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Education Services for Overseas Students Legislation Amendment (Tuition Protection Service and Other Measures) Bill 2011

Schedule 1 Tuition protection service

Part 1 Main amendments

Education Services for Overseas Students Act 2000

1  Part 5

Repeal the Part, substitute:

Part 5 Tuition protection service

Division 1 Guide to this Part

45   Guide to this Part

•      This Part sets out what happens when a registered provider or an overseas student or intending overseas student defaults (that is, when a provider fails to start or finish providing a course to a student, or a student fails to start or finish a course with a provider).

•      Division 2 sets out the obligation on registered providers to provide refunds to students. In the case of a provider default, a registered provider may instead provide alternative courses for the students at the provider’s expense.

•      If a provider defaults and fails to discharge its obligations to a student under Division 2, then, under Division 3, the TPS Director must provide the student with options for suitable alternative courses (if any such courses are available).

•      Under Division 4, payments can be made out of the Overseas Students Tuition Fund to refund students, and to reimburse providers who provide students with alternative courses, when a provider has failed to discharge its obligations. (This is called making a call on the OSTF.)

Division 2 Obligations on registered providers when a provider or student defaults

Subdivision A Provider defaults

46A   When a registered provider defaults

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

                     (a)  either of the following occurs:

                              (i)  the provider fails to start to provide the course to the student at the location on the agreed starting day;

                             (ii)  the course ceases to be provided to the student at the location at any time after it starts but before it is completed; and

                     (b)  the student has not withdrawn before the default day.

Note:          For an exception to this rule, see subsection (3).

             (2)  To avoid doubt, a registered provider defaults if the provider is prevented from providing a course at a location because a sanction has been imposed on the provider under Part 6.

Ceasing to provide courses

             (3)  A registered provider does not default, in relation to an overseas student or intending overseas student and a course at a location, if the provider fails to start to provide the course, or the course ceases to be provided, to the student because the student defaults in relation to the course under paragraph 47A(1)(c).

             (4)  If a registered provider for a course for a location has changed to become an entity of a different kind, the Minister may notify the provider in writing that the course is not taken, for the purposes of subparagraph (1)(a)(ii) of this section, to have ceased to be provided at the location merely because of the change. The notice has effect accordingly.

             (5)  In deciding whether to give the notice, the Minister must have regard to:

                     (a)  the effect of the change on the delivery of courses and outcomes for students; and

                            (b)    any advice of the relevant designated authority.

46B   Registered providers to notify of provider default

             (1)  A registered provider must give notices in accordance with this section if the provider defaults in relation to one or more overseas students or intending overseas students and a course at a location.

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

Notifying Secretary and TPS Director

             (2)  The provider must notify, in writing, the Secretary and the TPS Director of the default within 3 business days of the default occurring.

Note:          For the definition of business day , see section 2B of the Acts Interpretation Act 1901 .

             (3)  The notice must include the following:

                     (a)  the circumstances of the default;

                     (b)  the details of the students in relation to whom the provider has defaulted;

                     (c)  advice as to:

                              (i)  whether the provider intends to discharge its obligations to those students under section 46D; and

                             (ii)  (if appropriate) how the provider intends to discharge those obligations.

Notifying students

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

Notice requirements

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

Legislative instrument

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

Former registered providers

             (7)  This section continues to apply to a provider if the provider ceases to be a registered provider.

46C   Designated authorities to notify of provider default

                   A designated authority must notify the Secretary and the TPS Director, in writing, as soon as practicable if the authority becomes aware that a registered provider has defaulted, or is likely to default.

46D   Obligations on registered providers in case of provider default

             (1)  This section applies if a registered provider defaults in relation to an overseas student or intending overseas student and a course at a location.

             (2)  The provider must discharge its obligations to the student, in accordance with subsection (3), within the period (the provider obligation period ) of 14 days after the default day.

Note:          For the consequences of breaching this section, see section 46E (offence), Divisions 3 (student placement service) and 4 (calls on the OSTF), and Division 1 of Part 6 (conditions, suspension and cancellation).

             (3)  The provider discharges its obligations to the student if:

                     (a)  both of the following apply:

                              (i)  the provider arranges for the student to be offered a place in a course in accordance with subsection (4);

                             (ii)  the student accepts the offer in writing; or

                     (b)  the provider provides a refund in accordance with subsection (6).

Arranging alternative courses

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

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

Providing a refund

             (6)  The provider may pay the student a refund of the amount, worked out in accordance with any legislative instrument made under subsection (7), of any unspent pre-paid fees received by the provider in respect of the student.

Note:          For providers who are required to maintain an initial pre-paid fees account, the refund might be paid out of the account: see section 29.

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

Former registered providers

             (8)  This section continues to apply to a provider if the provider ceases to be a registered provider.

46E   Offence for failure to discharge obligations

             (1)  A person commits an offence if:

                     (a)  either:

                              (i)  the person is a registered provider; or

                             (ii)  if a registered provider is an unincorporated body—the person is the principal executive officer of the provider; and

                     (b)  the person defaults in relation to an overseas student or intending overseas student and a course at a location; and

                     (c)  the person fails to discharge its obligations to the student in accordance with section 46D (whether or not the provider is still a registered provider at that time).

Penalty:  60 penalty units.

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

Note:          For strict liability, see section 6.1 of the Criminal Code .

             (3)  The maximum penalty for each day that an offence under subsection (1) continues is 10% of the maximum penalty that can be imposed in respect of that offence.

Note:          Subsection (1) is a continuing offence under section 4K of the Crimes Act 1914 .

46F   Registered providers to notify of outcome of discharge of obligations

             (1)  A registered provider that defaults, in relation to one or more overseas students or intending overseas students and a course at a location, must give a notice in accordance with this section.

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

             (2)  The provider must give a notice to the Secretary and the TPS Director within 7 days after the end of the provider obligation period.

Notice requirements

             (3)  The notice must include the following:

                     (a)  whether the provider discharged its obligations to the students in accordance with section 46D;

                     (b)  if the provider arranged alternative courses:

                              (i)  details of the students the provider arranged alternative courses for; and

                             (ii)  details of the courses arranged; and

                            (iii)  evidence of each student’s acceptance of an offer of a place in an alternative course;

                     (c)  if the provider provided refunds:

                              (i)  details of the students the provider provided refunds to; and

                             (ii)  details of the amounts of the refunds provided.

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

Legislative instrument

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

Former registered providers

             (6)  This section continues to apply to a provider if the provider ceases to be a registered provider.

Subdivision B Student defaults

47A   When a student defaults

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

                     (a)  the course starts at the location on the agreed starting day, but the student does not start the course on that day (and has not previously withdrawn); or

                     (b)  the student withdraws from the course at the location (either before or after the agreed starting day); or

                     (c)  the registered provider of the course refuses to provide, or continue providing, the course to the student at the location because of one or more of the following events:

                              (i)  the student failed to pay an amount he or she was liable to pay the provider, directly or indirectly, in order to undertake the course;

                             (ii)  the student breached a condition of his or her student visa;

                            (iii)  misbehaviour by the student.

Note 1:       For an exception to paragraph (1)(a), see subsection (2).

Note 2:       For an exception to subparagraph (1)(c)(iii), see subsection (3).

             (2)  An overseas student or intending overseas student does not default under paragraph (1)(a) in relation to a course at a location if the student does not start that course because the registered provider defaults in relation to the course at the location under subparagraph 46A(1)(a)(i).

             (3)  An overseas student or intending overseas student does not default under subparagraph (1)(c)(iii) unless the registered provider accords the student natural justice before refusing to provide, or continue providing, the course to the student at the location.

47B   Requirement to make written agreement about student default

                   A registered provider must enter into a written agreement with each overseas student or intending overseas student that:

                     (a)  sets out the refund requirements that apply if the student defaults in relation to a course at a location; and

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

Note:          For the consequences of breaching this section, see section 47F (offence) and Division 1 of Part 6 (conditions, suspension and cancellation).

47C   Registered provider to notify of student default

             (1)  A registered provider must give a notice in accordance with this section if an overseas student or intending overseas student defaults in relation to a course provided by the provider at a location.

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

             (2)  The provider must notify, in writing, the Secretary and the TPS Director of the default within 5 business days of the default occurring.

Note:          For the definition of business day , see section 2B of the Acts Interpretation Act 1901 .

             (3)  A notice given under this section must comply with any requirements of a legislative instrument made under subsection (4).

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

Former registered providers

             (5)  This section continues to apply to a provider if the provider ceases to be a registered provider.

47D   Refund under a written agreement about student default

             (1)  A registered provider must provide a refund under this section if an overseas student or intending overseas student defaults in relation to a course provided by the provider at a location.

Note 1:       A refund might not be required under this section if a student is refused a student visa: see subsection (5).

Note 2:       For the consequences of breaching this section, see section 47G (offence), Division 4 (calls on the OSTF) and Division 1 of Part 6 (conditions, suspension and cancellation).

Provider to pay refund

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

Note:          For providers who are required to maintain an initial pre-paid fees account, the refund might be paid out of the account: see section 29.

             (3)  The provider must pay the refund to the following person:

                     (a)  the student;

                     (b)  if a person (other than the student) is specified in the agreement to receive any refund under this section—the specified person.

             (4)  The provider must pay the refund within the period (the provider obligation period ) of 4 weeks after receiving a written claim from the student.

Exception—refusal of student visa

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

                     (a)  the student was refused a student visa; and

                     (b)  the refusal was a reason for one or more of the following acts or omissions by the student that directly or indirectly caused the student to default in relation to the course at the location:

                              (i)  the student’s failure to start the course at the location on the agreed starting day;

                             (ii)  the student’s withdrawal from the course at that location;

                            (iii)  the student’s failure to pay an amount he or she was liable to pay the provider, directly or indirectly, in order to undertake the course at that location.

Note:          A registered provider is required to provide a refund under section 47E instead.

Former registered providers

             (6)  This section continues to apply to a provider if the provider ceases to be a registered provider.

47E   Refund in other cases

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

                     (a)  an overseas student or an intending overseas student defaults in relation to a course at a location; and

                     (b)  either:

                              (i)  the provider has not entered into an agreement with the student that meets the requirements of section 47B; or

                             (ii)  the provider is not required to pay a refund to the student because of subsection 47D(5) (refusal of student visa).

Note:          For the consequences of breaching this section, see section 47G (offence), Division 4 (calls on the OSTF) and Division 1 of Part 6 (conditions, suspension and cancellation).

             (2)  The provider must pay the student a refund of the amount, worked out in accordance with a legislative instrument made under subsection (4), of any unspent pre-paid fees received by the provider in respect of the student.

Note:          For providers who are required to maintain an initial pre-paid fees account, the refund might be paid out of the account: see section 29.

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

Legislative instrument

             (4)  The Minister may, by legislative instrument, specify a method for working out the amount of unspent pre-paid fees for the purposes of subsection (2).

Former registered providers

             (5)  This section continues to apply to a provider if the provider ceases to be a registered provider.

47F   Offence for failure to enter agreement that complies with requirements

             (1)  A person commits an offence if:

                     (a)  either:

                              (i)  the person is a registered provider; or

                             (ii)  if a registered provider is an unincorporated body—the person is the principal executive officer of the provider; and

                     (b)  the person fails to enter into an agreement that complies with the requirements of section 47B.

Penalty:  60 penalty units.

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

Note:          For strict liability, see section 6.1 of the Criminal Code .

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

47G   Offence for failure to provide refund

             (1)  A person commits an offence if:

                     (a)  either:

                              (i)  the person is a registered provider; or

                             (ii)  if a registered provider is an unincorporated body—the person is the principal executive officer of the provider; and

                     (b)  an overseas student or intending overseas student defaults in relation to a course at a location that is or was provided, or is to be provided, by the person; and

                     (c)  the person fails to provide a refund to the student in accordance with section 47D or 47E (as the case requires) (whether or not the provider is still a registered provider at that time).

Penalty:  60 penalty units.

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

Note:          For strict liability, see section 6.1 of the Criminal Code .

             (3)  The maximum penalty for each day that an offence under subsection (1) continues is 10% of the maximum penalty that can be imposed in respect of that offence.

Note:          Subsection (1) is a continuing offence under section 4K of the Crimes Act 1914 .

47H   Registered providers to notify of outcome of discharge of obligations

             (1)  A registered provider must give a notice in accordance with this section if an overseas student or intending overseas student defaults in relation to a course provided by the provider at a location.

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

             (2)  The provider must give a notice to the Secretary and the TPS Director within 7 days after the end of the provider obligation period.

             (3)  The notice must include the following:

                     (a)  whether the provider provided a refund under section 47D or 47E;

                     (b)  details of the student the provider provided the refund to;

                     (c)  details of the amount of the refund provided.

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

Legislative instrument

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

Former registered providers

             (6)  This section continues to apply to a provider if the provider ceases to be a registered provider.

Subdivision C Recovering an amount

48   Recovering an amount

             (1)  An overseas student or intending overseas student may recover an amount owing to the student under this Division as a debt by action in a court of competent jurisdiction (unless subsection (2) applies).

Note:          This section is also affected by section 50C.

             (2)  If:

                     (a)  a registered provider (or former registered provider) owes an amount to a student under section 47D; and

                     (b)  a person (other than the student) is specified in the agreement entered into between the provider and the student under section 47B;

the specified person, rather than the student, may recover the amount as a debt by action in a court of competent jurisdiction.

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

Division 3 Student placement service

49   Student placement service

             (1)  This section applies if the TPS Director determines that:

                     (a)  a registered provider (or former registered provider) has defaulted in relation to an overseas student or intending overseas student and a course at a location; and

                     (b)  either:

                              (i)  the provider has failed to discharge its obligations under section 46D to the student by the end of the provider obligation period; or

                             (ii)  the provider is unlikely to be able to discharge its obligations under section 46D to the student by the end of the provider obligation period.

Suitable alternative courses

             (2)  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

             (3)  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.

Note:          A call is made on the OSTF to pay the provider of the alternative course: see Division 4.

             (4)  An acceptance must:

                     (a)  be in writing; and

                     (b)  be made within the period specified in subsection (5).

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

                     (a)  the period of 30 days after the end of the provider obligation period; or

                     (b)  if the TPS Director determines that exceptional circumstances apply:

                              (i)  any shorter period determined in writing by the TPS Director; or

                             (ii)  any longer period determined in writing by the TPS Director, and agreed to by the student.

Legislative instrument

             (6)  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.

Division 4 Calls on the OSTF

50A   When a call is made on the OSTF

             (1)  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:

                     (a)  a registered provider has defaulted in relation to an overseas student or intending overseas student and a course at a location; and

                     (b)  the provider has failed to discharge its obligations under section 46D to the student by the end of the provider obligation period; and

                     (c)  the student has not accepted a place in an alternative course in accordance with section 49.

Provider default, place accepted by student

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

                     (a)  a registered provider has defaulted in relation to an overseas student or intending overseas student and a course at a location; and

                     (b)  the provider has failed to discharge its obligations under section 46D to the student by the end of the provider obligation period; and

                     (c)  the student accepts a place in an alternative course in accordance with section 49.

Student default, refund not provided by registered provider

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

                     (a)  a student has defaulted in relation to a course provided by a registered provider at a location; and

                     (b)  the provider fails to provide a refund in accordance with section 47D or 47E (as the case requires) by the end of the provider obligation period.

No call on the OSTF after a year

             (5)  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.

50B   What the TPS Director must do when a call is made

TPS Director must pay amount

             (1)  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.

Note:          The TPS Director pays the amount to the person specified in subsection (3).

             (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:

                     (a)  would best protect the interests of the student; and

                     (b)  would not jeopardise the sustainability of the OSTF.

Who TPS Director pays amount to

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

                     (a)  if the student has accepted a place in an alternative course in accordance with section 49—the registered provider of that course; and

                     (b)  if a refund was required to be paid under section 47D, and a person (other than the student) is specified in the agreement made with the student under section 47B to receive any refund under this section—the specified person; and

                     (c)  otherwise—the student.

             (4)  If:

                     (a)  the TPS Director is required under subsection (3) to pay a registered provider for providing an alternative course; and

                     (b)  the amount required to be paid is more than the cost of the course;

the TPS Director must pay the difference to the person specified in paragraph (3)(b) or (c) (as the case requires).

Legislative instrument

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

50C   Consequences of a payment under section 50B

Cessation of claim

             (1)  If:

                     (a)  either:

                              (i)  a registered provider defaults in relation to an overseas student or intending overseas student and a course at a location; or

                             (ii)  an overseas student or intending overseas student defaults in relation to a course provided by a registered provider at a location; and

                     (b)  the TPS Director pays an amount in accordance with section 50B in relation to the student;

the student, and any person specified in paragraph 50B(3)(b), cease to have any claim against the provider in respect of the student’s pre-paid fees.

Provider must pay back TPS Director

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

Note:          For providers who are required to maintain an initial pre-paid fees account, the amount might be paid out of the account: see section 29.

             (3)  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

             (4)  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.

Former registered providers

             (5)  This section continues to apply to a provider if the provider ceases to be a registered provider.

50D   TPS Director to notify Immigration Secretary

             (1)  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).

Note 1:       This section constitutes authorisation for the purposes of other laws, such as paragraph (1)(d) of Information Privacy Principle 11 in section 14 of the Privacy Act 1988 .

Note 2:       The Immigration Secretary’s power under this section can be delegated under section 170.

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

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

50E   Right to refund may be cancelled etc. without compensation

                   A right to be paid an amount under section 50B is granted on the basis that:

                     (a)  the right may be cancelled, revoked, terminated or varied by or under later legislation; and

                     (b)  no compensation is payable if the right is so cancelled, revoked, terminated or varied.

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

Division 1 Guide to this Part

51   Guide to this Part

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

•      Division 2:

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

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

               (c)     has rules relating to TPS levies.

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

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

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

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

               (c)     managing the OSTF.

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

Division 2 Overseas Students Tuition Fund and TPS levies

Subdivision A Overseas Students Tuition Fund

52A   Name of Fund

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

             (2)  The Fund is a Special Account for the purposes of the Financial Management and Accountability Act 1997 .

52B   Credits to the OSTF

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

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

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

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

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

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

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

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

52C   Purposes of the OSTF

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

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

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

Note:          See section 21 of the Financial Management and Accountability Act 1997 (debits from Special Accounts).

             (2)  Paragraph (1)(b) does not include:

                     (a)  paying any remuneration or allowances payable to the TPS Director under this Act; or

                     (b)  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

53A   TPS Director to set TPS levies

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

             (2)  In doing so, the TPS Director must determine the amount in accordance with the legislative instrument made under subsections 9(3) and 10(2) of the Education Services for Overseas Students (TPS Levies) Act 2012 for that year.

53B   Notice of amount of TPS levy

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

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

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

Note 1:       There is no particular due day for unregistered providers, but they cannot be registered under section 9AB until they have paid their contribution: see paragraph 9AB(1)(d).

Note 2:       The provider may seek review of the amount of the TPS levy from the AAT: see section 176.

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

53C   Notifying the Secretary in relation to payment of TPS levy

Payment of first TPS levy

             (1)  The TPS Director must notify the Secretary if a provider who is not yet registered under section 9AB has paid its first TPS levy.

Note:          The Secretary needs to know when this has happened so that the provider can be registered under section 9AB: see paragraph 9AB(1)(d).

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

Non-payment of later TPS levies

             (3)  The TPS Director must notify the Secretary if a provider who is registered under section 9AB has not paid a TPS levy for a year by the end of the period referred to in paragraph 53D(2)(b).

53D   Reminder notices

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

             (2)  The reminder notice must:

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

                     (b)  state that the registered provider must pay the amount, along with the associated late payment penalty, by the end of the seventh day after the reminder notice is given to the provider; and

                     (c)  set out the effect of section 90.

Note:          Section 90 provides that the provider’s registration is automatically suspended if the provider does not comply with the reminder notice.

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

Division 3 TPS Director

54A   Appointment of TPS Director

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

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

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

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

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

54B   Functions of the TPS Director

                   The TPS Director has the following functions:

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

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

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

                     (d)  reporting to the Minister on:

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

                             (ii)  the financial status of the OSTF;

                     (e)  managing the OSTF in a way that ensures that it is able to meet all its liabilities from time to time (including entering into a loan agreement for the benefit of the OSTF);

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

                     (g)  any other function conferred by this Act.

54C   Remuneration and allowances

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

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

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

54D   Leave of absence

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

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

54E   Restrictions on outside employment

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

54F   Disclosure of interests

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

54G   Resignation

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

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

54H   Termination of appointment

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

                     (a)  misbehaviour; or

                     (b)  physical or mental incapacity.

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

                     (a)  the TPS Director:

                              (i)  becomes bankrupt; or

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

                            (iii)  compounds with his or her creditors; or

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

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

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

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

54J   Other terms and conditions

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

54K   Acting TPS Director

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

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

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

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

54L   Consultants

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

54M   Indemnity

             (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 .

Division 4 TPS Advisory Board

Subdivision A Appointment of Board members

55A   Establishment

                   The TPS Advisory Board is established by this section.

55B   Function of the Board

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

55C   Membership

             (1)  The Board consists of the following members:

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

                              (i)  the Department;

                             (ii)  the Department whose Minister administers the Financial Management and Accountability Act 1997 ;

                            (iii)  the Department administered by the Immigration Minister;

                            (iv)  the Australian Government Actuary;

                             (v)  the Australian Prudential Regulation Authority;

                     (b)  up to 7 other members.

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

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

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

Chair and Deputy Chair

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

55D   Appointment of Board members

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

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

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

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

55E   Remuneration and allowances

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

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

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

55F   Leave of absence

Chair

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

Other members

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

55G   Restrictions on outside employment

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

55H   Disclosure of interests

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

55J   Disclosure of interests to the Board

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

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

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

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

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

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

             (5)  In addition, the Board member:

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

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

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

55K   Resignation

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

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

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

55L   Termination

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

                     (a)  misbehaviour; or

                     (b)  physical or mental incapacity.

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

                     (a)  the Board member:

                              (i)  becomes bankrupt; or

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

                            (iii)  compounds with his or her creditors; or

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

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

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

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

55M   Other terms and conditions

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

55N   Acting appointments

Acting Board member

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

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

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

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

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

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

Acting Chair

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

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

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

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

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

Subdivision B Meetings of the TPS Advisory Board

56A   Convening meetings

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

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

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

             (3)  The Chair:

                     (a)  may convene a meeting; and

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

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

                              (i)  7 or more other Board members; or

                             (ii)  the Minister.

56B   Presiding at meetings

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

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

56C   Quorum

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

             (2)  However, if:

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

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

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

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

56D   Voting at meetings

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

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

56E   Conduct of meetings

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

56F   Minutes

                   The Board must keep minutes of its meetings.

56G   Decisions without meetings

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

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

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

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

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

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

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

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

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



 

Part 2 Consequential amendments

Education Services for Overseas Students Act 2000

2  Paragraph 4A(a)

Omit “financial and tuition assurance to”, substitute “tuition assurance, and refunds, for”.

3  Paragraphs 4B(2)(c) and (e)

Repeal the paragraphs.

4  Section 5

Insert:

agreed starting day for a course 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.

5  Section 5 (definition of annual Fund contribution )

Repeal the definition.

6  Section 5

Insert:

Board means the TPS Advisory Board established by section 55A.

7  Section 5

Insert:

Board member means a member of the Board appointed under section 55D, including the Chair and the Deputy Chair.

8  Section 5

Insert:

call : a call is made on the OSTF in the circumstances set out in section 50A.

9  Section 5 (definition of contributions criteria )

Repeal the definition.

10  Section 5

Insert:

default :

                     (a)  in relation to a registered provider—has the meaning given by section 46A; and

                     (b)  in relation to an overseas student or intending overseas student—has the meaning given by section 47A.

11  Section 5

Insert:

default day , in relation to a default, means:

                     (a)  if subparagraph 46A(1)(a)(i) or paragraph 47A(1)(a) applies—the agreed starting day; or

                     (b)  if subparagraph 46A(1)(a)(ii) applies—the day on which the course ceases to be provided; or

                     (c)  if paragraph 47A(1)(b) applies—the day on which the student withdraws from the course; or

                     (d)  if paragraph 47A(1)(c) applies—the day on which the registered provider of the course refuses to provide, or continue providing, the course to the student.

12  Section 5 (definition of Fund )

Repeal the definition.

13  Section 5 (definition of Fund Manager )

Repeal the definition.

14  Section 5

Insert:

Immigration Secretary means the Secretary of the Department administered by the Immigration Minister.

15  Section 5

Insert:

OSTF : see Overseas Students Tuition Fund.

16  Section 5

Insert:

Overseas Students Tuition Fund means the Overseas Students Tuition Fund established under section 52A.

17  Section 5 (definition of Panel )

Repeal the definition.

18  Section 5

Insert:

provider obligation period , in relation to a default, has the meaning given by section 46D, 47D or 47E (as the case requires).

19  Section 5 (definition of special levy )

Repeal the definition.

20  Section 5

Insert:

TPS levy means a TPS levy that a provider is required to pay to the TPS Director under paragraph 9AB(1)(d) or subsection 24(1).

21  Section 5 (definition of tuition assurance scheme )

Repeal the definition.

22  Section 13

Repeal the section, substitute:

13   TPS Director may require information

             (1)  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 Secretary registers the provider under section 9AB.

Note:          A person could be guilty of an offence if the person provides false or misleading information in complying or purporting to comply with this section: see section 108.

             (2)  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.

23  Section 22

Repeal the section.

24  Sections 24 and 25

Repeal the sections, substitute:

24   TPS levies

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

Note:          Subdivision B of Division 2 of Part 5A, and the Education Services for Overseas Students (TPS Levies) Act 2012 ,have details about how amounts of TPS levy are determined.

             (2)  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.

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

25  Section 26

Repeal the section, substitute:

26   Disclosure obligations of registered providers

             (1)  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.

             (2)  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

             (3)  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.

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

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

26  Division 2 of Part 3

Repeal the Division.

27  Paragraph 90(1)(a)

Omit “section 75”, substitute “section 53D”.

28  Paragraphs 106(1A)(e) and (f)

Repeal the paragraphs, substitute:

                     (e)  section 46E; or

                      (f)  section 47F; or

                     (g)  section 47G.

29  Paragraph 108(a)

Omit “fund manager”, substitute “TPS Director”.

30  After section 170A

Insert:

170B   Annual report

             (1)  After the end of each financial year, the TPS Director must prepare and give to the Minister a report in relation to the following:

                     (a)  the financial status of the OSTF during that financial year;

                     (b)  the number of students placed in alternative courses under section 49 during that financial year;

                     (c)  the time taken to place students in alternative courses under section 49 during that financial year;

                     (d)  the number of calls made on the OSTF during that financial year;

                     (e)  the time taken to pay an amount under section 50B during that financial year;

                      (f)  the total of any amounts paid out under section 50B during that financial year;

                     (g)  an assessment of any issues affecting the operation of Part 5 (tuition protection service) during that financial year;

                     (h)  an assessment of any issues that might affect the operation of Part 5 in future financial years;

                      (i)  an assessment of the outlook of the industry that provides courses to overseas students, and any potential risk to the OSTF as a result of that outlook.

             (2)  The report must be included in the Department’s annual report for that financial year.

31  At the end of section 170

Add:

Immigration Secretary

             (5)  The Immigration Secretary may, by signed writing, delegate his or her power under section 50D (TPS Director to notify Immigration Secretary) to an SES employee or acting SES employee in the Department administered by the Immigration Minister.

32  Paragraph 172(1)(c)

Repeal the paragraph, substitute:

                     (c)  TPS levy (other than a provider’s first TPS levy);

33  Paragraph 173(1)(c)

Repeal the paragraph, substitute:

                     (c)  TPS levy (other than a provider’s first TPS levy).

34  Subsection 173(2)

Omit “the Fund, the Fund Manager”, substitute “the OSTF, the TPS Director”.

35  Section 174

Omit “ (Assurance Fund Contributions) Act 2000 ”, substitute “ (TPS Levies) Act 2012 ”.

36  Subsection 175(1) (heading)

Repeal the heading, substitute:

Giving information to government agencies, the TPS Director etc.

37  Paragraphs 175(1)(f) and (g)

Repeal the paragraphs, substitute:

                      (f)  the TPS Director; or

                     (g)  a Board member; or

38  Before paragraph 176(1)(b)

Insert:

                    (af)  a decision not to notify a registered provider under subsection 46A(4); or

                    (ag)  a decision under section 53A as to an amount of TPS levy to be paid by a provider; or

Tertiary Education Quality and Standards Agency Act 2011

39  Paragraph 189(1)(e)

Omit “the Fund Manager, or the operator of an applicable tuition assurance scheme,”, substitute “the TPS Director,”.



 

Part 3 Contingent amendments

Division 1—Amendment that will not commence if the Registration Charges Acts commence first

Education Services for Overseas Students Act 2000

40  Section 90 (heading)

Omit “ annual Fund contribution, special levy ”, substitute “ TPS levy ”.

Division 2—Amendment commencing immediately after the later of the commencement of Part 1 of this Schedule and the Registration Charges Acts

Education Services for Overseas Students Act 2000

41  Section 90 (heading)

Omit “ contribution, ”.



 

Part 4 Repeal of the Education Services for Overseas Students (Assurance Fund Contributions) Act 2000

Education Services for Overseas Students (Assurance Fund Contributions) Act 2000

42  The whole of the Act

Repeal the Act .



 

Part 5 Application, saving and transitional provisions

Division 1—Introduction

43  Definitions

In this Part:

asset means:

                     (a)  any legal or equitable estate or interest in real or personal property, whether actual, contingent or prospective; and

                     (b)  any right, power, privilege or immunity, whether actual, contingent or prospective;

but does not include a right, power, privilege or immunity conferred by an Act or by regulations or other subordinate legislation made under an Act.

ESOS Act means the Education Services for Overseas Students Act 2000 .

liability means any liability, duty or obligation, whether actual, contingent or prospective, but does not include a liability, duty or obligation imposed by an Act or by regulations or other subordinate legislation made under an Act.

old Fund means the ESOS Assurance Fund established under section 45 of the ESOS Act (as in force immediately before this item commences).

Division 2—Defaults

44  Application—defaults after commencement

The amendments made by this Schedule apply in relation to any default by a registered provider, or an overseas student or intending overseas student, that occurs after this item commences.

45  Transitional—defaults before commencement

(1)       This item sets out what happens if:

                     (a)  before this item commences:

                              (i)  a registered provider defaults in relation to an overseas student or intending overseas student and a course at a location; or

                             (ii)  an overseas student or intending overseas student defaults in relation to a course at a location; and

                     (b)  by the time this item commences:

                              (i)  the student has not accepted an alternative course in accordance with Division 2 of Part 3, or Division 5 of Part 5, of the ESOS Act (as in force immediately before this item commences); and

                             (ii)  the student has not been provided with a refund under one of those Divisions.

(2)       Despite the repeal of Division 2 of Part 3, and Division 5 of Part 5, of the ESOS Act by this Schedule, those Divisions (except subsections 31(4) to (5)) (as in force immediately before this item commences) continue to apply after this item commences, in relation to the default, with the following changes:

                     (a)  references in those Divisions to the Fund Manager are taken to be references to the TPS Director;

                     (b)  references in those Divisions to the Fund are taken to be references to the Overseas Students Tuition Fund;

                     (c)  section 77 of the ESOS Act applies as if it required the TPS Director to comply with that section within:

                              (i)  the period of 30 days of a call being made on the Fund; or

                             (ii)  if the TPS Director determines that exceptional circumstances apply—any longer period determined in writing by the TPS Director, and agreed to by the student;

                     (d)  the TPS Director may pay an amount in relation to a student under section 77 of the ESOS Act without having attempted to place the student in a suitable alternative course.

(3)       For the purposes of section 52C of the ESOS Act (as inserted by this Schedule), making a payment under section 77 of the ESOS Act (as continued by this item) is taken to be a purpose of the Overseas Students Tuition Fund.

Division 3—The old Fund and the OSTF

46  Vesting of assets of old Fund

(1)       This item applies to the assets of the old Fund immediately before this item commences.

(2)       At that time, the assets cease to be assets of the old Fund and become assets of the Commonwealth without any conveyance, transfer or assignment. The Commonwealth becomes the successor in law in relation to the assets.

47  Transferring amount standing to the credit of the old Fund

The amount standing to the credit of the old Fund immediately before this item commences is, by force of this item, transferred to the Commonwealth immediately after this item commences.

48  Vesting of liabilities of old Fund

(1)       This item applies to the liabilities of the old Fund immediately before this item commences, other than any loan from the Commonwealth.

(2)       At that time, the liabilities cease to be liabilities of the old Fund and become liabilities of the Commonwealth without any conveyance, transfer or assignment. The Commonwealth becomes the successor in law in relation to the liabilities.

49  Transitional—financial accountability

Despite the repeal of section 80 of the ESOS Act by this Schedule, that section (as in force immediately before this item commences) continues to apply, after this item commences, with the following changes:

                     (a)  the TPS Director (and not the Fund Manager) must arrange for the independent auditor to prepare the report;

                     (b)  the report must be prepared as soon as possible after 30 June of the year in which this item commences (and not after the end of a calendar year);

                     (c)  the report must be given to the Minister only (and not the Panel).

50  Section 82 of the ESOS Act

To avoid doubt, section 82 of the ESOS Act (as in force immediately before this item commences) does not apply in relation to the repeal of Division 1 of Part 5 of that Act by this Schedule.

51  Seed funding for the OSTF

(1)       Despite section 52B of the ESOS Act (as inserted by this Schedule), the amount (the seed funding amount ) of $5 million is, by force of this item, credited to the OSTF immediately after this item commences.

Returning amounts to the Commonwealth

(2)       The difference between:

                     (a)  the seed funding amount; and

                     (b)  the total of amounts debited from the OSTF under section 52C of the ESOS Act (as inserted by this Schedule) before the 1 July that occurs 1 year after this item commences;

is, by force of this item, debited from the OSTF at the beginning of that 1 July.

Division 4—The Fund Manager and the Contributions Review Panel

52  Termination of appointment of Fund Manager

A person who, immediately before this item commences, is appointed as Fund Manager, ceases, by force of this item, to be Fund Manager after that time.

53  References in Acts and instruments—Fund Manager

(1)       If:

                     (a)  an Act or instrument is in force immediately before this item commences; and

                     (b)  the Act or instrument contains a reference to the Fund Manager;

the Act or instrument has effect after this item commences as if the reference to the Fund Manager were a reference to the TPS Director.

Note:       During the first year after this item commences, instruments can retrospectively amend references to the Fund Manager: see item 59.

(2)       The Minister may, by writing, determine that subitem (1):

                     (a)  does not apply in relation to a specified reference; or

                     (b)  applies, in relation to a specified reference, as if the reference in that subitem to the TPS Director were a reference to the Commonwealth.

A determination under this subitem has effect accordingly.

(3)       The regulations may provide that an instrument containing a reference specified in a determination under paragraph (2)(a) has effect, after this item commences, as if the reference were a reference to a person or body other than the TPS Director or the Commonwealth.

(4)       A determination made under subitem (2) is not a legislative instrument.

54  Operation of laws—Fund Manager

(1)       If, before this item commences, a thing was done by, or in relation to, the Fund Manager, then, for the purposes of the operation of any law of the Commonwealth after this item commences, the thing is taken to have been done by, or in relation to, the TPS Director.

(2)       For the purposes of subitem (1), a thing done before this item commences under a provision that is amended by this Act has effect from that time as if it were done under that provision as amended. However, this is not taken to change the time at which the thing was actually done.

(3)       The Minister may, by writing, determine that subitem (1):

                     (a)  does not apply in relation to a specified thing done by, or in relation to, the Fund Manager; or

                     (b)  applies as if the reference in that subitem to the TPS Director were a reference to the Commonwealth.

A determination under this subitem has effect accordingly.

(4)       The regulations may provide for a thing specified in a determination under paragraph (3)(a) to be taken to have been done by, or in relation to, a person or body other than the TPS Director or the Commonwealth.

(5)       A determination made under subitem (3) is not a legislative instrument.

55  Transitional—transfer of Fund Manager’s records

(1)       This item applies to any records or documents that are in the possession of the Fund Manager immediately before this item commences.

(2)       The records and documents are, by force of this item, transferred to the Commonwealth after this item commences.

56  Termination of appointment of members of Contributions Review Panel

A person who, immediately before this item commences, is a member of the Contributions Review Panel, ceases, by force of this item, to hold office as such a member after that time.

57  References in Acts and instruments—Contributions Review Panel

(1)       If:

                     (a)  an Act or instrument is in force immediately before this item commences; and

                     (b)  the Act or instrument contains a reference to the Contributions Review Panel;

the Act or instrument has effect after this item commences as if the reference to the Contributions Review Panel were a reference to the TPS Advisory Board.

Note:       During the first year after this item commences, instruments can retrospectively amend references to the Contributions Review Panel: see item 59.

(2)       The Minister may, by writing, determine that subitem (1):

                     (a)  does not apply in relation to a specified reference; or

                     (b)  applies, in relation to a specified reference, as if the reference in that subitem to the TPS Advisory Board were a reference to the Commonwealth.

A determination under this subitem has effect accordingly.

(3)       The regulations may provide that an instrument containing a reference specified in a determination under paragraph (2)(a) has effect after this item commences as if the reference were a reference to a person or body other than the TPS Advisory Board or the Commonwealth.

(4)       A determination made under subitem (2) is not a legislative instrument.

58  Operation of laws—Contributions Review Panel

(1)       If, before this item commences, a thing was done by, or in relation to, the Contributions Review Panel, then, for the purposes of the operation of any law of the Commonwealth after this item commences, the thing is taken to have been done by, or in relation to, the TPS Advisory Board.

(2)       For the purposes of subitem (1), a thing done before this item commences under a provision that is amended by this Act has effect after this item commences as if it were done under that provision as amended. However, this is not taken to change the time at which the thing was actually done.

(3)       The Minister may, by writing, determine that subitem (1):

                     (a)  does not apply in relation to a specified thing done by, or in relation to, the Contributions Review Panel; or

                     (b)  applies as if the reference in that subitem to the TPS Advisory Board were a reference to the Commonwealth.

A determination under this subitem has effect accordingly.

(4)       The regulations may provide for a thing specified in a determination under paragraph (3)(a) to be taken to have been done by, or in relation to, a person or body other than the TPS Advisory Board or the Commonwealth.

(5)       A determination made under subitem (3) is not a legislative instrument.

59  Amending instruments may be retrospective

(1)       If:

                     (a)  an instrument is made within the period of 12 months beginning on the day on which this item commences; and

                     (b)  a provision of the instrument amends a reference to the Fund Manager or the Contributions Review Panel;

the provision may be expressed to take effect from the day that this item commences, or a later day in the period referred to in paragraph (a), that occurs before the instrument is made.

(2)       This item has effect despite subsection 12(2) of the Legislative Instruments Act 2003 .

60  Transitional—reviews

(1)       This item applies if, before this item commences:

                     (a)  a person applies for a review of the amount of its annual Fund contribution under section 66 or 68 of the ESOS Act (as in force immediately before this item commences); and

                     (b)  a notice has not been given under section 67 or 69 (as the case requires) of that Act.

(2)       Despite the repeal of Subdivision B of Division 4 of Part 5 (rights of review) of the ESOS Act by this Schedule, that Subdivision continues to apply, after this item commences, as if:

                     (a)  a reference in that Subdivision to the Fund Manager were a reference to the TPS Director; and

                     (b)  a reference in that Subdivision to the Panel were a reference to the Secretary.

Division 5—Payment of TPS levies

61  Application—payment of TPS levies

The requirement to pay a TPS levy imposed by section 14 of the Education Services for Overseas Students (TPS Levies) Act 2012 applies in relation to:

                     (a)  the first calendar year that begins after the day this item commences; and

                     (b)  later calendar years.

Division 6—Miscellaneous

62  Constitutional safety net

(1)       If the operation of this Schedule would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.

(2)       If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in a court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

(3)       In this item:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.

63  Delegation by Minister

(1)       The Minister may, by writing, delegate all or any of his or her powers and functions under this Part to a person.

(2)       The delegate must be:

                     (a)  the Secretary; or

                     (b)  an SES employee, or acting SES employee, in the Department.

Note:       SES employee is defined in section 2B of the Acts Interpretation Act 1901 .

(3)       In exercising powers or functions under a delegation, the delegate must comply with any directions of the Minister.