or more courses at one or more locations to the provider’s registration, the ESOS agency for the provider may add those courses at those locations to the provider’s registration if the provider meets the registration requirements.

Note: The Minister may determine that the ESOS agency for a provider is not required to, or must not, deal with applications to add one or more courses at one or more locations for a period (see section 14D).

(2)The ESOS agency for the registered provider must use a risk management approach when considering whether to add one or more courses at one or more locations to the provider’s registration.

(3)If the ESOS agency for the registered provider decides to add one or more courses at one or more locations to the provider’s registration, the addition does not affect the provider’s period of registration.

10KNotice of addition of one or more courses at one or more locations to registration#

(1)If:

(a)a registered provider makes an application under section 10H; and

(b)the ESOS agency for the provider decides to add one or more courses at one or more locations to the provider’s registration;

the agency must, as soon as practicable after making the decision, give the provider written notice of the decision.

(2)The notice must set out:

(a)the name of the additional course or courses that the provider is registered to provide; and

(b)the additional location or locations at which the provider is registered to provide that course or those courses; and

(c)any conditions imposed on the provider’s registration under section 10B at the time of the decision and when any such conditions take effect; and

(d)any other matters relating to the decision that the ESOS agency for the provider considers appropriate.

10LExtension of a registered provider’s period of registration#

(1)The ESOS agency for a registered provider that is a registered higher education provider may extend the provider’s period of registration for the purpose of aligning the period with the provider’s period of registration under the TEQSA Act.

(2)The ESOS agency for a registered provider that is a registered VET provider may extend the provider’s period of registration for the purpose of aligning the period with the provider’s period of registration under the NVETR Act.

(3)The ESOS agency for a registered provider that is an approved school provider may extend the provider’s period of registration for the purpose of aligning the period with the provider’s period of approval as an approved school provider.

(4)The ESOS agency for a registered provider must not extend a particular period of registration under subsection (1), (2) or (3) more than once.

(5)The ESOS agency for a registered provider must use a risk management approach when considering whether to extend the provider’s period of registration.

10MContinuation of registration if provider has not finished providing course before expiry of registration#

(1)This section applies if:

(a)a registered provider is registered to provide a course at a location; and

(b)the provider’s registration for the course at the location is due to expire before the provider has finished providing the course at the location; and

(c)the provider has not applied under section 10D to renew that registration.

(2)The registered provider’s registration for the course at the location continues until:

(a)if the provider is an approved school provider—the end of the year in which the provider’s registration would have expired but for this section; or

(b)otherwise—the provider has finished providing the course at the location to the students who were enrolled in, and had commenced, the course before the day on which the provider’s registration would have expired but for this section.

(3)Despite subsection (2), the registered provider must not do anything for the purpose of recruiting or enrolling overseas students, or intending overseas students, for the course at the location after the day on which the provider’s registration would have expired but for this section.

Subdivision E · Other registration provisions

11When a provider or registered provider meets the registration requirements#

(1)A provider or registered provider meets the registration requirements if:

(a)the provider is:

(i)a resident; or

(ii)a Table C provider (within the meaning of the Higher Education Support Act 2003); and

(b)the ESOS agency for the provider 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

(c)if the provider is not an exempt provider—the ESOS agency for the provider is satisfied that the provider is fit and proper to be registered; and

(d)the ESOS agency for the provider is satisfied that the provider has the principal purpose of providing education; and

(e)the ESOS agency for the provider has no reason to believe that:

(i)the provider does not have the clearly demonstrated capacity to provide education of a satisfactory standard; or

(ii)the provider has not been providing, or will not provide, education of a satisfactory standard; and

(f)if the provider is an approved school provider—the designated State authority for the provider has given the ESOS agency for the provider a DSA assessment certificate; and

(fa)if the provider is not:

(i)an exempt provider; or

(ii)a registered provider; or

(iii)a provider that provides only one or both of an ELICOS or a Foundation Program; or

(iv)a Table A provider (within the meaning of the Higher Education Support Act 2003); or

(v)a registered higher education provider (within the meaning of the Tertiary Education Quality and Standards Agency Act 2011); or

(vi)a registered TAFE provider;

the provider satisfies subsection (2); and

(g)if the provider is not a registered provider—the provider has paid:

(i)schools initial registration charge (if the provider is liable to pay that charge); and

(ia)National VET Regulator annual registration charge imposed by section 6A of the National Vocational Education and Training Regulator (Charges) Act 2012 (if the provider is liable to pay that charge); and

(ib)a fee determined under section 232 of the National Vocational Education and Training Regulator Act 2011 (if the provider is liable to pay that fee); and

(ic)a fee determined under section 158 of the Tertiary Education Quality and Standards Agency Act 2011 (if the provider is liable to pay that fee); and

(ii)its first TPS levy; and

(h)if the provider is a registered provider or has previously been registered—the provider is not liable to pay an amount of:

(i)CRICOS annual registration charge; or

(ii)schools renewal registration charge; or

(iii)National VET Regulator annual registration charge imposed by section 6A of the National Vocational Education and Training Regulator (Charges) Act 2012; or

(iiia)charge payable under section 7 of the National Vocational Education and Training Regulator (Charges) Act 2012; or

(iiib)charge payable under section 10 of the National Vocational Education and Training Regulator (Charges) Act 2012; or

(iiic)a fee determined under section 232 of the National Vocational Education and Training Regulator Act 2011; or

(iiid)a fee determined under section 158 of the Tertiary Education Quality and Standards Agency Act 2011; or

(iiie)charge imposed by the Tertiary Education Quality and Standards Agency (Charges) Act 2021; or

(iv)TPS levy; or

(v)late payment penalty for any such charge or levy; and

(i)any other requirements prescribed by the regulations are satisfied.

Note: For when a registered higher education provider has the principal purpose of providing education, see section 5A.

(2)A provider satisfies this subsection if the provider has provided one or more courses for consecutive study periods totalling at least 2 years at a location or locations to students in Australia other than overseas students.

Note: For the definition of study period, see section 5.

(3)For the purposes of subsection (2), a break that ordinarily occurs, or could reasonably be expected to ordinarily occur, during or between one or more study periods:

(a)counts towards the total of 2 years; and

(b)does not prevent study periods from being consecutive.

Note: Such breaks may include weekends, public holidays or semester breaks.

11ARules relating to applications for registration etc.#

(1)This section applies in relation to:

(a)an application made to the ESOS agency for a provider under section 9; and

(b)an application made to the ESOS agency for a registered provider under section 10D or 10H.

Form of application etc.

(2)The application must be:

(a)made in the form approved, in writing, by the ESOS agency for the provider or registered provider; and

(b)accompanied by any information and documents required by the agency.

Withdrawal of application

(3)The provider or registered provider may withdraw the application at any time before a decision is made on the application by giving written notice to the ESOS agency for the provider.

Consideration of application

(4)When considering the application, the ESOS agency for the provider or registered provider may:

(a)consider any information in the possession of the agency that is relevant to the application; and

(b)conduct an audit of any matter relating to the application.

(5)Subsection (4) does not limit the things that the ESOS agency for the provider or registered provider may do when considering the application.

11BESOS agency may request further information or documents#

(1)This section applies in relation to:

(a)an application made to the ESOS agency for a provider under section 9; and

(b)an application made to the ESOS agency for a registered provider under section 10D or 10H.

(2)If the ESOS agency for the provider or registered provider needs further information or documents to decide the application, the agency may request any or all of the following to give the agency the further information or documents:

(a)the provider;

(b)if the provider is an approved school provider—the designated State authority for the provider;

(c)another ESOS agency.

(3)The request:

(a)must be made in writing; and

(b)must specify the period within which the further information or documents are to be given (which must be at least 14 days after the request is made); and

(c)contain a statement setting out the effect of subsection (4).

(4)The ESOS agency for the provider or registered provider may decline to consider, or further consider, the application until the further information or documents are given.

11CCopies of decision notices to be given by the ESOS agency#

Notice of registration etc.

(1)If the ESOS agency for a provider or registered provider gives the provider a notice under section 10A, 10G or 10K, the agency must give a copy of the notice to:

(a)if the provider is an approved school provider—the designated State authority for the provider; and

(b)if the ESOS agency for the provider is not the Secretary—the Secretary.

Notice of refusal to register an approved school provider

(2)If the ESOS agency for a provider that is an approved school provider refuses to register the provider under section 10, the agency must give a copy of the notice of the decision given to the provider under section 169AC to the designated State authority for the provider.

Notice of registration conditions etc.

(3)If the ESOS agency for a registered provider:

(a)imposes a condition on, or varies or removes a condition of, the provider’s registration under section 10B after the commencement of the registration; or

(b)refuses to renew the provider’s registration under section 10E; or

(c)refuses to add one or more courses at one or more locations to the provider’s registration under section 10J; or

(d)extends the provider’s period of registration under section 10L;

the agency must give a copy of the notice of the decision given to the provider under section 169AC to:

(e)if the provider is an approved school provider—the designated State authority for the provider; and

(f)if the ESOS agency for the provider is not the Secretary—the Secretary.

Note: Section 169AC requires the ESOS agency to give notice of certain decisions.

13TPS Director may require information#

(1)The TPS Director may request a provider who is not yet registered to give the TPS Director information that is relevant to determining the provider’s amount of TPS levy at any time before the provider is registered.

Note: A person could commit an offence if the person provides false or misleading information in complying or purporting to comply with this section: see section 108.

(2)The TPS Director does not have to determine the amount of the provider’s TPS levy under section 53A until the provider complies with the request.

14Notifying designated State authorities for approved school providers of non-compliance with this Act etc.#

(1)This section applies if:

(a)an approved school provider applies for registration under section 9; and

(b)the ESOS agency for the provider has information suggesting that:

(i)the provider is not complying, or will not comply, with this Act or the national code; or

(ii)if the ELICOS Standards or Foundation Program Standards apply in relation to the provider—the provider is not complying, or will not comply, with those Standards; or

(iii)the provider does not have the principal purpose of providing education; or

(iv)the provider does not have the clearly demonstrated capacity to provide education of a satisfactory standard; or

(v)the provider has not been providing, or will not provide, education of a satisfactory standard; and

(c)the source of the information is not the designated State authority for the provider.

(2)Before deciding the application for registration, the ESOS agency must:

(a)give the information to the designated State authority; and

(b)allow the authority at least 7 days to respond, in writing, to the information.

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.