Part 5 · Education Services for Overseas Students Act 2000

Contents

Part 5 · Tuition protection service

Division 1 · Guide to this Part

45Guide to this Part#

• This Part sets out what happens when a registered provider or an overseas student or intending overseas student defaults (that is, when a provider fails to start or finish providing a course to a student, or a student fails to start or finish a course with a provider).

• Division 2 sets out the obligation on registered providers to provide refunds to students. In the case of a provider default, a registered provider may instead provide alternative courses for the students at the provider’s expense.

• If a provider defaults and fails to discharge its obligations to a student under Division 2, then, under Division 3, the TPS Director must provide the student with options for suitable alternative courses (if any such courses are available).

• Under Division 4, payments can be made out of the Overseas Students Tuition Fund to refund students, and to reimburse providers who provide students with alternative courses, when a provider has failed to discharge its obligations. (This is called making a call on the OSTF.)

Division 2 · Obligations on registered providers when a provider or student defaults

Subdivision A · Provider defaults

46AWhen a registered provider defaults#

(1)A registered provider defaults, in relation to an overseas student or intending overseas student and a course at a location, if:

(a)either of the following occurs:

(i)the provider fails to start to provide the course to the student at the location on the agreed starting day;

(ii)the course ceases to be provided to the student at the location at any time after it starts but before it is completed; and

(b)the student has not withdrawn before the default day.

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

(2)To avoid doubt, a registered provider defaults if the provider is prevented from providing a course at a location because a sanction has been imposed on the provider under Part 6.

Ceasing to provide courses

(3)A registered provider does not default, in relation to an overseas student or intending overseas student and a course at a location, if the provider fails to start to provide the course, or the course ceases to be provided, to the student because the student defaults in relation to the course under paragraph 47A(1)(c).

(4)If a registered provider for a course for a location has changed to become an entity of a different kind, the ESOS agency for the provider may notify the provider in writing that the course is not taken, for the purposes of subparagraph (1)(a)(ii) of this section, to have ceased to be provided at the location merely because of the change. The notice has effect accordingly.

(5)In deciding whether to give the notice, the ESOS agency for the registered provider must have regard to:

(a)the effect of the change on the delivery of courses and outcomes for students; and

(b)any advice provided by another ESOS agency; and

(c)if the provider is an approved school provider—any advice of the State designated authority for the provider.

46BRegistered providers to notify of provider default#

(1)A registered provider must give notices in accordance with this section if the provider defaults in relation to one or more overseas students or intending overseas students and a course at a location.

Note: 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.

Notifying the ESOS agency and TPS Director

(2)The provider must notify, in writing, the ESOS agency for the provider and the TPS Director of the default within 3 business days of the default occurring.

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

(3)The notice must include the following:

(a)the circumstances of the default;

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

(c)advice as to:

(i)whether the provider intends to discharge its obligations to those students under section 46D; and

(ii)(if appropriate) how the provider intends to discharge those obligations.

Notifying students

(4)The provider must also notify, in writing, of the default the students in relation to whom the provider has defaulted.

Notice requirements

(5)A notice given under subsection (2) or (4) must comply with any requirements of a legislative instrument made under subsection (6).

Legislative instrument

(6)The Minister may, by legislative instrument, specify requirements for a notice given under this section.

46DObligations on registered providers in case of provider default#

(1)This section applies if a registered provider defaults in relation to an overseas student or intending overseas student and a course at a location.

(2)The provider must discharge its obligations to the student, in accordance with subsection (3), within the period (the provider obligation period) of 14 days after the default day.

Note: For the consequences of breaching this section, see section 46E (offence), Divisions 3 (student placement service) and 4 (calls on the OSTF), and Division 1 of Part 6 (conditions, suspension and cancellation).

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

(a)both of the following apply:

(i)the provider arranges for the student to be offered a place in a course in accordance with subsection (4);

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

(b)the provider provides a refund in accordance with subsection (6).

Arranging alternative courses

(4)The provider may arrange for the student to be offered a place in an alternative course at the provider’s expense.

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

Providing a refund

(6)The provider may pay the student a refund of the amount, worked out in accordance with any legislative instrument made under subsection (7), of any unspent tuition fees received by the provider in respect of the student.

Note: For providers who are required to maintain an account in accordance with section 28, the refund might be paid out of the account: see section 29.

(7)The Minister may, by legislative instrument, specify a method for working out the amount of unspent tuition fees for the purposes of subsection (6).

46EOffence for failure to discharge obligations#

(1)A person commits an offence if:

(a)either:

(i)the person is a registered provider; or

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

(b)the person defaults in relation to an overseas student or intending overseas student and a course at a location; and

(c)the person fails to discharge its obligations to the student in accordance with section 46D (whether or not the provider is still a registered provider at that time).

Penalty: 60 penalty units.

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

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

(3)The maximum penalty for each day that an offence under subsection (1) continues is 10% of the maximum penalty that can be imposed in respect of that offence.

Note: Subsection (1) is a continuing offence under section 4K of the Crimes Act 1914.

46FRegistered providers to notify of outcome of discharge of obligations#

(1)A registered provider that defaults, in relation to one or more overseas students or intending overseas students and a course at a location, must give a notice in accordance with this section.

Note: 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.

(2)The provider must give a notice to the ESOS agency for the provider and the TPS Director within 7 days after the end of the provider obligation period.

Notice requirements

(3)The notice must include the following:

(a)whether the provider discharged its obligations to the students in accordance with section 46D;

(b)if the provider arranged alternative courses:

(i)details of the students the provider arranged alternative courses for; and

(ii)details of the courses arranged; and

(iii)evidence of each student’s acceptance of an offer of a place in an alternative course;

(c)if the provider provided refunds:

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

(ii)details of the amounts of the refunds provided.

(4)The notice must comply with any requirements of a legislative instrument made under subsection (5).

Legislative instrument

(5)The Minister may, by legislative instrument, specify requirements for a notice given under this section.

Subdivision B · Student defaults

47AWhen a student defaults#

(1)An overseas student or intending overseas student defaults, in relation to a course at a location, if:

(a)the course starts at the location on the agreed starting day, but the student does not start the course on that day (and has not previously withdrawn); or

(b)the student withdraws from the course at the location (either before or after the agreed starting day); or

(c)the registered provider of the course refuses to provide, or continue providing, the course to the student at the location because of one or more of the following events:

(i)the student failed to pay an amount he or she was liable to pay the provider, directly or indirectly, in order to undertake the course;

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

(iii)misbehaviour by the student.

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

Note 2: For an exception to subparagraph (1)(c)(iii), see subsection (3).

(2)An overseas student or intending overseas student does not default under paragraph (1)(a) in relation to a course at a location if the student does not start that course because the registered provider defaults in relation to the course at the location under subparagraph 46A(1)(a)(i).

(3)An overseas student or intending overseas student does not default under subparagraph (1)(c)(iii) unless the registered provider accords the student natural justice before refusing to provide, or continue providing, the course to the student at the location.

47BRequirement to make written agreement about student default#

A registered provider must enter into a written agreement with each overseas student or intending overseas student that:

(a)sets out the refund requirements that apply if the student defaults in relation to a course at a location; and

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

Note: For the consequences of breaching this section, see section 47F (offence) and Division 1 of Part 6 (conditions, suspension and cancellation).

47DRefund under a written agreement about student default#

(1)A registered provider must provide a refund under this section if an overseas student or intending overseas student defaults in relation to a course provided by the provider at a location.

Note 1: A refund might not be required under this section if a student is refused a student visa: see subsection (5).

Note 2: For the consequences of breaching this section, see section 47G (offence), Division 4 (calls on the OSTF) and Division 1 of Part 6 (conditions, suspension and cancellation).

Provider to pay refund

(2)The provider must pay a refund of the amount (if any) required by the agreement entered into with the student under section 47B.

Note: For providers who are required to maintain an account in accordance with section 28, the refund might be paid out of the account: see section 29.

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

(a)the student;

(b)if a person (other than the student) is specified in the agreement to receive any refund under this section—the specified person.

(4)The provider must pay the refund within the period (the provider obligation period) of 4 weeks after receiving a written claim from the student.

Exception—refusal of student visa

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

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

(b)the refusal was a reason for one or more of the following acts or omissions by the student that directly or indirectly caused the student to default in relation to the course at the location:

(i)the student’s failure to start the course at the location on the agreed starting day;

(ii)the student’s withdrawal from the course at that location;

(iii)the student’s failure to pay an amount he or she was liable to pay the provider, directly or indirectly, in order to undertake the course at that location.

Note: A registered provider is required to provide a refund under section 47E instead.

47ERefund in other cases#

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

(a)an overseas student or an intending overseas student defaults in relation to a course at a location; and

(b)either:

(i)the provider has not entered into an agreement with the student that meets the requirements of section 47B; or

(ii)the provider is not required to pay a refund to the student because of subsection 47D(5) (refusal of student visa).

Note: For the consequences of breaching this section, see section 47G (offence), Division 4 (calls on the OSTF) and Division 1 of Part 6 (conditions, suspension and cancellation).

(2)The provider must pay the student a refund of the amount worked out in accordance with an instrument under subsection (4).

Note: For providers who are required to maintain an account in accordance with section 28, the refund might be paid out of the account: see section 29.

(3)The provider must pay the refund within the period (the provider obligation period) of 4 weeks after the default day.

Legislative instrument

(4)The Minister may, by legislative instrument, specify a method for working out the amount of a refund for the purposes of subsection (2).

47FOffence for failure to enter agreement that complies with requirements#

(1)A person commits an offence if:

(a)either:

(i)the person is a registered provider; or

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

(b)the person fails to enter into an agreement that complies with the requirements of section 47B.

Penalty: 60 penalty units.

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

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

(3)Section 4K of the Crimes Act 1914 (continuing offences) does not apply in relation to an offence under subsection (1).

47GOffence for failure to provide refund#

(1)A person commits an offence if:

(a)either:

(i)the person is a registered provider; or

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

(b)an overseas student or intending overseas student defaults in relation to a course at a location that is or was provided, or is to be provided, by the person; and

(c)the person fails to provide a refund to the student in accordance with section 47D or 47E (as the case requires) (whether or not the provider is still a registered provider at that time).

Penalty: 60 penalty units.

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

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

(3)The maximum penalty for each day that an offence under subsection (1) continues is 10% of the maximum penalty that can be imposed in respect of that offence.

Note: Subsection (1) is a continuing offence under section 4K of the Crimes Act 1914.

47HRegistered providers to notify of outcome of discharge of obligations#

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

(a)an overseas student or intending overseas student defaults in relation to a course provided by the provider at a location; and

(b)the provider is required to provide a refund under section 47E.

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.

(2)The provider must give a notice to the ESOS agency for the provider and the TPS Director within 7 days after the end of the provider obligation period.

(3)The notice must include the following:

(a)whether the provider provided a refund under section 47E;

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

(c)details of the amount of the refund provided.

(4)The notice must comply with any requirements of a legislative instrument made under subsection (5).

Legislative instrument

(5)The Minister may, by legislative instrument, specify requirements for a notice given under this section.

Subdivision C · Recovering an amount

48Recovering an amount#

(1)An overseas student or intending overseas student may recover an amount owing to the student under this Division as a debt by action in a court of competent jurisdiction (unless subsection (2) applies).

Note: This section is also affected by section 50C.

(2)If:

(a)a registered provider owes an amount to a student under section 47D; and

(b)a person (other than the student) is specified in the agreement entered into between the provider and the student under section 47B;

the specified person, rather than the student, may recover the amount as a debt by action in a court of competent jurisdiction.

(3)This Division does not affect any liability that a provider has apart from this Division to pay an additional amount to the student.

Division 3 · Student placement service

49Student placement service#

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

(a)a registered provider has defaulted in relation to an overseas student or intending overseas student and a course at a location; and

(b)either:

(i)the provider has failed to discharge its obligations under section 46D to the student by the end of the provider obligation period; or

(ii)the provider is unlikely to be able to discharge its obligations under section 46D to the student by the end of the provider obligation period.

Suitable alternative courses

(2)If any suitable alternative courses are available, the TPS Director must provide, in writing, the student with one or more options for such alternative courses.

Accepting an alternative course

(3)If a registered provider of an alternative course referred to in subsection (2) offers the student a place in the course, the student may accept the offer.

Note: A call is made on the OSTF to pay the provider of the alternative course: see Division 4.

(4)An acceptance must:

(a)be in writing; and

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

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

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

(b)if the TPS Director determines that exceptional circumstances apply:

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

(ii)any longer period determined in writing by the TPS Director, and agreed to by the student.

Legislative instrument

(6)The Minister may, by legislative instrument, specify criteria to be applied in considering whether a particular course is a suitable alternative course for the purposes of this Act.

Division 4 · Calls on the OSTF

50AWhen a call is made on the OSTF#

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

Provider default, no place accepted by student

(2)A call is made on the OSTF if the TPS Director determines that:

(a)a registered provider has defaulted in relation to an overseas student or intending overseas student and a course at a location; and

(b)the provider has failed to discharge its obligations under section 46D to the student by the end of the provider obligation period; and

(c)the student has not accepted a place in an alternative course in accordance with section 49.

Provider default, place accepted by student

(3)A call is made on the OSTF if the TPS Director determines that:

(a)a registered provider has defaulted in relation to an overseas student or intending overseas student and a course at a location; and

(b)the provider has failed to discharge its obligations under section 46D to the student by the end of the provider obligation period; and

(c)the student accepts a place in an alternative course in accordance with section 49.

Student default, refund not provided by registered provider

(4)A call is made on the OSTF if the TPS Director determines that:

(a)a student has defaulted in relation to a course provided by a registered provider at a location; and

(b)the provider fails to provide a refund in accordance with section 47D or 47E (as the case requires) by the end of the provider obligation period.

No call on the OSTF after a year

(5)A call is not made on the OSTF if the time when the TPS Director becomes aware that the circumstances described in subsection (2), (3) or (4) may exist is more than 12 months after the relevant default day.

50BWhat the TPS Director must do when a call is made#

TPS Director must pay amount

(1)If a call is made on the OSTF, then, as soon as practicable, the TPS Director must pay out of the OSTF an amount equal to the amount that the provider must still pay in order to satisfy the refund requirements under Division 2.

Note: The TPS Director pays the amount to the person specified in subsection (3).

(2)If the student accepts a place in an alternative course in accordance with section 49, the TPS Director may spend more than the amount of that refund entitlement if the TPS Director considers that to do so:

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

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

Who TPS Director pays amount to

(3)The TPS Director must, in accordance with a legislative instrument made under subsection (5), pay the amount to:

(a)if the student has accepted a place in an alternative course in accordance with section 49—the registered provider of that course; and

(b)if a refund was required to be paid under section 47D, and a person (other than the student) is specified in the agreement made with the student under section 47B to receive any refund under this section—the specified person; and

(c)otherwise—the student.

(4)If:

(a)the TPS Director is required under subsection (3) to pay a registered provider for providing an alternative course; and

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

the TPS Director must pay the difference to the person specified in paragraph (3)(b) or (c) (as the case requires).

Legislative instrument

(5)The Minister may, by legislative instrument, specify requirements for payments made under this section.

50CConsequences of a payment under section 50B#

Cessation of claim

(1)If:

(a)either:

(i)a registered provider defaults in relation to an overseas student or intending overseas student and a course at a location; or

(ii)an overseas student or intending overseas student defaults in relation to a course provided by a registered provider at a location; and

(b)the TPS Director pays an amount in accordance with section 50B in relation to the student;

the student, and any person specified in paragraph 50B(3)(b), cease to have any claim against the provider in respect of the student’s fees to which the refund requirements under Division 2 relate.

Provider must pay back TPS Director

(2)Instead, the provider must pay the TPS Director an amount equal to the amount that the TPS Director paid under section 50B.

(2A)If the provider is required to maintain an account in accordance with section 28, the payment of that amount must be made out of the account to the extent that there is a sufficient amount standing to the credit of the account.

(2B)To avoid doubt, subsection (2A) is subject to subsections 29(4) and (5).

(3)The TPS Director may recover that amount from the provider as a debt due to the Commonwealth by action in a court of competent jurisdiction.

TPS Director may enforce security

(4)If the provider had granted the TPS Director a charge or other security over any of its assets, the TPS Director may enforce the charge or security in satisfaction, or partial satisfaction, of the debt.

50DTPS Director to notify Immigration Secretary#

(1)The TPS Director must notify the Immigration Secretary, in accordance with a legislative instrument made under subsection (3), as soon as practicable if the TPS Director provides a refund to a person specified in paragraph 50B(3)(b) or (c).

Note 1: This section constitutes authorisation for the purposes of other laws, such as paragraph 6.2(b) of Australian Privacy Principle 6.

Note 2: The Immigration Secretary’s power under this section can be delegated under section 170.

(2)The notice must include the name of the overseas student or intending overseas student in relation to whom the refund was provided.

(3)The Minister may, by legislative instrument, specify requirements for a notice given under this section.

50ERight to refund may be cancelled etc. without compensation#

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

(a)the right may be cancelled, revoked, terminated or varied by or under later legislation; and

(b)no compensation is payable if the right is so cancelled, revoked, terminated or varied.

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.