This section and section 1 commence on the day on which this Act receives the Royal Assent.

The remaining provisions of this Act commence on a day or days to be fixed by Proclamation.

However, if a provision of this Act does not commence under subsection (2) within the period of 6 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.

This Act binds the Crown in each of its capacities.

However, nothing in this Act makes the Crown in any capacity liable to be prosecuted for an offence.

Subject to subsection (2), this Act applies in relation to Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands as if:

Paragraph (1)(a) does not apply in relation to the following provisions:

The Territories Minister may, by signed writing, delegate all or any of his or her functions or powers as a designated State authority under this Act to:

(1) A course is a course of education or training that satisfies one or more of the following:

(2) The Minister may, by legislative instrument, determine that a course of education or training is a course.

(3) The Minister may, by legislative instrument, determine that a course of education or training is not a course.

In this Act:

(2) For the purposes of subsection (1), the question of whether companies are related to each other is to be determined in the same manner as the question of whether bodies corporate (within the meaning of the Corporations Act 2001) are related to each other is determined under section 50 of the Corporations Act 2001.

Substantial ownership interest

(3) For the purposes of subsection (1), a person holds a substantial ownership interest in a company if the total of all amounts paid on the shares in the company in which the person holds interests equals or exceeds 15% of the total of all amounts paid on all shares in the company.

Interests in shares

For the purposes of subsection (3):

(5) If, under this section, one person is an associate of a second person, then the second person is an associate of the first person.

Chains of associates

If, under this section:

In this section:

child: without limiting who is a child of a person for the purposes of this section, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.

de facto partner of a person has the meaning given by the Acts Interpretation Act 1901.

parent: without limiting who is a parent of a person for the purposes of this section, someone is the parent of a person if the person is his or her child because of the definition of child in this section.

person includes a provider.

Certain family relationships

(8) For the purposes of paragraph (d) of the definition of associate in subsection (1), if one person is the child of another person because of the definition of child in this section, relationships traced to or through the person are to be determined on the basis that the person is the child of the other person.

(1) The following table sets out who is an authorised officer of the ESOS agency for a registered provider:

(2) If the ESOS agency for a registered provider is the Secretary, the agency may, in writing, appoint a person as an authorised officer of the agency if:

(3) If the ESOS agency for a registered provider is an entity that is covered by item 4 of the table in subsection (1), the agency may, in writing, appoint a person as an authorised officer of the agency if:

(1) A DSA assessment certificate is a certificate given by the designated State authority for an approved school provider that:

(2) A DSA recommendation certificate is a certificate given by the designated State authority for an approved school provider that:

A DSA assessment certificate or DSA recommendation certificate must be in the form approved, in writing, by the ESOS agency for the approved school provider to which the certificate relates.

(1) Subject to subsections (3) and (4), the following table sets out the ESOS agency for a provider or registered provider:

(2) The Minister may, by legislative instrument, determine that an entity is the ESOS agency for a provider or registered provider covered by item 4 or 5 of the table in subsection (1).

If a provider or registered provider is covered by more than one item of the table in subsection (1), the Minister may, by legislative instrument:

If subparagraph 83(2A)(d)(i) or (2B)(d)(i) or paragraph 83(2C)(c) applies in relation to a registered provider, disregard that subparagraph or paragraph in determining the ESOS agency for the provider for the purposes of subsection 83(2A), (2B) or (2C).

(1) A provider or registered provider is an exempt provider if:

To avoid doubt, a private corporate body established in connection with a provider covered by paragraph (1)(a) or (b) is not itself, by virtue of that connection alone, a provider covered by that paragraph.

(1) A provider is:

The Minister may, by legislative instrument, specify a person or entity for the purposes of paragraph (1)(e).

This section applies if it is necessary for the purposes of a provision of this Act for:

In deciding the matter, the ESOS agency or designated State authority must have regard to:

The Minister may, by legislative instrument, make a determination specifying matters for the purposes of paragraph (2)(ga).

(3) A related person of a provider or registered provider is:

(4) Nothing in subsection (2) affects the operation of Crimes Act 1914 (which deals with spent convictions).Part VIIC of the

If:

This Act continues to apply in relation to a person or entity that was a registered provider as if the person or entity were still a registered provider.

Subsection (1) applies:

A person commits an offence if:

Subsection (1) does not apply if the provision, offer, inviting or holding out is in accordance with an arrangement that the person has with a registered provider for that particular course for that particular location.

Defence: surveys etc. to assess demand for a course

Subsection (1) does not apply as a result of subparagraph (1)(a)(iv) if:

Subject to section 14E, a provider may apply to be registered to provide a course or courses at a location or locations to overseas students.

The application must be made to the ESOS agency for the provider.

If a provider makes an application under section 9, the ESOS agency for the provider may register the provider to provide a course or courses at a location or locations if the provider meets the registration requirements.

The ESOS agency for the provider must use a risk management approach when considering whether to register the provider.

If:

The notice must set out:

If the provider is an approved school provider, the ESOS agency for the provider must, in determining the provider’s period of registration, have regard to the period of registration recommended in the DSA assessment certificate given to the agency by the designated State authority for the provider.

Subdivision B—Conditions of registration

The ESOS agency for a provider or registered provider may at any time:

The ESOS agency for the provider or registered provider must use a risk management approach in deciding whether to impose, vary or remove a condition.

A condition may be:

If the ESOS agency for a registered provider does either of the following after the commencement of the provider’s registration:

If:

In deciding whether to impose the condition under section 10B, the ESOS agency for the registered provider must have regard to any advice of the designated State authority for the provider.

This section does not limit section 10B.

Subdivision C—Renewal of registration

A registered provider may apply to renew the provider’s registration to provide a course or courses at a location or locations to overseas students.

The application must be:

The ESOS agency for a registered provider may, by legislative instrument, determine the period within which applications under this section must be made.

If a registered provider makes an application under section 10D, the ESOS agency for the provider may renew the provider’s registration to provide a course or courses at a location or locations if the provider meets the registration requirements.

The ESOS agency for the registered provider must use a risk management approach when considering whether to renew the registration of the provider.

If:

The notice must set out:

If the registered provider is an approved school provider, the ESOS agency for the provider must, in determining the provider’s period of registration, have regard to the period of registration recommended in the DSA assessment certificate given to the agency by the designated State authority for the provider.

Subdivision D—Changes to registration etc.

Subject to section 14F, a registered provider may apply to add one or more courses at one or more locations to the provider’s registration.

The application:

If a registered provider makes an application under section 10H to add one or more courses at one or more locations to the provider’s registration, the ESOS agency for the provider may add those courses at those locations to the provider’s registration if the provider meets the registration requirements.

The ESOS agency for the registered provider must use a risk management approach when considering whether to add one or more courses at one or more locations to the provider’s registration.

If the ESOS agency for the registered provider decides to add one or more courses at one or more locations to the provider’s registration, the addition does not affect the provider’s period of registration.

If:

The notice must set out:

The ESOS agency for a registered provider that is a registered higher education provider may extend the provider’s period of registration for the purpose of aligning the period with the provider’s period of registration under the TEQSA Act.

The ESOS agency for a registered provider that is a registered VET provider may extend the provider’s period of registration for the purpose of aligning the period with the provider’s period of registration under the NVETR Act.

The ESOS agency for a registered provider that is an approved school provider may extend the provider’s period of registration for the purpose of aligning the period with the provider’s period of approval as an approved school provider.

The ESOS agency for a registered provider must not extend a particular period of registration under subsection (1), (2) or (3) more than once.

The ESOS agency for a registered provider must use a risk management approach when considering whether to extend the provider’s period of registration.

This section applies if:

The registered provider’s registration for the course at the location continues until:

Despite subsection (2), the registered provider must not do anything for the purpose of recruiting or enrolling overseas students, or intending overseas students, for the course at the location after the day on which the provider’s registration would have expired but for this section.

Subdivision E—Other registration provisions

(1) A provider or registered provider meets the registration requirements if:

(2) A provider satisfies this subsection if the provider has provided one or more courses for consecutive study periods totalling at least 2 years at a location or locations to students in Australia other than overseas students.

For the purposes of subsection (2), a break that ordinarily occurs, or could reasonably be expected to ordinarily occur, during or between one or more study periods:

This section applies in relation to:

The application must be:

The provider or registered provider may withdraw the application at any time before a decision is made on the application by giving written notice to the ESOS agency for the provider.

Consideration of application

When considering the application, the ESOS agency for the provider or registered provider may:

Subsection (4) does not limit the things that the ESOS agency for the provider or registered provider may do when considering the application.

This section applies in relation to:

If the ESOS agency for the provider or registered provider needs further information or documents to decide the application, the agency may request any or all of the following to give the agency the further information or documents:

The request:

The ESOS agency for the provider or registered provider may decline to consider, or further consider, the application until the further information or documents are given.

If the ESOS agency for a provider or registered provider gives the provider a notice under section 10A, 10G or 10K, the agency must give a copy of the notice to:

If the ESOS agency for a provider that is an approved school provider refuses to register the provider under section 10, the agency must give a copy of the notice of the decision given to the provider under section 169AC to the designated State authority for the provider.

Notice of registration conditions etc.

If the ESOS agency for a registered provider:

The TPS Director may request a provider who is not yet registered to give the TPS Director information that is relevant to determining the provider’s amount of TPS levy at any time before the provider is registered.

The TPS Director does not have to determine the amount of the provider’s TPS levy under section 53A until the provider complies with the request.

This section applies if:

Before deciding the application for registration, the ESOS agency must:

The Secretary must cause a Register to be kept for the purposes of this Act.

The Register is called the Commonwealth Register of Institutions and Courses for Overseas Students.

The Secretary may cause the contents of all or part of the Register to be made available to the public by electronic or other means.

Contents of the Register

The Secretary must cause the following information to be entered on the Register in relation to each provider’s registration:

The Secretary may cause any other information he or she considers appropriate to be entered on the Register in relation to a provider’s registration.

The Secretary must ensure that the Register is kept up-to-date.

Without limiting subsection (1), the Secretary must cause the Register to be altered appropriately if:

However, a failure to keep the Register up-to-date does not affect the validity of any action referred to in subsection (2).

The Minister may, by legislative instrument, determine that an ESOS agency for a provider is not required to deal with applications made under section 9 until after a day specified in the instrument.

Between the day an instrument made under subsection (1) commences and the day specified in the instrument, the ESOS agency for the provider is not required to do any processing activity in relation to an application to which the instrument applies.

ESOS agency must not do any processing activity

The Minister may, by legislative instrument, determine that an ESOS agency for a provider must not deal with applications made under section 9 until after a day specified in the instrument.

Between the day an instrument made under subsection (3) commences and the day specified in the instrument, the ESOS agency for the provider must not do any processing activity in relation to an application to which the instrument applies.

Instruments under this section

The day specified in an instrument made under subsection (1) or (3) must not be more than 12 months after the day the instrument commences.

An instrument made under subsection (1) or (3) of this section may be expressed to apply to:

(7) Despite subsection 14(2) of the Legislation Act 2003, an instrument made under subsection (1) or (3) of this section may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in an instrument or other writing as in force or existing from time to time.

(8) Section 42 (disallowance) of the Legislation Act 2003 does not apply to a legislative instrument made under subsection (1) or (3).

The Minister may, by legislative instrument, determine that an ESOS agency for a registered provider is not required to deal with applications made under section 10H until after a day specified in the instrument.

Between the day an instrument made under subsection (1) commences and the day specified in the instrument, the ESOS agency for the provider is not required to do any processing activity in relation to an application to which the instrument applies.

ESOS agency must not do any processing activity

The Minister may, by legislative instrument, determine that an ESOS agency for a registered provider must not deal with applications made under section 10H until after a day specified in the instrument.

Between the day an instrument made under subsection (3) commences and the day specified in the instrument, the ESOS agency for the provider must not do any processing activity in relation to an application to which the instrument applies.

Instruments under this section

The day specified in an instrument made under subsection (1) or (3) must not be more than 12 months after the day the instrument commences.

An instrument made under subsection (1) or (3) of this section may be expressed to apply to:

(7) Despite subsection 14(2) of the Legislation Act 2003, an instrument made under subsection (1) or (3) of this section may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in an instrument or other writing as in force or existing from time to time.

(8) Section 42 (disallowance) of the Legislation Act 2003 does not apply to a legislative instrument made under subsection (1) or (3).

The Minister may, by legislative instrument, determine that no applications may be made under section 9 until after a day specified in the instrument.

An application under section 9 is invalid if:

The day specified in an instrument made under subsection (1) must not be more than 12 months after the day the instrument commences.

An instrument made under subsection (1) of this section may be expressed to apply to all applications that may be made under section 9 or one or more classes of application that may be made under that section.

(5) Despite subsection 14(2) of the Legislation Act 2003, an instrument made under subsection (1) of this section may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in an instrument or other writing as in force or existing from time to time.

(6) Section 42 (disallowance) of the Legislation Act 2003 does not apply to a legislative instrument made under subsection (1).

The Minister may, by legislative instrument, determine that no applications may be made under section 10H until after a day specified in the instrument.

An application under section 10H is invalid if:

The day specified in an instrument made under subsection (1) must not be more than 12 months after the day the instrument commences.

An instrument made under subsection (1) of this section may be expressed to apply to all applications that may be made under section 10H or one or more classes of application that may be made under that section.

(5) Despite subsection 14(2) of the Legislation Act 2003, an instrument made under subsection (1) of this section may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in an instrument or other writing as in force or existing from time to time.

(6) Section 42 (disallowance) of the Legislation Act 2003 does not apply to a legislative instrument made under subsection (1).

Before the Minister makes an instrument under any of sections 14C, 14D, 14E or 14F, the Minister must consult with each of the following:

A failure to consult as required by subsection (1) does not affect the validity of an instrument made under section 14C, 14D, 14E or 14F.

(3) If the Minister does not administer the National Vocational Education and Training Regulator Act 2011, the Minister must not make an instrument under any of sections 14C, 14D, 14E or 14F without the written agreement of the Minister who administers that Act.

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:

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

If:

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.

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

A registered provider must notify the ESOS agency for the provider of:

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 registered provider must notify the ESOS agency for the provider if any of the following events occur:

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

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.

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:

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.

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

(1A) The applicable number of days is:

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.

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.

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.

Unincorporated registered providers

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.

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.

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

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.

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

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:

If:

A record under subsection (2B) must be:

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.

Unincorporated registered providers

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

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.

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

A registered provider must:

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

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

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

(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.

The request must:

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

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

The registered provider must comply with the request before:

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

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

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

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

(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:

(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:

If:

A notice under this section is not a legislative instrument.

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

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.

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.

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

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.

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.

Subsection (1) does not apply if:

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.

Account to be maintained with an Australian ADI

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

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.

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

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):

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

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.

To avoid doubt, the protected amount:

A person commits an offence if:

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

Subsection (1) is an offence of strict liability.

The Minister may make a national code by legislative instrument.

The code is to be called the National Code of Practice for Providers of Education and Training to Overseas Students.

The Minister must ensure as far as practicable that there is a national code in force at all times.

The Secretary must give each registered provider written notice of:

A notice given under subsection (1) is not a legislative instrument.

However, a breach of this section does not affect the validity of the national code or an amendment of the code.

The regulations may make it an offence to breach prescribed provisions of the national code.

The offence must be punishable by a fine of no more than 10 penalty units.

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

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

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).

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.

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

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.

Notifying the ESOS agency and TPS Director

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.

The notice must include the following:

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

Notice requirements

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

Legislative instrument

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

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.

The provider discharges its obligations to the student if:

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

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

Providing a refund

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.

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

A person commits an offence if:

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

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.

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.

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

The notice must include the following:

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

Legislative instrument

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

Subdivision B—Student defaults

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

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).

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.

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.

Provider to pay refund

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

The provider must pay the refund to the following 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

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

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

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

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

Legislative instrument

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

A person commits an offence if:

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

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

A person commits an offence if:

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

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.

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

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.

The notice must include the following:

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

Legislative instrument

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

Subdivision C—Recovering an amount

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).

If:

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

This section applies if the TPS Director determines that:

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

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.

An acceptance must:

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

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.

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:

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

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

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.

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.

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:

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

If:

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

If:

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

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.

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

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

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.

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).

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

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

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.

The purposes of the OSTF are as follows:

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

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.

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

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

The notice must also include:

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

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.

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

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.

The reminder notice must:

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

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

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

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

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

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.

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.

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

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.

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

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.

The Minister may terminate the appointment of the TPS Director for:

The Minister may terminate the appointment of the TPS Director if:

(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.

The Board consists of the following members:

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.

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

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

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

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

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

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.

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.

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

Other members

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

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.

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

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

Unless the Board determines otherwise, the Board member:

In addition, the Board member:

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

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

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.

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.

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

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

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

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

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

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

The Chair:

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

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

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.

However, if:

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

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

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

Subsection (1) applies only if the Board:

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.

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

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:

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:

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.

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:

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:

The ESOS agency for a registered provider may also take one or more of those actions against the provider if:

The ESOS agency for a registered provider may also take one or more of those actions against the provider if:

The ESOS agency for a registered provider may also take one or more of those actions against the provider if:

The actions are:

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.

Examples of the conditions that the ESOS agency for a registered provider may impose under section 83 are conditions that:

The examples do not limit the kinds of condition that the ESOS agency for a registered provider may impose.

This section applies if:

Before the ESOS agency takes any action under this Act in relation to the possible breach, the agency:

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

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.

Designated State authority no longer satisfied that registered provider is fit and proper

If:

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:

If:

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.

The registration of a provider who:

The suspension is removed by force of this subsection when the provider has paid:

This section applies in relation to a registered provider if:

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.

The ESOS agency for the provider must:

A registered provider may apply to the ESOS agency for the provider to extend the measurement period referred to in paragraph 92A(1)(b).

An application must be made at least 90 days before the measurement period would otherwise end.

An application must be in a form (if any) approved by the ESOS agency for the provider.

Extension

If an application is made, the ESOS agency for the provider may, in writing, extend the measurement period in relation to the provider.

The ESOS agency may extend a measurement period in relation to a registered provider under subsection (4) more than once.

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

This section applies if:

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:

The period is:

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:

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:

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.

Removal of suspension

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).

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.

A provider whose registration is suspended for a course for a location under this Division must not:

The provider is still registered for the course for the location for all other purposes.

The ESOS agency for a provider whose registration is suspended may give the provider a notice in writing that:

A notice under subsection (3) is not a legislative instrument.

The Minister may, by legislative instrument, specify one or more classes of courses for the purposes of this section if the Minister is satisfied on reasonable grounds that:

In considering whether to make such an instrument, the Minister must have regard to all of the following matters:

Subsection (2) does not limit the matters to which the Minister may have regard in considering whether to make an instrument under subsection (1).

Specified courses

Without limiting subsection (1) or any other provision of this Act, a class of courses may be specified by reference to any matter, including, but not limited to, any of the following:

(5) Despite subsection 14(2) of the Legislation Act 2003, an instrument made under subsection (1) of this section may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in an instrument or other writing as in force or existing from time to time.

Consultation

The Minister must consult with each of the following before the Minister makes an instrument under subsection (1):

A failure to consult as required by subsection (6) does not affect the validity of an instrument made under subsection (1).

For the purposes of subsection (6), the Minister may, by legislative instrument:

If:

If the Minister makes an instrument under subsection (1), the Minister must, on the first sitting day after doing so, table a statement of the Minister’s reasons for making the instrument in each House of the Parliament.

This section applies if:

The application is taken not to have been made in relation to the course.

This section applies if:

The provider’s registration for the course is suspended for all locations by force of this subsection.

A provider whose registration is suspended for a course under this section must not:

The provider is still registered for the course for the location for all other purposes.

This section applies if:

This section also applies if:

The provider’s registration for the course is cancelled for all locations by force of this subsection.

The Immigration Minister may give an Immigration Minister’s suspension certificate to a registered provider if, in the Immigration Minister’s opinion, a significant number of overseas students or intending overseas students in respect of:

In considering whether to give such a certificate, the Immigration Minister may have regard to any of the following:

Subsection (2) does not limit the matters to which the Immigration Minister may have regard in considering whether to give a certificate.

For the purposes of paragraph (2)(a), it is immaterial whether or not the fraudulent statements or documents were a reason for refusing the application.

Power to be exercised personally

The power to give an Immigration Minister’s suspension certificate must be exercised by the Immigration Minister personally.

Before issuing the certificate, the Immigration Minister must give the registered provider a written notice:

After considering any submission received within that period, the Immigration Minister may give the registered provider the certificate if the Immigration Minister still considers that he or she should do so.

Tabling certificate in Parliament

The Immigration Minister must table a copy of the certificate in both Houses of Parliament within 15 sitting days of giving it to the provider.

Delegating function of giving written notice

The Immigration Minister may, by signed writing, delegate to the Secretary of his or her Department, or to an SES employee or acting SES employee in that Department, the function of giving notices under subsection (1).

An Immigration Minister’s suspension certificate remains in effect for the period of 6 months beginning on the day that it says it takes effect.

The Immigration Minister may revoke an Immigration Minister’s suspension certificate at any time by giving the registered provider written notice.

A person commits an offence if the person:

The provider is still registered for all other purposes.

In this section:

prescribed non-citizen means a non-citizen (within the meaning of the Migration Act 1958) who is of a kind prescribed for the purposes of this section in regulations made under that Act.

Unless, by the end of the period for which an Immigration Minister’s suspension certificate is in effect, the registered provider has satisfied the Immigration Minister that he or she should not be given a further certificate, the Immigration Minister may give the provider a further Immigration Minister’s suspension certificate.

The Immigration Minister does not have to follow the procedure in subsections 98(1) and (2) in order to give a further Immigration Minister’s suspension certificate.

Tabling further certificate in Parliament

However, the Immigration Minister must table a copy of the further certificate in both Houses of Parliament within 15 sitting days of giving it to the provider.

Application of this section to further certificates

This section applies to a further Immigration Minister’s suspension certificate or certificates in the same way as it applies to an original Immigration Minister’s suspension certificate.

The Secretary must cause the Register to be altered appropriately if the Immigration Minister has given or revoked an Immigration Minister’s suspension certificate (or a further such certificate).

However, a failure to do so does not affect the validity of the certificate or revocation.

This section applies if a computer system is established by the Secretary for the purpose of receiving and storing information about accepted students and former accepted students that is given under section 19.

The Secretary may give any person access to the system for the purposes of this Act.

Access may be given subject to conditions

The access may be given subject to conditions that the Secretary determines in writing relating to the use of the system and of the means of obtaining access to the system.

The Secretary must give the person a copy of the conditions.

Offence: breaching conditions

The person commits an offence if the person:

The ESOS agency for a registered provider may conduct an audit of the registered provider for the purpose of determining whether the registered provider is complying, or has complied, with:

(2) An audit conducted under subsection (1) is to be known as a compliance audit.

If a compliance audit of a registered provider is being conducted by the ESOS agency for the registered provider, the registered provider must:

This section applies if the ESOS agency for a registered provider reasonably believes that a relevant individual of the provider has, or has access to, information or documents that are relevant to a monitoring purpose.

The ESOS agency may give the relevant individual a written notice requiring him or her to:

If the information or documents are in a particular form then the production notice may require the information or documents to be given in that form.

This section applies if the TPS Director reasonably believes that a relevant individual of a registered provider has, or has access to, information or documents that are relevant to the performance of the TPS Director’s functions under Part 5 of this Act.

The TPS Director may give the relevant individual a written notice requiring the individual:

If the information or documents are in a particular form then the notice may require the information or documents to be given in that form.

A production notice must:

In so far as the notice covers information or documents:

In so far as the notice covers any other information or documents, the time mentioned in paragraph (1)(c) must be at least 72 hours after the notice is given.

The ESOS agency for a registered provider must give a production notice under section 113 to a relevant individual of the provider:

The TPS Director must give a production notice under section 113A to a relevant individual of a registered provider:

However, if the ESOS agency uses the method in paragraph (1)(c) or the TPS Director uses the method in paragraph (1A)(c), the time mentioned in paragraph 114(1)(c) must be at least 14 days after the notice is given (instead of at least 24 hours or 72 hours).

Subdivision B—Attendance notices

This section applies if the ESOS agency for a registered provider reasonably believes that a relevant individual of the provider has, or has access to, information or documents that are relevant to a monitoring purpose.

The ESOS agency may give the relevant individual written notice requiring the individual to attend before an authorised officer of the agency and answer questions about the matter.

An attendance notice given to a relevant individual of a registered provider must:

An attendance notice may be included in the same document as a production notice, if the notices are being given to the same relevant individual of a registered provider.

Subdivision C—Common rules for production and attendance notices

A person who refuses or fails to comply with a production or attendance notice commits an offence.

However, a person does not commit an offence in relation to a production notice if the person complied with the notice to the extent that it was practicable to do so within the period allowed by the notice.