Contents
Division 1 · Conditions, suspension and cancellation
Subdivision A · Sanctions for non-compliance etc.
83ESOS agency may impose sanctions for non-compliance etc.#
Circumstances in which ESOS agency may take action
(1)The ESOS agency for a registered provider may take one or more of the actions mentioned in subsection (3) against the provider if the agency believes on reasonable grounds that the provider, or an associate or high managerial agent of the provider, is breaching or has breached:
(a)this Act; or
(b)the national code; or
(c)if the ELICOS Standards or Foundation Program Standards apply in relation to the provider—those Standards; or
(1A)The ESOS agency for a registered provider may take one or more of those actions against the provider if the agency believes on reasonable grounds that because of financial difficulty or any other reason the provider might not be able to:
(a)provide courses to its accepted students; or
(b)refund amounts to its accepted students under Division 2 of Part 5.
Note: Section 93 sets out the procedure for taking this action.
(1AA)The ESOS agency for a registered provider must consider any recommendation made by the TPS Director under paragraph 54B(fa) that relates to the provider in deciding whether to take one or more actions against the provider under subsection (1A) of this section.
(1B)The ESOS agency for a registered provider may also take one or more of those actions against the provider (other than an exempt provider) if the agency believes on reasonable grounds that the provider is not fit and proper to be registered.
Note 1: Section 93 sets out the procedure for taking the action.
Note 2: The ESOS agency must have regard to the matters referred to in subsection 7A(2) in deciding whether it believes on reasonable grounds that the provider is not fit and proper to be registered.
(1C)The ESOS agency for a registered provider may also take one or more of those actions against the registered provider if the agency believes on reasonable grounds that the registered provider:
(a)does not have the principal purpose of providing education; or
(b)does not have the clearly demonstrated capacity to provide education of a satisfactory standard; or
(c)has not been providing, or has not provided, education of a satisfactory standard.
Note 1: Section 93 sets out the procedure for taking the action.
Note 2: For when a registered higher education provider has the principal purpose of providing education, see section 5A.
(2)The ESOS agency for a registered provider may also take one or more of those actions against the registered provider for a course if the agency believes on reasonable grounds that a provider that is providing the course with the registered provider is engaging, or has engaged, in misleading or deceptive conduct in connection with:
(a)the recruitment of overseas students or intending overseas students to the course; or
(b)the provision of the course to overseas students.
Note: Section 93 sets out the procedure for taking the action.
(2A)The ESOS agency for a registered provider may also take one or more of those actions against the provider if:
(a)the provider is a registered higher education provider; and
(b)the provider is registered under Part 2 of this Act to provide a course at one or more locations; and
(d)either:
(i)the provider ceases to be a registered higher education provider in relation to the course; or
(2B)The ESOS agency for a registered provider may also take one or more of those actions against the provider if:
(a)the provider is a registered VET provider; and
(b)the provider is registered under Part 2 of this Act to provide a course at one or more locations; and
(d)either:
(i)the provider ceases to be a registered VET provider in relation to the course; or
(2C)The ESOS agency for a registered provider may also take one or more of those actions against the provider if:
(a)the provider is an approved school provider in relation to a State; and
(b)the provider is registered to provide a course at one or more locations in the State; and
(c)the provider ceases to be an approved school provider in relation to the provision of the course at those locations in the State.
Note: Section 93 (which is about the procedure for action) does not apply in relation to this subsection.
Actions the ESOS agency may take
(3)The actions are:
(a)to impose one or more conditions on the registered provider’s registration either generally or in respect of any one or more specified courses for any one or more specified locations (see section 86);
(b)to suspend the registered provider’s registration for any one or more specified courses for any one or more specified locations (see section 95);
(c)to cancel the registered provider’s registration for any one or more specified courses for any one or more specified locations.
Actions not limited to particular courses
(4)The ESOS agency for a registered provider may take action under this section against the provider’s registration for a particular course for a location even if the conduct, or the situation, that results in the agency taking the action does not relate to that particular course.
84ESOS agency may take further action#
The ESOS agency for a registered provider may take action under section 83 even if other action has already been taken under that section in relation to the same matter.
85ESOS agency may take action for breaches occurring before provider was registered#
The ESOS agency for a registered provider may take action against the provider under section 83 even if the provider was not yet registered at the time of the relevant breach.
86Examples of conditions#
(1)Examples of the conditions that the ESOS agency for a registered provider may impose under section 83 are conditions that:
(a)there be no net increase, or only a limited net increase, in the number of overseas students enrolled with the provider;
(b)the provider enrol only a limited number of new overseas students;
(c)the provider not accept any new students from a specified country;
(d)the provider not deal with a specified education agent in relation to overseas students or intending overseas students;
(2)The examples do not limit the kinds of condition that the ESOS agency for a registered provider may impose.
87Breaches of this Act etc. by approved school providers#
(1)This section applies if:
(a)a registered provider is an approved school provider; and
(b)the ESOS agency for the provider has information suggesting that the provider may have breached:
(i)this Act; or
(ii)the national code; or
(iii)if the ELICOS Standards or Foundation Program Standards apply in relation to the provider—those Standards; and
(c)the source of the information is not the designated State authority for the provider.
(2)Before the ESOS agency takes any action under this Act in relation to the possible breach, the agency:
(a)must notify the designated State authority of the possible breach; and
(b)may request the authority to investigate the matter or take any other suitable action.
(3)Despite subsection (2), the ESOS agency may take any action under this Act in relation to the possible breach if, in the agency’s opinion, the circumstances of the possible breach require urgent action.
Subdivision C · Automatic suspension and cancellation
89Automatic suspension if registered provider is no longer fit and proper#
ESOS agency no longer satisfied registered provider is fit and proper
(1)If the ESOS agency for a registered provider (other than an exempt provider) is no longer satisfied that the provider is fit and proper to be registered, the registration of the provider is suspended for all courses for all locations by force of this subsection.
Note: Section 95 sets out the effect of the suspension.
Designated State authority no longer satisfied that registered provider is fit and proper
(2)If:
(a)a registered provider (other than an exempt provider) is an approved school provider in relation to a State; and
(b)the designated State authority for the provider tells the ESOS agency for the provider that the authority is no longer satisfied that the provider is fit and proper to be registered;
Note: Section 95 sets out the effect of the suspension.
Notification of suspension
(3)If the registration of a provider has been suspended by force of subsection (1) or (2), the ESOS agency for the provider must, in writing, notify the following of the suspension:
(a)the provider;
(b)if the ESOS agency considers it is appropriate to inform another ESOS agency for a provider of the suspension—the other ESOS agency.
Removal of suspension
(4)If:
(a)the registration of a provider has been suspended by force of subsection (1) or (2); and
(b)either:
(i)in the case of a suspension by force of subsection (1)—the ESOS agency for the provider becomes satisfied that the provider is fit and proper to be registered again; or
(ii)in the case of a suspension by force of subsection (2)—the designated State authority for the provider tells the ESOS agency for the provider that the authority has become satisfied that the provider is fit and proper to be registered again;
the agency may give the provider a notice that sets out the effect of subsection (5).
(5)If the ESOS agency for a provider gives the provider a notice under subsection (4), the suspension of the provider’s registration is removed by force of this subsection when the provider has paid the associated reinstatement fee.
Note 1: The ESOS agency and designated State authority must have regard to the matters referred to in subsection 7A(2) in deciding whether they are satisfied that the provider is fit and proper to be registered.
Note 2: For the amount of the associated reinstatement fee, see section 171.
90Automatic suspension for non-payment of levy or charge#
(1)The registration of a provider who:
(a)fails to comply with a reminder notice given under section 53D; or
(b)fails to comply with a notice given under section 23;
is suspended by force of this subsection for all courses for all locations.
Note: Section 95 sets out the effect of suspension.
Removal of suspension
(2)The suspension is removed by force of this subsection when the provider has paid:
(a)the amount owing; and
(b)the associated late payment penalty; and
(c)the associated reinstatement fee.
Note: For the amount of the associated reinstatement fee, see section 171.
92Automatic cancellation for bankruptcy#
The registration of a provider is cancelled for all courses for all locations by force of this section if:
(a)a provider who is an individual becomes bankrupt; or
(b)a winding-up order is made in respect of a provider that is a body corporate.
92AAutomatic cancellation if provider does not provide a course in 12 month period#
(1)This section applies in relation to a registered provider if:
(a)the provider is not an approved school provider; and
(2)Subject to section 92B, the registration of the provider is cancelled for all courses for all locations at the end of the measurement period by force of this subsection.
(3)The ESOS agency for the provider must:
92BExtension of measurement period#
Registered provider may apply for extension of measurement period
(1)A registered provider may apply to the ESOS agency for the provider to extend the measurement period referred to in paragraph 92A(1)(b).
(2)An application must be made at least 90 days before the measurement period would otherwise end.
(3)An application must be in a form (if any) approved by the ESOS agency for the provider.
Extension
(4)If an application is made, the ESOS agency for the provider may, in writing, extend the measurement period in relation to the provider.
(5)The ESOS agency may extend a measurement period in relation to a registered provider under subsection (4) more than once.
(6)The total period of all extensions of a measurement period in relation to a registered provider under subsection (4) must not exceed 12 months.
Subdivision D · Common rules for conditions, suspension and cancellation
93Procedure for taking action etc.#
(1)This section applies if:
(a)both of the following apply:
(i)the ESOS agency for a provider or registered provider is considering imposing a condition on, or varying a condition of, the provider’s registration under section 10B;
(ii)if the provider is an approved school provider—the condition is not a condition recommended in a DSA assessment certificate, or DSA recommendation certificate, given to the agency by the designated State authority for the provider; or
(b)the ESOS agency for a registered provider is considering taking action under Subdivision A of this Division (other than subsection 83(2A), (2B) or (2C)); or
(c)the ESOS agency for a provider is considering not giving the provider a notice under subsection 89(4).
(2)Before the ESOS agency for the provider or registered provider decides to do the thing referred to in paragraph (1)(a), (b) or (c), the agency must give the provider a written notice that:
(a)states that the agency is considering doing that thing; and
(b)requests the provider to give the agency written submissions about the matter within at least the period referred to in subsection (3).
(3)The period is:
(a)if paragraph (1)(a) applies—72 hours; or
(b)if paragraph (1)(b) applies:
(i)if the agency is of the opinion that the circumstances require urgent action—24 hours; or
(ii)otherwise—72 hours; or
(c)if paragraph (1)(c) applies—7 days.
(4)If, after considering any submissions received within the period mentioned in paragraph (2)(b), the ESOS agency for the provider or registered provider considers that the agency should decide to do the thing referred to in paragraph (1)(a), (b) or (c), the agency:
(a)may so decide; and
(b)must give the provider written notice of the decision.
94ESOS agency may remove condition of registration or suspension of registration#
Removal of condition
(1)If a condition is imposed on a provider’s registration, the ESOS agency for the provider may, at any time, give the provider a written notice that:
(a)specifies the condition; and
(b)sets out the effect of subsection (2).
(2)If the ESOS agency for a provider has given the provider a notice under subsection (1), the condition specified in the notice is removed by force of this subsection when the provider has paid the associated reinstatement fee.
Note: For the amount of the associated reinstatement fee, see section 171.
Removal of suspension
(3)If a provider’s registration is suspended, the ESOS agency for the provider may at any time give the provider a written notice that sets out the effect of subsection (4).
(4)If the ESOS agency for a provider has given the provider a notice under subsection (3), the suspension is removed by force of this subsection when the provider has paid the associated reinstatement fee.
Note: For the amount of the associated reinstatement fee, see section 171.
95Effect of suspension#
(1)A provider whose registration is suspended for a course for a location under this Division must not:
(a)do any thing for the purpose of recruiting or enrolling overseas students or intending overseas students for the course at the location; or
(b)subject to subsection (3), solicit or accept any money from an overseas student or an intending overseas student for the course at the location; or
(c)if an accepted student of the provider has not begun the course—permit the student to begin the course at the location.
(2)The provider is still registered for the course for the location for all other purposes.
(3)The ESOS agency for a provider whose registration is suspended may give the provider a notice in writing that:
(4)A notice under subsection (3) is not a legislative instrument.
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.