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

Schedule 2 National registration

Part 1 Main amendments

Education Services for Overseas Students Act 2000

1  Section 9

Repeal the section, substitute:

Division 3 Registration of approved providers

Subdivision A Registration of approved providers

9AA   Recommendation by designated authority that approved provider be registered to provide a course at a location

             (1)  A designated authority may recommend that an approved provider for a course for a location be registered under this Act to provide that course at that location to overseas students.

Risk management approach

             (2)  A designated authority must use a risk management approach when considering whether to make such a recommendation.

Recommendation may relate to new or existing registration

             (3)  A designated authority may make such a recommendation:

                     (a)  for the purposes of the Secretary registering an approved provider under section 9AB; or

                     (b)  for the purposes of the Secretary adding one or more courses at one or more locations to a provider’s registration under section 9AG.

9AB   Registration of approved providers by Secretary

Registering approved providers

             (1)  The Secretary must register an approved provider if:

                     (a)  a designated authority makes a recommendation under section 9AA in relation to the provider; and

                     (b)  the provider is:

                              (i)  a resident of Australia; or

                             (ii)  a Table C provider (within the meaning of the Higher Education Support Act 2003 ); and

                     (c)  the provider has paid the associated initial registration charge; and

                     (d)  if the provider is not a registered provider—the provider has paid its first TPS levy (see Subdivision B of Division 2 of Part 5A); and

                     (e)  in any case—the designated authority has given the Secretary a certificate in accordance with section 9AH; and

                      (f)  the Secretary has no reason to believe that the provider:

                              (i)  is not complying, or will not comply, with this Act or the national code; or

                             (ii)  does not have the principal purpose of providing education; or

                            (iii)  does not have the clearly demonstrated capacity to provide education of a satisfactory standard; or

                            (iv)  is unlikely to be able to provide education of a satisfactory standard; and

Note 1:    The Secretary must notify the relevant designated authority if the Secretary has reason to believe that any of the matters set out in this paragraph apply: see section 14.

Note 2:    For when a higher education provider has the principal purpose of providing education, see section 5A.

                     (g)  if the provider has previously been registered—the provider is not liable for an annual registration charge or late payment penalty that remains unpaid after it became due for payment.

Note:          The Secretary must determine that the provider is registered for a specified period: see section 9AC.

             (2)  The Secretary must not register the provider in any other circumstances.

             (3)  Nothing in subsection (1) of this section creates a duty for the Secretary to seek any information about the matters mentioned.

Registering courses and locations

             (4)  At the time the Secretary registers an approved provider under this section, the Secretary must determine:

                     (a)  the course or courses that the provider is registered to provide; and

                     (b)  the location or locations at which the provider is registered to provide that course or those courses.

Note 1:       For when the approved provider becomes registered to provide a course at a location, see subsection 14A(6).

Note 2:       Under section 9AG, courses and locations can be added later to a provider’s registration.

Renewing registrations

             (5)  To avoid doubt, the Secretary registers a provider under this section if the Secretary renews the provider’s registration.

9AC   Period of registration

             (1)  At the time the Secretary registers an approved provider under section 9AB, the Secretary must determine that the provider is registered for a specified period that is:

                     (a)  more than 2 years; but

                     (b)  no more than 5 years.

             (2)  To avoid doubt, subsection (1) does not limit the Minister’s power under section 83 to cancel a registered provider’s registration within the first 2 years of the provider’s registration.

             (3)  The period specified under subsection (1) may be different from the period stated by the designated authority under paragraph 9AH(i).

             (4)  The Secretary may vary the period specified under subsection (1) at any time, but the varied period must not:

                     (a)  end earlier than 2 years; nor

                     (b)  extend beyond 5 years;

from the day on which the provider was registered.

When registration would otherwise expire before renewal completed

             (5)  If:

                     (a)  a provider’s registration is due to expire; and

                     (b)  before that expiry, a designated authority makes a recommendation under section 9AA in relation to the provider; and

                     (c)  by the time the provider’s registration would otherwise expire, the Secretary has not yet made a decision whether to register the provider under section 9AB;

the provider’s registration is taken to continue until the Secretary makes his or her decision.

When registration expires before course completed

             (6)  If a provider’s registration is due to expire before the provider has finished providing a course for which the provider is registered, the provider is taken to be registered to provide the course until the provider has finished providing the course to the students who were enrolled in that course before that registration was due to expire.

9AD  Imposing conditions on provider’s registration when designated authority has imposed conditions

Imposing conditions at time of registering providers

             (1)  If:

                     (a)  a provider is approved by a designated authority to provide courses to overseas students; and

                     (b)  the designated authority has imposed a condition on the provider relating to its provision of those courses; and

                     (c)  the provider was not registered under section 9AB at the time the condition was imposed; and

                     (d)  the provider subsequently becomes registered under that section;

the Secretary may, at the time of registering the provider, impose that condition on the provider’s registration.

Imposing conditions on registered providers

             (2)  If:

                     (a)  a provider is approved by a designated authority to provide courses to overseas students; and

                     (b)  the designated authority has imposed a condition on the provider relating to its provision of those courses; and

                     (c)  the provider was registered under section 9AB at the time the condition was imposed;

the Secretary or Minister may, by notifying the provider in writing, impose that condition on the provider’s registration.

Secretary or Minister to have regard to designated authority’s advice

             (3)  In deciding whether to impose a condition under this section, the Secretary or Minister must:

                     (a)  have regard to any advice of the relevant designated authority; and

                     (b)  use a risk management approach.

9AE   Secretary’s conditions on provider’s registration

             (1)  The Secretary, on the Secretary’s own initiative, may impose a condition on a provider’s registration.

             (2)  The Secretary may impose a condition:

                     (a)  either:

                              (i)  at the time that a provider is registered; or

                             (ii)  at any time before a provider’s registration expires; and

                     (b)  either generally or in respect of any one or more specified courses for any one or more specified locations.

             (3)  To avoid doubt, section 9AD does not limit the Secretary’s power to impose a condition under this section.

             (4)  The Secretary must use a risk management approach in deciding whether to impose a condition under this section.

9AF   Variation or removal of conditions

             (1)  The Secretary may vary or remove a condition that the Secretary has imposed under section 9AD or 9AE.

             (2)  The Minister may vary or remove a condition that the Minister has imposed under section 9AD.

             (3)  The Secretary and the Minister must use a risk management approach in deciding whether to vary or remove a condition under this section.

9AG   Changing the scope of a provider’s registration

             (1)  The Secretary must add a course at a specified location to a provider’s registration if:

                     (a)  a designated authority makes a recommendation under section 9AA that the provider be registered to provide that course at that location; and

                     (b)  if the provider is not currently registered to provide any courses at the location being added—the designated authority has given the Secretary a certificate in accordance with section 9AH.

             (2)  The Secretary must not add one or more courses at one or more locations to a provider’s registration in any other circumstances.

             (3)  Nothing in subsection (1) creates a duty for the Secretary to seek any information about the matters mentioned.

Subdivision B Provisions relating to registration

9AH   Certificate from designated authority

                   For the purposes of paragraphs 9AB(1)(e) and 9AG(1)(b), a designated authority who recommends under section 9AA that an approved provider be registered to provide a course at a location must give the Secretary a certificate, in the form approved by the Secretary for the purposes of this section, that:

                     (a)  relates to the provider’s compliance with the national code; and

                     (b)  except in the case of a provider mentioned in subsection 9B(1)—states that the provider has satisfied the designated authority that the provider is fit and proper to be registered; and

                     (c)  in any case—states that the provider has the principal purpose of providing education; and

                     (d)  states that the provider has clearly demonstrated the capacity to provide education of a satisfactory standard (including by having an appropriate business model and access to adequate financial resources, for example); and

                     (e)  if applicable, states that the provider meets the ELICOS Standards; and

                      (f)  if applicable, states that the provider meets the Foundation Program Standards; and

                     (g)  states the results of the designated authority’s risk assessment of the provider; and

                     (h)  states the conditions (if any) that should apply to the provider’s registration for the course for the location, in view of the results of that risk assessment; and

                      (i)  if the certificate is for the purposes of paragraph 9AB(1)(e)—states the period (of no less than 2 years and no more than 5 years) for which the provider should be registered.

Note 1:       For paragraph (b), the designated authority must have regard to the matters referred to in section 9B in deciding whether a provider is fit and proper to be registered.

Note 2:       For paragraph (c), see section 5A for when a higher education provider has the principal purpose of providing education.

2  Sections 10 and 11

Repeal the sections.

3  Sections 14A and 14B

Repeal the sections, substitute:

Division 4 The Register

14A   The Register

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

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

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

Contents of the Register

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

                     (a)  the name of each provider who is registered;

                     (b)  the name of each course which the provider is registered to provide, and each location at which the provider is registered to provide that course;

                     (c)  if the provider is not an individual—the name of the principal executive officer of the provider;

                     (d)  a unique identifier allocated to the provider;

                     (e)  a unique identifier allocated to each course at each location for which the provider is registered;

                      (f)  the day on which the provider is registered;

                     (g)  the period of the provider’s registration;

                     (h)  any conditions that are imposed on the provider’s registration (either generally or in relation to specific courses and locations);

                      (i)  any other matters prescribed by the regulations.

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

When an approved provider is registered to provide a course at a location

             (6)  An approved provider is registered to provide a course at a location when the Secretary has entered the name of the provider, the course and the location on the Register.

14B   Updating the Register

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

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

                     (a)  a provider’s registration is suspended or cancelled for any one or more courses for any one or more locations; or

                     (b)  a provider’s registration has a condition imposed on it; or

                     (c)  a provider’s registration has a suspension or condition removed, or a condition varied; or

                     (d)  a provider applies to the Administrative Appeals Tribunal for review of a decision to suspend or cancel, or to impose a condition on, the provider’s registration.

Note:          The Register can also be updated under section 103 (Immigration Minister’s suspension certificate).

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



 

Part 2 Consequential amendments

Education Services for Overseas Students Act 2000

4  Before section 1

Insert:

Division 1 Preliminary

5  Paragraph 4B(1)(b)

Repeal the paragraph, substitute:

                     (b)  to the extent that a reference in a provision of this Act to a designated authority relates to a designated authority covered by table item 4 of the table in subsection 7A(1)—the reference included a reference to the Territories Minister.

6  Paragraph 4B(2)(d)

Repeal the paragraph.

7  Section 5 (definition of approved provider )

Repeal the definition, substitute:

approved provider for a course for a location means a provider approved by a relevant designated authority to provide that course at that location to overseas students, other than an approval that has been withdrawn by that authority.

8  Section 5 (definition of Commonwealth designated authority )

Repeal the definition.

9  Section 5 (definition of condition )

Repeal the definition, substitute:

condition , in relation to a provider’s registration, means a condition imposed on the registration under section 9AD or 9AE or subsection 83(3).

10  Section 5 (definition of modification )

Repeal the definition.

11  Section 5 (definition of Register )

Omit “section 10”, substitute “section 14A”.

12  Section 5 (definition of registered )

Repeal the definition, substitute:

registered means registered under Part 2.

Note:          Other grammatical forms of the word registered (such as registration ) have a corresponding meaning (see section 18A of the Acts Interpretation Act 1901 ).

13  Section 5 (definition of registered provider )

Omit “State” (wherever occurring), substitute “location”.

14  After section 5

Insert:

5A   When higher education providers are taken to have the principal purpose of providing education

                   For the purposes of subparagraphs 9AB(1)(f)(ii) and 14(1)(a)(ii) and paragraphs 9AH(c) and 83(1C)(a), a higher education provider is taken to have the principal purpose of providing education if its principal purpose is either or both of the following:

                     (a)  providing education;

                     (b)  conducting research.

15  Subsection 7A(1)

Omit “for a State”.

16  Subsection 7A(1) (cell at table item 4, column headed “the designated authority is:”)

Repeal the cell, substitute:

 

the person responsible under a law of a State for approving providers to provide courses to overseas students at locations in the State

 

17  Paragraphs 7A(2)(a) and (b)

Omit “for the State”.

18  Subsection 7A(3)

Omit “for a State”.

19  At the end of Part 1

Add:

Division 2 Guide to this Act

7B   Guide to this Act

•      This Act regulates providers who provide courses to overseas students.

•      A person who provides a course at a location to an overseas student must be registered to provide that course at that location (or do so in accordance with an arrangement with a provider who is so registered).

•      This Act and the national code impose obligations on registered providers, such as notification, record keeping and financial requirements.

•      In particular, there are obligations on registered providers when the provider or an overseas student of the provider defaults, and does not start or finish a course. The provider is required to provide a refund to the student. For a provider default, the provider may instead provide an alternative course for the student at the provider’s expense.

•      If a provider that has defaulted does not discharge its obligations to an overseas student, the TPS Director must provide the student with options for suitable alternative courses (if any such courses are available).

•      In the case of a default, a call is made on the Overseas Students Tuition Fund to pay for alternative courses, or to provide refunds to students, if providers have not already done so.

20  Before section 8

Insert:

Division 1 Guide to this Part

8A   Guide to this Part

•      A person who provides a course at a location to an overseas student must be registered to provide that course at that location (or do so in accordance with an arrangement with a provider who is so registered).

•      Division 2 creates an offence for a person who contravenes that requirement. It is also an offence for a registered provider to offer courses, or hold itself out as able to provide a course, to overseas students without being appropriately registered (or doing so in accordance with an appropriate arrangement).

•      Approved providers are registered under Division 3. A provider’s registration lists all of the courses that the provider is registered to provide, and the locations at which the provider is registered to provide those courses. Conditions can be imposed on a provider’s registration. A registration lasts for a minimum of 2 and a maximum of 5 years.

 â€¢     The Register (which contains each provider’s registration) is maintained, and kept up-to-date, under Division 4.

Division 2 Offence for providing or promoting a course without a registered provider

21  Paragraphs 8(1)(a) to (d)

Omit “in a State”, substitute “at a location”.

22  Paragraph 8(1)(e)

Omit “for that particular State”, substitute “at that particular location”.

23  Paragraph 8(1)(f)

Omit “for a State”, substitute “for that particular location”.

24  Subparagraph 8(3)(b)(iii)

Omit “State”, substitute “location”.

25  Subparagraph 8(3)(b)(iv)

Omit “for a State”, substitute “for the location”.

26  Before subsection 9B(1)

Insert:

          (1A)  This section applies for the purposes of the following provisions:

                     (a)  paragraph 9AH(b);

                     (b)  subsection 83(1B);

                     (c)  subparagraphs 89A(1A)(b)(i) and (ii).

27  Subsection 9B(1)

Omit “Paragraphs 9(2)(ca) and 9A(2)(e)”, substitute “The provisions referred to in subsection (1A)”.

28  Subsection 9B(2)

Omit “it is satisfied as mentioned in paragraph 9(2)(ca) or 9A(2)(e), the designated authority”, substitute “to be satisfied as mentioned in a provision referred to in subsection (1A), the Minister, Secretary or designated authority (as the case requires)”.

29  Paragraph 9B(2)(b)

Omit “States”, substitute “locations”.

30  Section 14 (heading)

Repeal the heading, substitute:

14   Notifying designated authorities if the Secretary suspects non-compliance with this Act or the national code etc.

31  Subparagraph 14(1)(a)(iii)

Omit “and”, substitute “or”.

32  At the end of paragraph 14(1)(a)

Add:

                            (iv)  is unlikely to be able to provide education of a satisfactory standard; and

33  At the end of subsection 14(1)

Add:

Note:          For when a higher education provider has the principal purpose of providing education, see section 5A.

34  Subsection 14(1A)

Repeal the subsection.

35  Before Division 1 of Part 3

Insert:

Division 1A Guide to this Part

15A   Guide to this Part

•      A registered provider has obligations under this Part.

•      Division 1 contains general obligations on registered providers. For example, a registered provider must not engage in misleading or deceptive conduct when recruiting or providing courses to overseas students. Other obligations relate to notification, record keeping and financial requirements.

•      Enforcement action (such as imposing conditions, or suspending or cancelling a registration) can be taken under Part 6 in relation to a registered provider who breaches this Part.

36  Paragraph 17(1)(b)

Omit “States”, substitute “locations”.

37  Before section 33

Insert:

Division 1 Guide to this Part

33A   Guide to this Part

•      The Minister makes a national code under this Part.

•      The purpose of the code is to provide nationally consistent standards and procedures for registered providers in providing courses to overseas students, dealing with agents and other providers, and providing refunds.

•      Designated authorities investigate breaches of the code.

•      Enforcement action (such as imposing conditions, or suspending or cancelling a registration) can be taken under Part 6 in relation to a registered provider who breaches the code.

Division 2 The national code

38  Subsection 33(1)

Omit “expressed to commence on a day at least 28 days after it is registered in the Federal Register of Legislative Instruments”.

39  Subsection 33(1) (note)

Repeal the note, substitute:

Note:          The Minister may amend the national code by legislative instrument: see subsection 33(3) of the Acts Interpretation Act 1901 .

40  Section 34

Omit “registration and”.

41  Section 36

Repeal the section.

42  Paragraphs 38(a), (c) and (f)

Repeal the paragraphs.

43  Section 40 (note)

Omit “section 9”, substitute “section 9AB”.

44  Section 43 (heading)

Repeal the heading, substitute:

43   Designated authorities to investigate breaches of the national code

45  Paragraph 43(1)(a)

Omit “for a State”, substitute “for a course for a location”.

46  Before Division 1 of Part 6

Insert:

Division 1A Guide to this Part

83A   Guide to this Part

•      Compliance with this Act, the national code and any conditions on a provider’s registration is enforced under this Part.

•      The Minister can take enforcement action (such as imposing conditions, or suspending or cancelling a registration) under Division 1. Such action can be taken in relation to a provider’s registration generally or in relation to a specific course at a specific location. Division 1 also provides for automatic suspension or cancellation of a provider’s registration in certain circumstances.

•      The Immigration Minister can give a suspension certificate under Division 2 if a significant number of overseas students or intending overseas students are entering or remaining in Australia for a purpose not contemplated by their visas. A registered provider must not offer courses, or hold itself out as able to provide a course, to overseas students while such a certificate is in force for the provider.

•      Division 3 provides for certain offences, such as failing to identify a registered provider in written material or providing false or misleading information.

47  Subsection 83(1B)

Omit “(having regard to the matters referred to in subsection 9B(2))”.

48  Subsection 83(1B) (note)

Omit “Note”, substitute “Note 1”.

49  At the end of subsection 83(1B)

Add:

Note 2:       The Minister must have regard to the matters referred to in section 9B in deciding whether a provider is fit and proper to be registered.

50  Subsection 83(1C) (note)

Omit “Note”, substitute “Note 1”.

51  At the end of subsection 83(1C)

Add:

Note 2:       For when a higher education provider has the principal purpose of providing education, see section 5A.

52  Subsection 83(1D)

Repeal the subsection.

53  Paragraphs 83(3)(a) to (c)

Omit “States”, substitute “locations”.

54  Subsection 83(4)

Omit “State”, substitute “location”.

55  Section 88

Repeal the section.

56  Subsection 89(1)

Repeal the subsection, substitute:

             (1)  The registration of a provider for a course for a location is suspended by force of this subsection if the relevant designated authority suspends the provider’s approval for that course for that location.

Note:          Section 95 sets out the effect of suspension.

57  Subsection 89(2)

Omit “State’s”, substitute “designated authority’s”.

58  Subsections 89A(1) to (2)

Repeal the subsections, substitute:

          (1A)  This section applies if:

                     (a)  one or more designated authorities approve a provider (other than a provider covered by subsection 9B(1)) to provide a course at a location; and

                     (b)  either:

                              (i)  a designated authority mentioned in paragraph (a) tells the Secretary that the authority is no longer satisfied that the provider is fit and proper to be registered; or

                             (ii)  the Secretary is no longer satisfied that the provider is fit and proper to be registered.

Note:          The designated authority and Secretary must have regard to the matters referred to in section 9B in deciding whether a provider is fit and proper to be registered.

Suspension of registration of all courses at all locations

          (1B)  The registration of the provider is suspended for all courses for all locations by force of this subsection, unless subsection (1C) applies.

Note:          Section 95 sets out the effect of suspension.

Suspension when the designated authority which notifies the Secretary is a State designated authority

          (1C)  The registration of the provider is suspended for all courses for all locations in a State, by force of this subsection, if:

                     (a)  subparagraph (1A)(b)(i) applies and subparagraph (1A)(b)(ii) does not apply; and

                     (b)  the designated authority mentioned in subparagraph (1A)(b)(i) is a designated authority referred to in table item 4 of the table in subsection 7A(1) in relation to that particular State.

Note:          Section 95 sets out the effect of suspension.

          (1D)  If:

                     (a)  subsection (1C) applies in relation to the registration of a provider; and

                     (b)  either the National VET Regulator or TEQSA has approved the provider to provide courses at one or more locations;

then the registration of the provider is also suspended for all of those courses at all locations.

Note:          Section 95 sets out the effect of suspension.

Removal of suspension

             (2)  The Minister may give the provider a notice that sets out the effect of subsection (3) if:

                     (a)  the designated authority mentioned in subparagraph (1A)(b)(i) tells the Secretary that the authority is again satisfied that the provider is fit and proper to be registered; or

                     (b)  the Secretary is again satisfied that the provider is fit and proper to be registered;

as the case requires.

59  Subsection 90(1)

Omit “States”, substitute “locations”.

60  Section 91 (heading)

Repeal the heading, substitute:

91   Automatic cancellation of registration for course for location if provider ceases to be approved for that course and location

61  Section 91

Omit “State” (wherever occurring), substitute “location”.

62  Section 92

Omit “States”, substitute “locations”.

63  Before subsection 93(1)

Insert:

Notice requirements before Minister makes decision

64  Subsection 93(1)

Omit “subsection 14A(2)” (wherever occurring), substitute “subsection 9AD(2)”.

65  Before subsection 93(1A)

Insert:

Notice requirements before Secretary makes decision

66  Subsection 93(1A)

Omit “subsection 14B(1)”, substitute “subsection 9AE(1)”.

67  Before subsection 93(2)

Insert:

Consideration of submissions received and giving notice of decision

68  Subsection 95(1)

Omit “for a State”, substitute “for a location”.

69  Paragraphs 95(1)(a), (b) and (c)

Omit “for the State”, substitute “at the location”.

70  Subsection 95(2)

Omit “State”, substitute “location”.

71  Section 96

Repeal the section.

72  Paragraphs 101(1)(a) to (c)

Omit “in any State”, substitute “at any location”.

73  Subsection 107(1)

Omit “(1)”.

74  Paragraphs 107(1)(a) to (c)

Omit “in a State”, substitute “at a location”.

75  Subsection 107(1)

After “identify”, insert “any one or more of the following”.

76  Paragraph 107(1)(d)

Omit “and”.

77  Paragraph 107(1)(e)

Repeal the paragraph, substitute:

                     (e)  the unique identifier allocated to the registered provider under paragraph 14A(4)(d);

78  Before Division 1 of Part 7

Insert:

Division 1A Guide to this Part

111A   Guide to this Part

•      Registered providers’ compliance with this Act and the national code is monitored under this Part.

•      The Secretary can give a production notice (requiring a person to give information or documents) or an attendance notice (requiring a person to attend and answer questions) under Division 2.

•      An authorised employee may apply for a monitoring warrant under Division 3. A monitoring warrant allows the employee to enter and search the premises of a registered provider. If the employee finds evidential material on the premises, the employee may secure the material until a search warrant can be obtained.

•      Alternatively, an authorised employee may apply for a search warrant under Division 4. As well as allowing the employee to enter and search the premises of a registered provider, the employee may also seize things under a search warrant.

79  Before Division 1 of Part 8

Insert:

Division 1A Guide to this Part

169A   Guide to this Part

•      This Part contains miscellaneous provisions, such as the following:

               (a)     publication of enforcement action and annual reports;

              (b)     delegation powers;

               (c)     provisions relating to paying amounts like fees, penalties and charges;

              (d)     giving information to relevant bodies;

               (e)     review of decisions.

80  Paragraphs 176(1)(a) to (ab)

Repeal the paragraphs, substitute:

                    (aa)  a decision that an approved provider should not be registered under section 9AB; or

                   (ab)  a decision that an approved provider be registered for a specified period under section 9AC, or a decision under that section to vary that specified period; or

                    (ac)  a decision to impose a condition on a provider’s registration under section 9AD or 9AE; or

                   (ad)  a decision to vary a condition under section 9AF; or

                    (ae)  a decision that a course at a location should not be added to a provider’s registration under section 9AG; or

81  Paragraph 176(1)(b)

Omit “or 88”.



 

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

82  Section 12 (note 1)

Repeal the note, substitute:

Note 1:       A provider cannot be registered under section 9AB until it has paid the initial registration charge: see paragraph 9AB(1)(c).

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

Education Services for Overseas Students Act 2000

83  Paragraph 9AB(1)(c)

Repeal the paragraph, substitute:

                     (c)  the provider has paid the first entry to market charge (unless the provider is exempt from the requirement to do so under regulations made under subsection 6(4) of the Education Services for Overseas Students (Registration Charges) Act 1997 ); and

84  Paragraph 9AB(1)(g)

Omit “annual registration charge or”, substitute “annual registration charge, a second or third entry to market charge or a”.

85  Subsection 12(1) (note 1)

Repeal the note, substitute:

Note 1:       A provider must pay 3 entry to market charges during the first 2 years that the provider is first registered. A provider cannot get registered under section 9AB until it has paid the first entry to market charge: see paragraph 9AB(1)(c).

86  Paragraph 12(2)(a)

Omit “section 9”, substitute “section 9AB”.

Education Services for Overseas Students Amendment (Registration Charges Consequentials) Act 2011

87  Subitem 17(4) of Schedule 1

Omit “for a State under section 9”, substitute “under section 9AB”.

Education Services for Overseas Students (Registration Charges) Amendment Act 2011

88  Subitem 14(2) of Schedule 1

Omit “for a State under section 9”, substitute “under section 9AA”.

Division 3—Repeal of provisions if this Act commences before item 7 of Schedule 1 to the Registration Charges Acts

Education Services for Overseas Students Amendment (Registration Charges Consequentials) Act 2011

89  Item 7 of Schedule 1

Repeal the item.

90  Subitems 17(1) and (2) of Schedule 1

Repeal the subitems.

91  Subitem 17(4) of Schedule 1

Omit “amendments made by items 7 and”, substitute “amendment made by item”.

Division 4—Repeal of provisions if this Act commences before other items in the Registration Charges Acts

Education Services for Overseas Students Amendment (Registration Charges Consequentials) Act 2011

92  Items 5 and 6 of Schedule 1

Repeal the items.

93  Items 8 and 9 of Schedule 1

Repeal the items.



 

Part 4 Application, saving and transitional provisions

Division 1—Definition of ESOS Act

94  Definition of ESOS Act

In this Part:

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

Division 2—Application and transitional provisions for national registration

95  Application—recommendations of designated authorities

Recommendations made after commencement

(1)       The amendments made by Parts 1 to 3 of this Schedule apply in relation to any recommendation, made by a designated authority after this item commences, that an approved provider be registered under the ESOS Act to provide a course at a location to overseas students.

Recommendations made before commencement

(2)       The amendments made by Parts 1 to 3 of this Schedule also apply in relation to any recommendation made by a designated authority that an approved provider be registered under the ESOS Act to provide a course for a State to overseas students if:

                     (a)  the recommendation is made before this item commences; and

                     (b)  immediately before this item commences, the Secretary has not yet decided whether to register the provider for the course for the State under section 9 of that Act.

(3)       If, after this item commences, the Secretary decides:

                     (a)  under section 9AB of the ESOS Act (as inserted by this Schedule) to register a provider referred to in subitem (2) of this item; or

                     (b)  under section 9AG of that A ct (as inserted by this Schedule) to add a course to the registration of a provider referred to in subitem (2) of this item;

the Secretary must determine the location or locations at which the provider is to be registered to provide the course.

Choosing a registration to add to

(4)       If:

                     (a)  after this item commences, the Secretary decides to add a course at a location to a provider’s registration under section 9AG of the ESOS Act (as inserted by this Schedule); and

                     (b)  the provider already has 2 or more other separate registrations to provide courses to overseas students;

the Secretary may choose which registration to add the new course to.

(5)       The Secretary must use a risk management approach when considering which registration to add a new course to.

Review of decisions

(6)       The ESOS Act applies as if section 176 of that Act included a reference to:

                     (a)  a decision under subitem (3) of this item to determine the location or locations at which the provider is to be registered to provide the course; and

                     (b)  a decision under subitem (4) of this item to choose which registration to add a new course to.

Note:       Section 176 of the ESOS Act allows applications to be made to the Administrative Appeals Tribunal for review of decisions.

96  Transitional—requesting amalgamation of registrations

(1)       This item applies if, at the time this item commences, a provider has more than one registration under the ESOS Act.

Request to amalgamate registrations

(2)       The provider may, in the approved form, request the Secretary to amalgamate all of the provider’s registrations into one registration.

(3)       The Secretary may approve a form for the purposes of subitem (2).

Secretary may amalgamate registrations or refuse request

(4)       If a provider makes a request under subitem (2), the Secretary may:

                     (a)  amalgamate all of the provider’s registrations into one registration; or

                     (b)  refuse to amalgamate all of the provider’s registrations into one registration.

(5)       The Secretary may choose which of the provider’s registrations is to become the provider’s single registration under the ESOS Act.

(6)       The Secretary must use a risk management approach when considering which registration to choose to become the provider’s single registration.

(7)       The Secretary may remove a provider’s registration from the Register if the Secretary amalgamates that registration into another registration under this item.

Review of decisions

(8)       The ESOS Act applies as if section 176 of that Act included a reference to:

                     (a)  a decision under subitem (4) of this item to refuse to amalgamate all of the provider’s registrations into one registration; and

                     (b)  a decision under subitem (5) of this item to choose which registration is to become the provider’s single registration.

Note:       Section 176 of the ESOS Act allows applications to be made to the Administrative Appeals Tribunal for review of decisions.

Division 3—Other application, saving and transitional provisions

97  Transitional—old registrations

A provider who is registered under section 9 of the ESOS Act immediately before this item commences is taken, after that time, to be registered under section 9AB of that Act.

98  Saving—cancellation or suspension of registration of courses for States

Despite the amendment of paragraphs 9B(2)(b) and 17(1)(b) of the ESOS Act by this Schedule, those paragraphs continue to operate, in relation to a cancellation or suspension that occurs before this item commences, as if those amendments had not been made.

99  Transitional—locations already in Register

(1)       This item applies if:

                     (a)  immediately before this item commences, a provider is registered under the ESOS Act to provide a course for a State; and

                     (b)  the Register also includes a reference to one or more locations in that State at which the provider provides that course.

(2)       For the purposes of the ESOS Act as amended by this Schedule, the provider is taken, after this item commences, to be registered to provide that course at that location or those locations.

(3)       For the purposes of the ESOS Act as amended by this Schedule, if:

                     (a)  immediately before this item commences, a provider’s registration for a course for a State is suspended; and

                     (b)  under subitem (2), the provider is taken to be registered to provide the course at a location or at locations in that State;

the provider’s registration is taken, after this item commences, to be suspended for the course for that location or those locations.

(4)       For the purposes of the ESOS Act as amended by this Schedule, if:

                     (a)  immediately before this item commences, a provider’s registration for all courses for all States is suspended; and

                     (b)  under subitem (2), the provider is taken to be registered to provide a course at a location or locations;

the provider’s registration is taken, after this item commences, to be suspended for all courses for all locations.

100  Transitional—approved form and certificates

Approved form

(1)       A form that has been approved for a State for the purposes of paragraph 9(2)(c) of the ESOS Act immediately before this item commences is taken, after that time, to have been approved for the purposes of section 9AH of that Act (as inserted by this Schedule).

Certificates

(2)       If:

                     (a)  a designated authority gives the Secretary a certificate under paragraph 9(2)(c) of the ESOS Act before this item commences; and

                     (b)  immediately before this item commences, the Secretary has not yet decided whether to register the provider to whom the certificate relates;

the certificate is taken, after this item commences, to have been given under section 9AH of that Act (as inserted by this Schedule).

(3)       If a designated authority referred to in subitem (2) tells the Secretary in writing, for the purposes of paragraph 9(2)(ca) of the ESOS Act, that the provider has satisfied the designated authority that the provider is fit and proper to be registered, the designated authority is taken to have included such a statement in a certificate for the purposes of paragraph 9AH(b) of that Act (as inserted by this Schedule).

101  Application—period of registration

Subsection 9AC(4) of the ESOS Act (as inserted by this Schedule) applies to any registration of a provider (whether the provider is registered before or after this item commences).

102  Application—powers in relation to conditions

Sections 9AD, 9AE and 9AF of the ESOS Act (as inserted by this Schedule) apply in relation to any condition imposed on a provider’s registration (whether before or after this item commences).

103  Saving—the Register

The repeal of section 10 of the ESOS Act by this Schedule does not affect the continuity of the Register.

104  Saving—allocated numbers

If:

                     (a)  before this item commences, a number has been allocated to a provider under paragraph 10(4)(c) of the ESOS Act; and

                     (b)  immediately before this item commences, the provider is registered to provide a course for a State;

that number is taken, after this item commences, to be a unique identifier that is allocated under paragraph 14A(4)(d) of that Act (as inserted by this Schedule).

105  Transitional—regulations

Regulations that are in force under paragraph 10(4)(d) of the ESOS Act immediately before this item commences are taken, after that time, to have been made for the purposes of paragraph 14A(4)(i) of that Act (as inserted by this Schedule).

106  Transitional—conditions

(1)       A condition that is in force under section 14A of the ESOS Act immediately before this item commences is taken, after that time, to have been imposed under section 9AD of that Act (as inserted by this Schedule).

(2)       A condition that is in force under section 14B of the ESOS Act immediately before this item commences is taken, after that time, to have been imposed under section 9AE of that Act (as inserted by this Schedule).

107  Application—amendments to section 89

The repeal of subsection 89(1) of the ESOS Act by this Schedule does not affect the continuity of any suspension of the registration of a provider that is in force under that subsection immediately before this item commences.

108  Application—amendments to section 89A

(1)       The amendments to section 89A of the ESOS Act made by this Schedule apply in relation to any registration of a provider (whether the provider is registered before or after this item commences).

(2)       The repeal of subsections 89A(1) to (1B) of the ESOS Act by this Schedule does not affect the continuity of any suspension of the registration of a provider that is in force under any of those subsections immediately before this item commences.

(3)       The repeal of subsection 89A(2) of the ESOS Act by this Schedule does not affect the continuity of any notice:

                     (a)  that is given under that subsection before this item commences; and

                     (b)  in relation to which, immediately before this item commences, the provider has not yet paid the associated reinstatement fee.