Part 5A · Education Services for Overseas Students Act 2000

Contents

Part 5A · Overseas Students Tuition Fund, the TPS Director and the TPS Advisory Board

Division 1 · Guide to this Part

51Guide to this Part#

• This Part establishes the Overseas Students Tuition Fund, the TPS Director and the TPS Advisory Board.

• Division 2:

(a) establishes the Overseas Students Tuition Fund (the OSTF); and

(b) sets out the money that goes into, and can be paid out of, the OSTF; and

The OSTF provides the money for refunds under Part 5 for defaults where registered providers fail to discharge their obligations to overseas students. The money in the OSTF is mostly made up of the TPS levies collected from registered providers each year.

• Division 3 of this Part establishes the office of the TPS Director, and his or her terms and conditions. The TPS Director is responsible for:

(a) assisting students to find suitable alternative courses, and providing refunds, in the case of defaults; and

(b) working out the amount of the TPS levy each year; and

• Division 4 establishes the TPS Advisory Board, the Board members’ terms and conditions, and how Board meetings are to be conducted. The Board is responsible for providing advice and making recommendations to the TPS Director on setting the TPS levy each year.

Division 2 · Overseas Students Tuition Fund and TPS levies

Subdivision A · Overseas Students Tuition Fund

52AName of Fund#

(1)The Overseas Students Tuition Fund is established by this section.

(2)The Fund is a special account for the purposes of the Public Governance, Performance and Accountability Act 2013.

52BCredits to the OSTF#

There must be credited to the OSTF amounts equal to the following:

(a)all amounts of TPS levy received from providers (see section 24 and Subdivision B of this Division);

(b)all amounts recovered from providers under section 50C;

(c)any money the TPS Director borrows for the OSTF;

(d)any other money appropriated by the Parliament for the purpose of the OSTF;

(e)any late payment penalty received by the TPS Director;

(f)amounts received by the Commonwealth for the purposes of the OSTF.

Note: An Appropriation Act may contain a provision to the effect that, if any of the purposes of a special account is a purpose that is covered by an item in the Appropriation Act (whether or not the item expressly refers to the special account), then amounts may be debited against the appropriation for that item and credited to that special account.

52CPurposes of the OSTF#

(1)The purposes of the OSTF are as follows:

(a)making payments as a result of calls being made on the OSTF under Division 4 of Part 5;

(b)paying or discharging the costs, expenses and other obligations incurred by the Commonwealth in the performance of the TPS Director’s functions, including in managing the OSTF (subject to subsection (2));

(c)paying any remuneration and allowances payable to the TPS Director.

Note: See section 80 of the Public Governance, Performance and Accountability Act 2013 (which deals with special accounts).

(2)Paragraph (1)(b) does not include paying or discharging any costs, expenses or other obligations associated with services provided to the TPS Director by any employee or officer of the Department.

Subdivision B · TPS levies

53ATPS Director to work out the amount of TPS levies#

(1)For each calendar year, the TPS Director must determine the amount of TPS levy required from each provider who is required to pay a contribution.

(2)The TPS Director must determine the amount in accordance with the Education Services for Overseas Students (TPS Levies) Act 2012.

53BNotice of amount of TPS levy#

(1)The TPS Director must give a written notice to each provider who is liable to pay a TPS levy stating:

(a)the amount of the provider’s levy; and

(b)if the provider is registered—the day by which the provider must pay the levy.

Note: There is no particular due date for unregistered providers but they cannot be registered until they have paid their first TPS levy: see subparagraph 11(g)(ii).

(2)The day mentioned in paragraph (1)(b) of this section must be at least 14 days after the notice is given to the provider.

(3)The notice must also include:

(a)the reasons for the determination referred to in section 53A; and

(b)a statement that an application may be made under section 169AG for review of the determination by the Administrative Review Tribunal.

(4)A failure to give the notice required by this section does not affect the validity of the determination.

53CNotifying the ESOS agency of payment of first TPS levy#

(1)If a provider who is not yet registered has paid its first TPS levy, the TPS Director must notify the ESOS agency for the provider of the payment.

Note: The ESOS agency needs to know when the first TPS levy has been paid so that the provider can be registered: see subparagraph 11(g)(ii).

(2)A notification under subsection (1) must be given as soon as practicable after the provider has paid the levy.

53DReminder notices#

(1)The TPS Director must give a reminder notice to a registered provider who has not paid an amount of TPS levy by the end of the due day.

(2)The reminder notice must:

(a)specify the amount that is still owing; and

(b)state that the registered provider must pay the amount by the end of the seventh day after the reminder notice is given to the provider; and

(c)set 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 reminder notice.

(3)The TPS Director must tell the ESOS agency for the registered provider if the provider fails to comply with the reminder notice.

Division 3 · TPS Director

54AAppointment of TPS Director#

(1)The TPS Director is to be appointed by the Minister by written instrument.

Note 1: The TPS Director is eligible for reappointment: see section 33AA of the Acts Interpretation Act 1901.

Note 2: The TPS Director is also the VSL Tuition Protection Director under the VET Student Loans Act 2016 and the Higher Education Tuition Protection Director under the Higher Education Support Act 2003.

(2)Before the Minister makes an appointment, the Minister may take into account any recommendation of the Secretary in relation to the appointment.

(3)The TPS Director holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.

(4)The TPS Director is to be appointed on a full-time basis.

54BFunctions of the TPS Director#

The TPS Director has the following functions:

(a)facilitating and monitoring the placement of overseas students and intending overseas students in alternative courses under section 49;

(b)determining whether a call is made on the OSTF under section 50A;

(c)paying amounts out of the OSTF under section 50B;

(d)reporting to the Minister on:

(i)the operation of Part 5 (tuition protection service); and

(ii)the financial status of the OSTF;

(e)managing the OSTF in a way that ensures that it is able to meet all its liabilities from time to time;

(f)making the legislative instrument each year for the purposes of subsections 9(3) and 10(2) of the Education Services for Overseas Students (TPS Levies) Act 2012;

(fa)recommending that the ESOS agency for a registered provider take one or more actions against the provider under subsection 83(1A);

(g)any other function conferred by this Act.

54CRemuneration and allowances#

(1)The TPS Director is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the TPS Director is to be paid the remuneration that is prescribed by the regulations.

(2)The TPS Director is to be paid the allowances that are prescribed by the regulations.

(3)This section has effect subject to the Remuneration Tribunal Act 1973.

54DLeave of absence#

(1)The TPS Director has the recreation leave entitlements that are determined by the Remuneration Tribunal.

(2)The Minister may grant the TPS Director leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.

54ERestrictions on outside employment#

The TPS Director must not engage in paid employment outside the duties of his or her office without the Minister’s approval.

54FDisclosure of interests#

The TPS Director must give written notice to the Minister of all interests, pecuniary or otherwise, that the TPS Director has or acquires that could conflict with the proper performance of the TPS Director’s functions.

54GResignation#

(1)The TPS Director may resign his or her appointment by giving the Minister a written resignation.

(2)The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.

54HTermination of appointment#

(1)The Minister may terminate the appointment of the TPS Director for:

(a)misbehaviour; or

(b)physical or mental incapacity.

(2)The Minister may terminate the appointment of the TPS Director if:

(a)the TPS Director:

(i)becomes bankrupt; or

(ii)applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

(iii)compounds with his or her creditors; or

(iv)makes an assignment of his or her remuneration for the benefit of his or her creditors; or

(b)the TPS Director is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or

(c)the TPS Director engages, except with the Minister’s approval, in paid employment outside the duties of his or her office (see section 54E); or

(d)the TPS Director fails, without reasonable excuse, to comply with section 54F (disclosure of interests).

54JOther terms and conditions#

The TPS Director holds office on the terms and conditions (if any) in relation to matters not covered by this Division that are determined by the Minister.

54KActing TPS Director#

The Minister may appoint a person to act as the TPS Director:

(a)during a vacancy in the office of the TPS Director (whether or not an appointment has previously been made to the office); or

(b)during any period, or during all periods, when the TPS Director is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.

Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.

54LConsultants#

The TPS Director may, on behalf of the Commonwealth, engage consultants to assist in the performance of the TPS Director’s functions.

54MIndemnity#

(1)The TPS Director is not personally subject to any liability to any person (other than the Commonwealth) in respect of anything done, or omitted to be done, in good faith in the exercise or performance of powers or functions under this Act or the Education Services for Overseas Students (TPS Levies) Act 2012.

(2)However, this section does not affect the operation of the Privacy Act 1988.

54NApplication of finance law#

For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013), the TPS Director is an official of the Department.

Division 4 · TPS Advisory Board

Subdivision A · Appointment of Board members

55AEstablishment#

The TPS Advisory Board is established by this section.

Note: The members of the TPS Advisory Board are also members of the VSL Tuition Protection Fund Advisory Board under the VET Student Loans Act 2016 and members of the Higher Education Tuition Protection Fund Advisory Board under the Higher Education Support Act 2003.

55BFunction of the Board#

The Board’s function is, either on its own initiative or at the request of the TPS Director, to provide advice and make recommendations to the TPS Director in relation to the making of a legislative instrument each year under subsections 9(3) and 10(2) of the Education Services for Overseas Students (TPS Levies) Act 2012.

55CMembership#

(1)The Board consists of the following members:

(a)a representative from each of the following agencies:

(i)the Department;

(ia)the Department administered by the Minister administering the VET Student Loans Act 2016;

(ii)the Department whose Minister administers the Public Governance, Performance and Accountability Act 2013;

(iii)the Department administered by the Immigration Minister;

(iv)the Australian Government Actuary;

(v)the Australian Prudential Regulation Authority;

(b)up to 7 other members.

Requirements for Board members appointed under paragraph (1)(b)

(2)A person is not eligible for appointment as a Board member under paragraph (1)(b) unless the Minister is satisfied that he or she has qualifications or experience that the Minister considers relevant to the performance of the Board’s function.

(2A)In appointing a Board member under paragraph (1)(b), the Minister must ensure that the Board members appointed under that paragraph, as a group, have qualifications or experience relevant to the operations of providers from across the education and training sectors.

Chair and Deputy Chair

(3)The Minister must appoint, in writing, one of the Board members to be the Chair, and another Board member to be the Deputy Chair.

55DAppointment of Board members#

(1)Board members are to be appointed by the Minister by written instrument.

Note: Board members are eligible for reappointment: see section 33AA of the Acts Interpretation Act 1901.

(2)A Board member holds office for the period specified in the instrument of appointment. The period must not exceed 2 years.

(3)A Board member is to be appointed on a part-time basis.

55ERemuneration and allowances#

(1)A Board member appointed under paragraph 55C(1)(b) is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, such a Board member is to be paid the remuneration that is prescribed by the regulations.

(2)A Board member appointed under paragraph 55C(1)(b) is to be paid the allowances that are prescribed by the regulations.

(3)This section has effect subject to the Remuneration Tribunal Act 1973.

55FLeave of absence#

Chair

(1)The Minister may grant leave of absence to the Chair on the terms and conditions that the Minister determines.

Other members

(2)The Chair may grant leave of absence to any other Board member on the terms and conditions that the Chair determines.

55GRestrictions on outside employment#

A Board member must not engage in any paid employment that, in the Minister’s opinion, conflicts or may conflict with the proper performance of his or her duties.

55HDisclosure of interests#

A Board member must give written notice to the Minister of all interests, pecuniary or otherwise, that the member has or acquires that could conflict with the proper performance of the member’s functions.

55JDisclosure of interests to the Board#

(1)A Board member who has an interest, pecuniary or otherwise, in a matter being considered or about to be considered by the Board must disclose the nature of the interest to a meeting of the Board.

(2)The disclosure must be made as soon as possible after the relevant facts have come to the Board member’s knowledge.

(3)The disclosure must be recorded in the minutes of the meeting of the Board.

(4)Unless the Board determines otherwise, the Board member:

(a)must not be present during any deliberation by the Board on the matter; and

(b)must not take part in any decision of the Board with respect to the matter.

(5)In addition, the Board member:

(a)must not be present during any deliberation of the Board for the purpose of making a determination under subsection (4); and

(b)must not take part in making the determination.

(6)A determination under subsection (4) must be recorded in the minutes of the meeting of the Board.

55KResignation#

(1)A Board member may resign his or her appointment by giving the Minister a written resignation.

(2)The Chair or Deputy Chair may resign his or her appointment as the Chair or Deputy Chair (as the case requires) without resigning his or her appointment as a Board member.

(3)A resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.

55LTermination#

(1)The Minister may terminate the appointment of a Board member for:

(a)misbehaviour; or

(b)physical or mental incapacity.

(2)The Minister may terminate the appointment of a Board member if:

(a)the Board member:

(i)becomes bankrupt; or

(ii)applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

(iii)compounds with his or her creditors; or

(iv)makes an assignment of his or her remuneration for the benefit of his or her creditors; or

(b)the Board member is absent, except on leave of absence, from 2 consecutive meetings of the Board; or

(c)the Board member engages in paid employment that, in the Minister’s opinion, conflicts or may conflict with the proper performance of his or her duties (see section 55G); or

(d)the Board member fails, without reasonable excuse, to comply with section 55H or 55J (disclosure of interests).

55MOther terms and conditions#

A Board member holds office on the terms and conditions (if any) in relation to matters not covered by this Division that are determined by the Minister.

55NActing appointments#

Acting Board member

(1)The Minister may appoint a person to act as a Board member:

(a)during a vacancy in the office of the Board member, whether or not an appointment has previously been made to the office; or

(b)during any period, or during all periods, when the Board member:

(i)is absent from duty or from Australia; or

(ii)is, for any reason, unable to perform the duties of the office.

Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.

Acting Chair

(2)The Minister may appoint a Board member to act as the Chair if the Deputy Chair is unable to act as the Chair:

(a)during a vacancy in the office of the Chair, whether or not an appointment has previously been made to the office; or

(b)during any period, or during all periods, when the Chair:

(i)is absent from duty or from Australia; or

(ii)is, for any reason, unable to perform the duties of the office.

Subdivision B · Meetings of the TPS Advisory Board

56AConvening meetings#

(1)The Board must hold the meetings that are necessary for the efficient performance of its function.

(2)Meetings are to be held at the times and places that the Chair determines.

Note: See also section 33B of the Acts Interpretation Act 1901, which contains extra rules about meetings by telephone etc.

(3)The Chair:

(a)may convene a meeting; and

(b)must convene at least 2 meetings each calendar year; and

(c)must convene a meeting if requested in writing by:

(i)7 or more other Board members; or

(ii)the Minister.

56BPresiding at meetings#

(1)The Chair must preside at all meetings at which he or she is present.

(2)If the Chair is not present at a meeting, the Deputy Chair must preside.

56CQuorum#

(1)At a meeting of the Board, a quorum is constituted by 6 Board members, one of whom must be either the Chair or the Deputy Chair.

(2)However, if:

(a)section 55J prevents a Board member from participating in the deliberations or decisions of the Board with respect to a particular matter; and

(b)when the Board member leaves the meeting concerned there is no longer a quorum present; and

(c)either the Chair or the Deputy Chair still remains at the meeting;

the remaining Board members at the meeting constitute a quorum for the purpose of any deliberation or decision at that meeting with respect to that matter.

56DVoting at meetings#

(1)A question arising at a meeting is to be determined by a majority of the votes of the Board members present and voting.

(2)The person presiding at a meeting has a deliberative vote and, in the event of an equality of votes, a casting vote.

56EConduct of meetings#

The Board may regulate proceedings at its meetings as it considers appropriate.

56FMinutes#

The Board must keep minutes of its meetings.

56GDecisions without meetings#

(1)The Board is taken to have made a decision at a meeting if:

(a)without meeting, a majority of the Board members entitled to vote on the proposed decision indicate agreement with the decision; and

(b)that agreement is indicated in accordance with the method determined by the Board under subsection (2); and

(c)all the Board members were informed of the proposed decision, or reasonable efforts were made to inform all the members of the proposed decision.

(2)Subsection (1) applies only if the Board:

(a)has determined that it may make decisions of that kind without meeting; and

(b)has determined the method by which Board members are to indicate agreement with proposed decisions.

(3)For the purposes of paragraph (1)(a), a Board member is not entitled to vote on a proposed decision if the Board member would not have been entitled to vote on that proposal if the matter had been considered at a meeting of the Board.

(4)The Board must keep a record of decisions made in accordance with this section.

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.