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Education Services for Overseas Students Bill 2000

Part 3 Obligations on registered providers

Division 1 General obligations

15   Registered providers must not engage in misleading or deceptive conduct

                   A registered provider must not engage in misleading or deceptive conduct in connection with:

                     (a)  the recruitment of overseas students or intending overseas students; or

                     (b)  the provision of courses to overseas students.

Note:          The Minister may take action under Division 1 of Part 6 against a registered provider that has breached this section.

16   Residency requirement

                   A registered provider must be a resident of Australia.

Note:          The Minister may take action under Division 1 of Part 6 against a registered provider that has breached this section.

17   Registered providers must notify the Secretary of breaches etc. by associates

             (1)  A registered provider must tell the Secretary as soon as practicable if the provider becomes aware that an associate of the provider:

                     (a)  has been convicted of an offence under this Act or the old ESOS Act at any time during the last 5 years; or

                     (b)  has ever had the associate’s registration cancelled or suspended under this Act or the old ESOS Act; or

                     (c)  has ever had an Immigration Minister’s suspension certificate issued in respect of the associate; or

                     (d)  has ever had a condition imposed on the associate’s registration under this Act; or

                     (e)  was involved in the provision of a course by another provider who is covered by paragraph (a), (b), (c) or (d) at the time of any of the events that gave rise to the relevant prosecution or other action.

Note:          The Minister may take action under Division 1 of Part 6 against a registered provider that has breached this section.

No effect on Part VIIC of the Crimes Act

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

18   Only registered providers may receive course money

                   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 be such that the students pay their course money to the registered provider and not directly to the other providers.

Note:          The Minister may take action under Division 1 of Part 6 against a registered provider that has breached this section.

19   Giving information about accepted students

             (1)  A registered provider must give the Secretary the following information within 14 days after the event specified below occurs:

                     (a)  the name and any other prescribed details of each person who becomes an accepted student of that provider;

                     (b)  for each person who becomes an accepted student—the name, starting day and expected duration of the course for which the student is accepted;

                     (c)  the prescribed information about an accepted student who does not begin his or her course when expected;

                     (d)  any termination of studies by an accepted student before the student’s course is completed;

                     (e)  any change in the identity or duration of an accepted student’s course;

                      (f)  any other prescribed matter relating to accepted students.

             (2)  A registered provider must give the Secretary particulars of any breach by an accepted student of a student visa condition relating to attendance or satisfactory academic performance as soon as practicable after the breach occurs.

             (3)  Information required under this section must be given in a form approved by the Secretary. The approved form may be electronic.

Note 1:       The Minister may take action under Division 1 of Part 6 against a registered provider that has breached this section. A breach of this section is also an offence: see section 104.

Note 2:       It is an offence to provide false or misleading information in complying or purporting to comply with this section: see section 108.

Unincorporated registered providers

             (4)  If the registered provider is an unincorporated body, then it is instead the principal executive officer of the provider who must give the Secretary the information as required under this section.

20   Sending students notice of visa breaches

             (1)  A registered provider must send an accepted student of the provider a written notice if the student has breached a student visa condition relating to attendance or satisfactory academic performance.

Note 1:       The Minister may take action under Division 1 of Part 6 against a registered provider that has breached this section. A breach of this section is also an offence: see section 104.

Note 2:       It is an offence to provide false or misleading information in complying or purporting to comply with this section: see section 108.

             (2)  The registered provider must send the notice as soon as practicable after the breach.

             (3)  The notice must be in a form approved by the Secretary of the Immigration Minister’s Department.

             (4)  The notice must:

                     (a)  contain particulars of the breach; and

                     (b)  state that the student is required to attend in person before an officer (within the meaning of the Migration Act 1958 ) at a specified place within 28 days after the day specified in the notice as the date of the notice, for the purpose of explaining the breach; and

                     (c)  state that the student must present photographic identification when so attending; and

                     (d)  set out the effect of sections #137J and #137K of that Act.

Unincorporated registered providers

             (5)  If the registered provider is an unincorporated body, then it is instead the principal executive officer of the provider who must send the notice as required under this section.

21   Record keeping

             (1)  A registered provider must keep records of each accepted student who is enrolled with the provider or who has paid any course money for a course provided by the provider.

             (2)  The records must consist of each accepted student’s current residential address and any other details prescribed by the regulations.

             (3)  The provider must retain the records 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.

Note:          The Minister may take action under Division 1 of Part 6 against a registered provider that has breached this section. A breach of this section is also an offence: see section 105.

Unincorporated registered providers

             (4)  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.

22   Registered providers must belong to a tuition assurance scheme

             (1)  A registered provider must at all times:

                     (a)  be a member of a tuition assurance scheme established in accordance with the regulations; and

                     (b)  comply with the rules of the scheme.

Note:          The Minister may take action under Division 1 of Part 6 against a registered provider that has breached this section.

             (2)  A registered provider who is not a member of a tuition assurance scheme breaches subsection (1) even if the reason for not being a member is that:

                     (a)  the provider’s application for membership was rejected; or

                     (b)  the provider’s membership of a scheme has been cancelled.

             (3)  The regulations may exempt providers from the requirements of this section.

23   Annual registration charge

                   A registered provider who is liable to pay an annual registration charge for a year must pay the charge by the last business day of February of the year.

Note 1:       A registered provider is liable for an annual registration charge: see section 5 of the Education Services for Overseas Students (Registration Charges) Act 1997 .

Note 2:       The Minister may take action under Division 1 of Part 6 against a registered provider that has breached this section.

24   Annual Fund contributions

             (1)  A registered provider must pay an annual Fund contribution for each calendar year.

Note:          Part 5 has the details about how amounts of contribution are determined and about the Fund generally.

             (2)  However, the regulations may exempt a registered provider from the requirement to pay annual Fund contributions.

             (3)  A registered provider who is required to pay an amount of annual Fund contribution for a calendar year must pay it to the Fund Manager by the day stated in the notice that the Fund Manager gives the provider under Part 5.

Note:          The Minister may take action under Division 1 of Part 6 against a registered provider that has breached this section.

25   Special levies for the Fund

                   A registered provider who is required to pay an amount of special levy under section 72 must pay it to the Fund Manager by the day stated in the notice that the Fund Manager gives the provider under that section.

Note:          The Minister may take action under Division 1 of Part 6 against a registered provider that has breached this section.

26   Disclosure obligations of registered providers

             (1)  A registered provider who is required to pay an annual Fund contribution for a year must tell the Fund Manager as soon as practicable of any matter that might cause the Fund Manager to increase the amount of contribution the provider would be required to pay for that or a later year.

             (2)  The obligation in subsection (1) continues to apply even after the registered provider has paid its annual Fund contribution for the year.

Fund Manager may request information

             (3)  At any time, the Fund Manager may request a registered provider to give the Fund Manager information that is relevant to determining the provider’s amount of contribution. The provider must comply with the request.

Note 1:       The Minister may take action under Division 1 of Part 6 against a registered provider that has breached this section. A breach of this section is also an offence: see section 104.

Note 2:       It is an offence to provide false or misleading information in complying or purporting to comply with this section: see section 108.



 

Division 2 Refunds of course money

27   When this Division applies

Provider default

             (1)  This Division applies to an overseas student or an intending overseas student in relation to a course if:

                     (a)  the course does not start on the agreed starting day; or

                     (b)  the course ceases to be provided at any time after it starts but before it is completed; or

                     (c)  the course is not provided in full to the student because a sanction has been imposed on the registered provider under Part 6;

and the student has not withdrawn before the default day.

Student default

             (2)  This Division also applies to an overseas student or an intending overseas student in relation to a course if:

                     (a)  the course starts 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 (either before or after the agreed starting day).

             (3)  In this Division:

agreed starting day means the day on which the course was scheduled to start, or a later day agreed between the registered provider for the course and the student.

default day means:

                     (a)  the agreed starting day, if paragraph (1)(a) or (2)(a) applies; or

                     (b)  the day on which the course ceased to be provided, if paragraph (1)(b) or (c) applies; or

                     (c)  the day on which the student withdraws from the course, if paragraph (2)(b) applies.

28   Refund if there is a written agreement about student default

             (1)  This section applies in a situation covered by subsection 27(2) if:

                     (a)  the registered provider (or former registered provider) for the course and the student have a written agreement setting out the refund requirements that apply in that situation; and

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

             (2)  The provider must pay the student the amount (if any) required by the agreement.

             (3)  The provider must pay that amount within 4 weeks after receiving a written claim from the student.

Note:          The Minister may take action under Division 1 of Part 6 against a registered provider that has breached this section.

29   Refund in other cases

             (1)  Unless section 28 applies, the registered provider (or former registered provider) for the course must pay the student:

                     (a)  the total of the course money the provider received in respect of the student before the default day; less

                     (b)  the total of the prescribed amounts relating to expenses the provider incurred for the student for the course before the default day.

(A negative result is treated as nil).

             (2)  For the purposes of paragraph (1)(b), the regulations may prescribe different amounts (including nil amounts) for students in different circumstances.

             (3)  In a subsection 27(1) case, the provider must pay the amount within 2 weeks after the default day.

             (4)  In a subsection 27(2) case, the provider must pay the amount within 4 weeks after the default day.

Note:          The Minister may take action under Division 1 of Part 6 against a registered provider that has breached this section.

30   Recovering the amount

             (1)  The student is entitled to recover the amount owing under this Division as a debt by action in a court of competent jurisdiction.

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

31   Alternative arrangements

             (1)  As an alternative to making a payment required by this Division, the registered provider (or former registered provider) may arrange for another course, or part of a course, to be provided to the student at the provider’s expense.

             (2)  If the student agrees to accept the alternative arrangement, the provider is relieved of its liability to make the payment.

32   Registered provider must notify the Fund Manager of non-compliance

                   A registered provider that fails to comply, or becomes aware that it will not be able to comply, with its obligations under this Division must tell the Fund Manager of this as soon as practicable.

Note:          The Minister may take action under Division 1 of Part 6 against a registered provider that has breached this section.