Part 3 · Education Services for Overseas Students Act 2000

Contents

Part 3 · Obligations on registered providers

Division 1A · Guide to this Part

15AGuide to this Part#

• A registered provider has obligations under this Part.

• Division 1 contains general obligations on registered providers. For example, a registered provider must not engage in misleading or deceptive conduct when recruiting or providing courses to overseas students. Other obligations relate to notification, record keeping and financial requirements.

• Division 2 deals with tuition fees. In general, a registered provider must not receive more than 50% of the total tuition fees for a course before an overseas student begins the course. The provider must keep those fees in a separate account.

• Enforcement action (such as imposing conditions, or suspending or cancelling a registration) can be taken under Part 6 in relation to a registered provider who breaches this Part.

Division 1 · General obligations

15Registered providers must not engage in misleading or deceptive conduct#

A registered provider must not engage in misleading or deceptive conduct in connection with:

(a)the recruitment of overseas students or intending overseas students; or

(b)the provision of courses to overseas students.

Note: If a registered provider breaches this section, the ESOS agency for the provider may take action under Division 1 of Part 6 against the provider.

16Only Australian residents and Table C providers may be registered#

A registered provider must be:

(a)a resident of Australia; or

(b)a Table C provider (within the meaning of the Higher Education Support Act 2003).

Note: If a registered provider breaches this section, the ESOS agency for the provider may take action under Division 1 of Part 6 against the provider.

17Registered providers must notify their ESOS agency of offences etc. by associates and high managerial agents#

(1)A registered provider must tell the ESOS agency for the provider as soon as practicable if the provider becomes aware that an associate or high managerial agent of the provider:

(a)has been convicted of an offence under this Act or the old ESOS Act at any time during the last 5 years; or

(aa)has been convicted of an offence against any other law of the Commonwealth, or against a law of a State, punishable by:

(i)imprisonment for 2 years or longer; or

(ii)a fine of 120 penalty units or more;

at any time during the last 5 years; or

(b)has ever had the associate’s or agent’s registration cancelled or suspended for any one or more courses for any one or more locations under this Act or the old ESOS Act; or

(ba)if the associate or agent is or has ever been approved (however described) to provide a program, service or activity on behalf of, or with funding from, the Commonwealth or a State—has ever had the associate’s or agent’s approval cancelled or suspended other than at the request of the associate or agent; or

(c)has ever had an Immigration Minister’s suspension certificate issued in respect of the associate or agent; or

(d)has ever had a condition imposed on the associate’s or agent’s registration under this Act; or

(da)if the associate or agent is or has ever been approved (however described) to provide a program, service or activity on behalf of, or with funding from, the Commonwealth or a State—has ever had disciplinary, remedial or other compliance action taken in relation to the approval; or

(e)was involved in the provision of a course by another provider who is covered by any of paragraphs (a) to (da) at the time of any of the events that gave rise to the relevant prosecution or other action.

Note: If a registered provider breaches this section, the ESOS agency for the provider may take action under Division 1 of Part 6 against the provider.

No effect on Part VIIC of the Crimes Act

(2)Nothing in subsection (1) affects the operation of Part VIIC of the Crimes Act 1914 (which, in certain cases, relieves persons from any requirement to disclose spent convictions).

(3)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.

17ARegistered providers must notify their ESOS agency of certain other events#

(1)A registered provider must notify the ESOS agency for the provider of the occurrence of an event that would significantly affect the provider’s ability to comply with this Act.

(2)Notice under subsection (1) must be given within 10 business days after the event occurs.

(3)A registered provider must notify the ESOS agency for the provider of:

(a)any prospective changes to the ownership of the registered provider as soon as practicable before the change takes effect; or

(b)any prospective or actual change in relation to a related person of the provider:

(i)if the change cannot be determined until it takes effect—within 10 business days of the change taking effect; or

(ii)otherwise—as soon as practicable before the change takes effect.

(4)Notice under subsection (3) must be accompanied by information on the new owner or the related person of the provider to enable the making of a decision under section 7A as to whether:

(a)the ESOS agency is satisfied, or no longer satisfied, that the provider is fit and proper to be registered; or

(b)the ESOS agency believes on reasonable grounds that the provider is not fit and proper to be registered.

(4A)A registered provider must notify the ESOS agency for the provider if any of the following events occur:

(a)the provider, or an associate of the provider, begins to own or control an education agent;

(b)there is a change in the ownership or control of an education agent by the provider or an associate of the provider;

(c)an education agent, or an associate of the education agent, begins to own or control the provider;

(d)there is a change in the ownership or control of the provider by an education agent or an associate of the education agent.

(4B)Notice under subsection (4A) must be given within 10 business days after the event occurs.

(5)A notice under this section must be provided in the manner and form specified by the ESOS agency for the provider for the purposes of this subsection.

Note: If a registered provider breaches this section, the ESOS agency for the provider may take action under Division 1 of Part 6 against the provider.

18Payments to providers#

(1)If a registered provider for a course enters into an arrangement with one or more other providers to provide the course jointly, the arrangement must:

(a)be such that the students pay their tuition fees to the registered provider and not directly to the other providers; or

(b)both:

(i)be in writing; and

(ii)provide for the receipt and disbursement of any tuition fees paid by students directly to any of the other providers.

(1A)However, for the purpose of determining the registered provider’s obligations under this Act, any tuition fees paid by students directly to any of the other providers is taken to have been paid directly to the registered provider.

Note: If a registered provider breaches this section, the ESOS agency for the provider may take action under Division 1 of Part 6 against the provider.

19Giving information about accepted students#

(1)A registered provider must give the following information within the applicable number of days after the event specified below occurs:

(a)the name and any other prescribed details of each person who becomes an accepted student of that provider;

(b)for each person who becomes an accepted student—the name, starting day and expected duration of the course for which the student is accepted;

(c)the prescribed information about an accepted student who does not begin his or her course when expected;

(d)any termination of an accepted student’s studies (whether as a result of action by the student or the provider or otherwise) before the student’s course is completed;

(e)any change in the identity or duration of an accepted student’s course;

(f)any other prescribed matter relating to accepted students.

(1A)The applicable number of days is:

(a)if the accepted student is less than 18 years old and the information is of a kind referred to in paragraph (1)(c) or (d)—14 days; or

(b)otherwise—31 days.

(2)A registered provider must give particulars of any breach by an accepted student of a prescribed condition of a student visa as soon as practicable after the breach occurs.

(2A)A registered provider must give particulars of a breach by a student under subsection (2) even if the student has ceased to be an accepted student of the provider.

(3)A registered provider must give the information required by this section by entering the information in the computer system established by the Secretary under section 109.

Note 1: If a registered provider breaches this section, the ESOS agency for the provider may take action under Division 1 of Part 6 against the provider.

Note 2: It is an offence to provide false or misleading information in complying or purporting to comply with this section: see section 108.

Unincorporated registered providers

(4)If the registered provider is an unincorporated body, then it is instead the principal executive officer of the provider who must give the information as required under this section.

(5)A registered provider, or the principal executive officer of a registered provider that is an unincorporated body, who fails to comply with this section commits an offence.

Penalty: 60 penalty units.

(6)An offence under subsection (5) is an offence of strict liability.

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

21Record keeping#

Records of students’ details

(1)A registered provider must keep records of each accepted student who is enrolled with the provider or who has paid any tuition fees for a course provided by the provider.

(2)The records must consist of the following details for each accepted student:

(a)the student’s current residential address;

(b)the student’s mobile phone number (if any);

(c)the student’s email address (if any);

(d)any other details prescribed by the regulations.

(2A)A registered provider must have a procedure to ensure that, at least every 6 months, while the student remains an accepted student of the provider:

(a)the provider confirms, in writing, the details referred to in subsection (2) with the student; and

(b)the records are updated accordingly.

Records of assessment

(2B)If:

(a)an accepted student of a registered provider completes a unit of study for a course; and

(b)the student’s progress in that unit is assessed;

the provider must record the outcome of the student’s assessment for the unit.

(2C)A record under subsection (2B) must be:

(a)kept in accordance with any requirements prescribed by the regulations; and

(b)kept up-to-date.

Retention of records

(3)The provider must retain records kept under this section for at least 2 years after the person ceases to be an accepted student. However, the records do not need to be kept up-to-date after the cessation.

Note: If a registered provider breaches this section, the ESOS agency for the provider may take action under Division 1 of Part 6 against the provider.

Unincorporated registered providers

(4)If the registered provider is an unincorporated body, then it is instead the principal executive officer who must keep and retain the records as required under this section.

Offence

(5)A registered provider, or the principal executive officer of a registered provider that is an unincorporated body, who fails to comply with this section commits an offence.

Penalty: 60 penalty units.

(6)An offence under subsection (5) is an offence of strict liability.

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

21AObligations relating to the education agents of registered providers#

(1)A registered provider must:

(a)maintain a list of all the provider’s education agents; and

(b)publish that list:

(i)on its website; and

(ii)in any other manner prescribed by the regulations; and

(c)comply with any requirements of regulations made for the purposes of subsection (2).

Note: If a registered provider breaches this section, the ESOS agency for the provider may take action under Division 1 of Part 6 against the provider.

(1A)A registered provider who fails to comply with subsection (1) commits an offence.

Penalty: 60 penalty units.

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

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

(2)The regulations may prescribe requirements that registered providers must comply with in relation to their education agents.

21BGiving information about education agent commissions#

Request for information about commissions

(1)The Secretary may request a registered provider to give specified information about, or in relation to, education agent commissions, given by, or on behalf of, the provider to one or more education agents over a specified period (the reporting period) in connection with the recruitment of accepted students of the provider.

(2)The request must:

(a)be in writing; and

(b)specify the reporting period; and

(c)specify the day by which the information is to be given; and

(d)specify the manner or form in which information is to be given (including by requiring information to be entered in the computer system established under section 109); and

(e)specify the documents (if any) which must accompany the information.

(3)Without limiting subsection (1), the information may relate to one or more of the following:

(a)the total amount in dollars given to each education agent;

(b)the value and description of non-monetary benefits given to each education agent;

(c)the number of accepted students of the provider recruited by each education agent.

(4)The day specified for the purposes of paragraph (2)(c) must be at least 30 days after the request is given to the provider.

Provider must comply with request

(5)The registered provider must comply with the request before:

(a)the day specified in the request; or

(b)any later day allowed by the Secretary.

Note 1: If a registered provider breaches this section, the ESOS agency for the provider may take action under Division 1 of Part 6 against the provider.

Note 2: It is an offence to provide false or misleading information in complying or purporting to comply with this section: see section 108.

(6)If specified in the request, a registered provider must give the information required by this section by entering the information in the computer system established by the Secretary under section 109.

Offence

(7)A registered provider who fails to comply with subsection (5) commits an offence.

Penalty: 60 penalty units.

(8)An offence under subsection (7) is an offence of strict liability.

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

(9)Section 4K (continuing offences) of the Crimes Act 1914 does not apply in relation to an offence under subsection (7) of this section.

23CRICOS annual registration charge#

(1)If a registered provider is liable to pay CRICOS annual registration charge for a year, the Secretary must give the registered provider a written notice (the first notice) that:

(a)specifies the amount of the charge payable by the provider; and

(b)determines that the amount is due for payment at the end of the 30-day period beginning on the day after the first notice is given to the provider.

Note: CRICOS annual registration charge is imposed by section 5 of the Education Services for Overseas Students (Registration Charges) Act 1997.

(2)If the registered provider did not pay the amount of CRICOS annual registration charge at or before the time when it became due for payment, the Secretary must give the provider a written notice (the second notice) that:

(a)specifies the amount of the charge payable by the provider; and

(b)states that the provider must pay that amount by the end of the 7-day period beginning on the day after the second notice is given to the provider; and

(c)sets out the effect of section 90.

Note: Section 90 provides that the provider’s registration is automatically suspended if the provider does not comply with the second notice.

(3)If:

(a)the registered provider fails to comply with the second notice; and

(b)the Secretary is not the ESOS agency for the provider;

the Secretary must notify the ESOS agency for the provider of the failure.

(4)A notice under this section is not a legislative instrument.

24TPS levies#

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

Note: Subdivision B of Division 2 of Part 5A, and the Education Services for Overseas Students (TPS Levies) Act 2012, have details about how amounts of TPS levy are determined.

(2)A registered provider who is required to pay an amount of TPS levy for a calendar year must pay it to the TPS Director by the day stated in the notice that the TPS Director gives the provider under section 53B.

Note: If a registered provider breaches this section, the ESOS agency for the provider may take action under Division 1 of Part 6 against the provider.

26Disclosure obligations of registered providers#

(1)A registered provider who is required to pay a TPS levy for a year must tell the TPS Director as soon as practicable of any matter that might cause the TPS Director to increase the amount of levy the provider would be required to pay for that or a later year.

(2)The obligation in subsection (1) continues to apply even after the registered provider has paid its TPS levy for the year.

TPS Director may request information

(3)At any time, the TPS Director may request a registered provider to give the TPS Director information that is relevant to determining the provider’s amount of TPS levy. The provider must comply with the request.

Note 1: If a registered provider breaches this section, the ESOS agency for the provider may take action under Division 1 of Part 6 against the provider.

Note 2: It is an offence to provide false or misleading information in complying or purporting to comply with this section: see section 108.

Division 2 · Tuition fees

27Tuition fees#

(1)A registered provider must not receive, in respect of an overseas student or intending overseas student, more than 50% of the student’s total tuition fees for a course before the student has begun the course.

(2)Subsection (1) does not apply if:

(a)either of the following choose to pay more than 50% of the overseas student’s, or intending overseas student’s, total tuition fees for a course before the student has begun the course:

(i)the student;

(ii)a person who is responsible for paying those fees; or

(b)the course has a duration of 25 weeks or less.

28Obligation for registered provider to maintain account#

Requirement to maintain account

(1)A registered provider who receives, in respect of an overseas student or intending overseas student, tuition fees for a course before the student has begun the course must maintain an account in accordance with this section.

Note 1: Providers covered by section 31 are not required to comply with this section.

Note 2: The obligation to maintain an account under this section may continue to apply to a person or entity that ceases to be a registered provider until matters relating to tuition fees paid into the account in accordance with section 29 have been dealt with or resolved (see section 7AB).

Account to be maintained with an Australian ADI

(2)The account must be maintained with an Australian ADI (within the meaning of section 9 of the Corporations Act 2001).

29Obligations in relation to account money#

Tuition fees received before course begins to be paid to credit of account

(1)A registered provider who receives, in respect of an overseas student or intending overseas student, tuition fees for a course before the student has begun the course must pay the fees to the credit of an account maintained in accordance with section 28.

Note: Providers covered by section 31 are not required to comply with this section.

(2)The provider must pay the fees into the account within 5 business days of receiving the fees.

Note: For the definition of business day, see section 2B of the Acts Interpretation Act 1901.

Requirement in relation to withdrawing money from account

(3)The provider must ensure that, at all times, there is a sufficient amount (the protected amount) standing to the credit of the account to repay all tuition fees to every overseas student or intending overseas student (a relevant student):

(a)in respect of whom tuition fees have been paid to the provider; and

(b)who has not yet begun the course that the provider is to provide to the student.

(4)An amount may be withdrawn from the account, so as to reduce the balance of the account below the protected amount, only if:

(a)the amount is withdrawn to pay a refund under section 46D, 47D or 47E to, or in relation to, a relevant student; or

(b)both of the following apply:

(i)the provider arranges, under section 46D, for a relevant student to be offered a place in an alternative course at the provider’s expense;

(ii)the amount is withdrawn to pay the alternative provider in relation to the relevant student; or

(c)the amount is withdrawn to pay the TPS Director under section 50C in relation to the relevant student.

Note 1: Tuition fees of a relevant student cease to be part of the protected amount (and may therefore be withdrawn from the account) once the student begins the course that the provider is to provide to the student: see subsection (3).

Note 2: There are no limits on withdrawals from the account as long as the balance of the account remains above the protected amount.

(5)An amount withdrawn in accordance with subsection (4) must not be more than the amount of the tuition fees received by the provider in respect of the relevant student before the student begins the course.

Account money not available for payment of debts etc.

(6)To avoid doubt, the protected amount:

(a)is not available for the payment of a debt of any creditor of the provider, other than as referred to in subsection (4); and

(b)is not liable to be attached or taken in execution under the order or process of a court at the instance of any creditor of the provider, other than as referred to in subsection (4).

30Regulations#

The regulations may provide additional requirements in relation to:

(a)tuition fees for a course received by a provider, in respect of an overseas student or intending overseas student, before the student has begun the course; or

(b)accounts maintained under this Division.

Note: Providers covered by section 31 are not required to comply with regulations made under this section.

31Exemption from requirement#

The following kinds of provider are exempt from the requirements in sections 28 and 29 and in regulations made under section 30:

(a)a provider that is administered by a State education authority;

(b)any other provider that is entitled to receive funds under a law of the Commonwealth for recurrent expenditure for the provision of education or training, other than one excluded by the regulations from the scope of this paragraph;

(c)any other provider specified in the regulations.

To avoid doubt, any private corporate body established in connection with a provider covered by paragraph (a) or (b) of this section is not itself, by virtue of that connection alone, a provider covered by that paragraph.

32Offence#

(1)A person commits an offence if:

(a)either:

(i)the person is a registered provider; or

(ii)if the registered provider is an unincorporated body—the person is the principal executive officer of the provider; and

(b)the person engages in conduct; and

(c)the conduct contravenes a requirement of section 28 or 29; and

(d)the provider is not covered by section 31.

Penalty: 60 penalty units.

(2)To avoid doubt, subsection (1) does not apply if a person contravenes a requirement of regulations made under section 30.

(3)Subsection (1) is an offence of strict liability.

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

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.