Part 5, Division 2 · Education Services for Overseas Students Act 2000

Contents

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(b)the student has not withdrawn before the default day.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

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.