Commonwealth: Education Services for Overseas Students Act 2000 (Cth)

Education Services for Overseas Students Act 2000 No. 164, 2000 Compilation No. 44 Compilation date: 14 October 2024 Includes amendments: Act No. 39, 2024 About this compilation This compilation This is a compilation of the Education Services for Overseas Students Act 2000 that shows the text of the law as amended and in force on 14 October 2024 (the compilation date). The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law. Application, saving and transitional provisions for provisions and amendments If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Editorial changes For more information about any editorial changes made in this compilation, see the endnotes. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law. Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents Part 1—Introduction Division 1—Preliminary 1 Short title 2 Commencement 3 Crown to be bound 4 Criminal Code applies 4A Objects 4B Extension of this Act to Norfolk Island, Christmas Island and Cocos (Keeling) Islands 5 Definitions 5AA Definition of course 5A When registered higher education providers are taken to have the principal purpose of providing education 6 Meaning of associate 6A Meaning of authorised officer 6B Meaning of DSA assessment certificate and DSA recommendation certificate 6C Meaning of ESOS agency 6D Meaning of exempt provider 6E Meaning of provider 7 Meaning of tuition fees 7A Deciding whether a provider or registered provider is fit and proper to be registered etc. 7AA No duty imposed on designated State authorities 7AB Application to former registered providers Division 2—Guide to this Act 7B Guide to this Act Part 2—Registration of providers Division 1—Guide to this Part 8A Guide to this Part Division 2—Offence for providing or promoting a course without a registered provider 8 Offence: providing or promoting a course without a registered provider Division 3—Registration of providers Subdivision A—Application for registration 9 Provider may apply to be registered 10 ESOS agency for provider may register provider 10A Notice of registration Subdivision B—Conditions of registration 10B Conditions of registration 10C Conditions imposed by designated State authorities on the approval of school providers after registration Subdivision C—Renewal of registration 10D Registered provider may apply to renew registration 10E ESOS agency for registered provider may renew registration 10F Registration continues until decision on renewal takes effect 10G Notice of renewal of registration Subdivision D—Changes to registration etc. 10H Registered provider may apply to add one or more courses at one or more locations to registration 10J ESOS agency for registered provider may add one or more courses at one or more locations to registration 10K Notice of addition of one or more courses at one or more locations to registration 10L Extension of a registered provider's period of registration 10M Continuation of registration if provider has not finished providing course before expiry of registration Subdivision E—Other registration provisions 11 When a provider or registered provider meets the registration requirements 11A Rules relating to applications for registration etc. 11B ESOS agency may request further information or documents 11C Copies of decision notices to be given by the ESOS agency 13 TPS Director may require information 14 Notifying designated State authorities for approved school providers of non‑compliance with this Act etc. Division 4—The Register 14A The Register 14B Updating the Register Part 3—Obligations on registered providers Division 1A—Guide to this Part 15A Guide to this Part Division 1—General obligations 15 Registered providers must not engage in misleading or deceptive conduct 16 Only Australian residents and Table C providers may be registered 17 Registered providers must notify their ESOS agency of offences etc. by associates and high managerial agents 17A Registered providers must notify their ESOS agency of certain other events 18 Payments to providers 19 Giving information about accepted students 21 Record keeping 21A Obligations relating to the agents of registered providers 23 CRICOS annual registration charge 24 TPS levies 26 Disclosure obligations of registered providers Division 2—Tuition fees 27 Tuition fees 28 Obligation for registered provider to maintain account 29 Obligations in relation to account money 30 Regulations 31 Exemption from requirement 32 Offence Part 4—The national code Division 1—Guide to this Part 33A Guide to this Part Division 2—The national code 33 The national code 34 Purpose of the national code 38 Contents of the national code 40 Legal effects of the national code 41 Notification of the national code 44 Regulations may prescribe penalties Part 5—Tuition protection service Division 1—Guide to this Part 45 Guide to this Part Division 2—Obligations on registered providers when a provider or student defaults Subdivision A—Provider defaults 46A When a registered provider defaults 46B Registered providers to notify of provider default 46D Obligations on registered providers in case of provider default 46E Offence for failure to discharge obligations 46F Registered providers to notify of outcome of discharge of obligations Subdivision B—Student defaults 47A When a student defaults 47B Requirement to make written agreement about student default 47D Refund under a written agreement about student default 47E Refund in other cases 47F Offence for failure to enter agreement that complies with requirements 47G Offence for failure to provide refund 47H Registered providers to notify of outcome of discharge of obligations Subdivision C—Recovering an amount 48 Recovering an amount Division 3—Student placement service 49 Student placement service Division 4—Calls on the OSTF 50A When a call is made on the OSTF 50B What the TPS Director must do when a call is made 50C Consequences of a payment under section 50B 50D TPS Director to notify Immigration Secretary 50E Right to refund may be cancelled etc. without compensation 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 Division 2—Overseas Students Tuition Fund and TPS levies Subdivision A—Overseas Students Tuition Fund 52A Name of Fund 52B Credits to the OSTF 52C Purposes of the OSTF Subdivision B—TPS levies 53A TPS Director to work out the amount of TPS levies 53B Notice of amount of TPS levy 53C Notifying the ESOS agency of payment of first TPS levy 53D Reminder notices Division 3—TPS Director 54A Appointment of TPS Director 54B Functions of the TPS Director 54C Remuneration and allowances 54D Leave of absence 54E Restrictions on outside employment 54F Disclosure of interests 54G Resignation 54H Termination of appointment 54J Other terms and conditions 54K Acting TPS Director 54L Consultants 54M Indemnity 54N Application of finance law Division 4—TPS Advisory Board Subdivision A—Appointment of Board members 55A Establishment 55B Function of the Board 55C Membership 55D Appointment of Board members 55E Remuneration and allowances 55F Leave of absence 55G Restrictions on outside employment 55H Disclosure of interests 55J Disclosure of interests to the Board 55K Resignation 55L Termination 55M Other terms and conditions 55N Acting appointments Subdivision B—Meetings of the TPS Advisory Board 56A Convening meetings 56B Presiding at meetings 56C Quorum 56D Voting at meetings 56E Conduct of meetings 56F Minutes 56G Decisions without meetings Part 6—Conditions, suspension and cancellation etc. Division 1A—Guide to this Part 83A Guide to this Part Division 1—Conditions, suspension and cancellation Subdivision A—Sanctions for non‑compliance etc. 83 ESOS agency may impose sanctions for non‑compliance etc. 84 ESOS agency may take further action 85 ESOS agency may take action for breaches occurring before provider was registered 86 Examples of conditions 87 Breaches of this Act etc. by approved school providers Subdivision C—Automatic suspension and cancellation 89 Automatic suspension if registered provider is no longer fit and proper 90 Automatic suspension for non‑payment of levy or charge 92 Automatic cancellation for bankruptcy Subdivision D—Common rules for conditions, suspension and cancellation 93 Procedure for taking action etc. 94 ESOS agency may remove condition of registration or suspension of registration 95 Effect of suspension Division 2—Immigration Minister's suspension certificate 97 Immigration Minister may give a registered provider a suspension certificate 98 Procedure for issuing certificate 99 Content of certificate 100 Duration of certificate 101 Effect of certificate: offence 102 Further certificates 103 Updating the Register Division 3—Offences 107 Failing to identify registered provider in written material 108 Providing false or misleading information 109 Access to electronic notification system Part 7—Monitoring, investigation and enforcement Division 1—Guide to this Part 111A Guide to this Part Division 1B—Compliance audits 112A Compliance audits Division 2—Notices requiring information and documents Subdivision A—Production notices 113 ESOS agency for a registered provider may give a production notice 113A TPS Director may give a production notice 114 Contents of the production notice 115 Serving production notices Subdivision B—Attendance notices 116 Attendance notices 117 Contents of the attendance notice Subdivision C—Common rules for production and attendance notices 118 Scales of expenses 120 Offence: failing to comply with a notice 121 Offence: giving false or misleading information 122 Offence: giving false or misleading document to authorised officer 122A Offence: giving false or misleading document to TPS officer 123 Information and documents that incriminate a person 124 Copies of documents 125 Retaining of documents by authorised officer etc. 125A Retaining of documents by TPS officer 126 Owner of document must be given copy 127 Returning of documents 128 Authorised officer etc. may apply to retain document for a further period 128A TPS officer may apply to retain document for a further period 129 Magistrate or ART member may order retention for further period Division 3—Monitoring 130 Monitoring powers Division 4—Investigation 131 Investigation powers Division 5—Infringement notices 132 Infringement notices Division 6—Enforceable undertakings 133 Enforceable undertakings Part 7A—Review of decisions Division 1—Introduction 169AA Guide to this Part Division 2—Review of decisions 169AB Reviewable decisions 169AC Notice of decision 169AD Application for internal review of reviewable decisions made by delegates 169AE Internal review of reviewable decisions 169AF Internal review decision must be made within 90 days 169AG Review by the Administrative Review Tribunal Part 8—Miscellaneous 169A Guide to this Part 170A Publishing results of enforcement and monitoring 170B Annual report 170C Minister may give directions to the ESOS agency 170 Delegation 171A Subdelegation by TEQSA or National VET Regulator 171 Reinstatement fee 172 Late payment penalty 173 Debts due to the Commonwealth 174 Amounts payable by unincorporated bodies 175 Giving information to relevant bodies etc. 176A Review of operation of tuition protection 176B ELICOS Standards 176C Foundation Program Standards 176D Refund of charge in special circumstances 177 Regulations Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history An Act to regulate education services for overseas students, and for related purposes Part 1—Introduction Division 1—Preliminary 1 Short title This Act may be cited as the Education Services for Overseas Students Act 2000. 2 Commencement (1) This section and section 1 commence on the day on which this Act receives the Royal Assent. (2) The remaining provisions of this Act commence on a day or days to be fixed by Proclamation. (3) However, if a provision of this Act does not commence under subsection (2) within the period of 6 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period. 3 Crown to be bound (1) This Act binds the Crown in each of its capacities. (2) However, nothing in this Act makes the Crown in any capacity liable to be prosecuted for an offence. 4 Criminal Code applies The Criminal Code applies to all offences against this Act. 4A Objects The principal objects of this Act are: (a) to provide tuition assurance, and refunds, for overseas students for courses for which they have paid; and (b) to protect and enhance Australia's reputation for quality education and training services; and (c) to complement Australia's migration laws by ensuring providers collect and report information relevant to the administration of the law relating to student visas. 4B Extension of this Act to Norfolk Island, Christmas Island and Cocos (Keeling) Islands (1) Subject to subsection (2), this Act applies in relation to Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands as if: (a) a reference in a provision of this Act to a State included a reference to Norfolk Island, the Territory of Christmas Island or the Territory of Cocos (Keeling) Islands; and (b) a reference in a provision of this Act to the designated State authority included a reference to the Territories Minister. (2) Paragraph (1)(a) does not apply in relation to the following provisions: (a) the definitions of designated State authority and State in section 5; (b) paragraph 6D(1)(a); (c) paragraph 31(a); (f) paragraph 127(3)(b); (g) paragraph 152(3)(b); (h) paragraph 175(1)(e). (3) The Territories Minister may, by signed writing, delegate all or any of his or her functions or powers as a designated State authority under this Act to: (a) an APS employee who is an SES employee or acting SES employee; or (b) an officer or employee of a State. 5 Definitions In this Act, unless the contrary intention appears: accepted student of a registered provider means a student (whether within or outside Australia): (a) who is accepted for enrolment, or enrolled, in a course provided by the provider; and (b) who is, or will be, required to hold a student visa to undertake or continue the course. affected provider for a reviewable decision has the meaning given by section 169AB. agent of a provider means a person (whether within or outside Australia) who represents or acts on behalf of the provider, or purports to do so, in dealing with overseas students or intending overseas students. 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. applicable number of days has the meaning given by subsection 19(1A). approved school provider means a school provider approved (however described) by a designated State authority to provide courses to: (a) if the school provider is located in Tasmania or the Australian Capital Territory—students for that State or Territory; or (b) otherwise—overseas students for the State (other than Tasmania or the Australian Capital Territory). ART member means a member of the Administrative Review Tribunal. associate of a person has the meaning given by section 6. attendance notice means a notice given under section 116. Australian Qualifications Framework has the same meaning as in the Higher Education Support Act 2003. authorised officer of the ESOS agency for a registered provider has the meaning given by section 6A. Board means the TPS Advisory Board established by section 55A. Board member means a member of the Board appointed under section 55D, including the Chair and the Deputy Chair. call: a call is made on the OSTF in the circumstances set out in section 50A. compliance audit has the meaning given by section 112A. condition, in relation to a provider's registration, means a condition imposed on the registration under section 10B or subsection 83(3). course has the meaning given by section 5AA. CRICOS annual registration charge means CRICOS annual registration charge imposed by the Education Services for Overseas Students (Registration Charges) Act 1997. 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. 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. designated State authority for a provider or registered provider to the extent the provider is an approved school provider means the person responsible under the law of a State for approving (however described) school providers to provide courses to: (a) if the school provider is located in Tasmania or the Australian Capital Territory—students for that State or Territory; or (b) otherwise—overseas students for the State (other than Tasmania or the Australian Capital Territory). document includes a copy of a document. DSA assessment certificate has the meaning given by subsection 6B(1). DSA recommendation certificate has the meaning given by subsection 6B(2). ELICOS means English Language Intensive Course for Overseas Students. ELICOS Standards has the meaning given by section 176B. ESOS agency for a provider or registered provider has the meaning given by section 6C. exempt provider has the meaning given by section 6D. Foundation Program Standards has the meaning given by section 176C. high managerial agent of a provider means an employee, agent or officer of the provider with duties of such responsibility that his or her conduct may fairly be assumed to represent the provider in relation to the business of providing courses. Immigration Minister means any of the Ministers who administer the Migration Act 1958 from time to time. Immigration Minister's suspension certificate means a certificate given under Division 2 of Part 6. Immigration Secretary means the Secretary of the Department administered by the Immigration Minister. intending overseas student means a person (whether within or outside Australia) who intends to become, or who has taken any steps towards becoming, an overseas student. internal reviewer means: (a) the ESOS agency for an affected provider; or (b) a delegate referred to in paragraph 169AE(1)(b). late payment penalty means the penalty imposed by section 172. meets the registration requirements has the meaning giving by section 11. monitoring purpose means a purpose of determining: (a) whether a registered provider is complying, or has complied, with: (i) this Act; or (ii) the national code; or (iii) if the ELICOS Standards or Foundation Program Standards apply in relation to the provider—those Standards; or (b) whether, because of financial difficulty or any other reason, the provider might not be able to: (i) provide courses to its accepted students; or (ii) refund amounts to its accepted students under Division 2 of Part 5. national code means the National Code of Practice for Providers of Education and Training to Overseas Students in force under Part 4. National VET Regulator has the same meaning as in the National Vocational Education and Training Regulator Act 2011. non‑referring State has the same meaning as in the NVETR Act. NVETR Act means the National Vocational Education and Training Regulator Act 2011. NVR registered training organisation has the same meaning as in the NVETR Act. old ESOS Act means the Education Services for Overseas Students (Registration of Providers and Financial Regulation) Act 1991. OSTF: see Overseas Students Tuition Fund. overseas student means a person (whether within or outside Australia) who holds a student visa, but does not include students of a kind prescribed in the regulations. Overseas Students Tuition Fund means the Overseas Students Tuition Fund established under section 52A. premises means: (a) an area of land or any other place, whether or not it is enclosed or built on; or (b) a building or other structure; or (c) a vehicle or vessel; and includes a part of any such premises. principal executive officer of a provider that is not an individual means the person who has executive responsibility for the operation of the provider. production notice means a notice given under section 113 or 113A. provide a course includes participate in providing the course. provider has the meaning given by section 6E. provider obligation period, in relation to a default, has the meaning given by section 46D, 47D or 47E (as the case requires). Register means the Register kept under section 14A. 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). registered higher education provider has the same meaning as in the TEQSA Act. registered provider for a course for a location means a provider that is registered to provide the course at the location. registered training organisation has the same meaning as in the NVETR Act. registered VET provider means: (a) an NVR registered training organisation; or (b) a registered training organisation (other than an NVR registered training organisation) that provides, or seeks to provide, courses to overseas students at locations in a non‑referring State. Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014. reinstatement fee means the fee referred to in section 171. related person of a provider or registered provider has the meaning given by subsection 7A(3). relevant individual of a registered provider means: (a) an officer or employee of the provider; or (b) a consultant to the provider; or (c) if the provider is a partnership—a partner in the partnership; or (d) if the provider is a sole trader—the provider; or (e) an officer or employee of an administrator, liquidator or restructuring practitioner (within the meaning of the Corporations Act 2001) of the provider or a former registered provider. resident means: (a) in the case of a company, a company incorporated in Australia that carries on business in Australia and that has its central management and control in Australia; or (b) in the case of an unincorporated body, a body that carries on business in Australia and that has its central management and control in Australia. reviewable decision has the meaning given by section 169AB. school provider means a person or entity that provides courses of education at a level that, under section 15 of the Australian Education Act 2013, constitutes primary education, or secondary education, for the provider. schools initial registration charge means schools initial registration charge imposed by the Education Services for Overseas Students (Registration Charges) Act 1997. schools renewal registration charge means schools renewal registration charge imposed by the Education Services for Overseas Students (Registration Charges) Act 1997. Secretary means the Secretary of the Department. State includes the Australian Capital Territory and the Northern Territory. student visa has the meaning given by the regulations. TEQSA (short for Tertiary Education Quality and Standards Agency) means the body established by section 132 of the TEQSA Act. TEQSA Act means the Tertiary Education Quality and Standards Agency Act 2011. Territories Minister means the Minister responsible for administering the Christmas Island Act 1958. this Act includes the regulations. TPS levy means the TPS levy imposed under the Education Services for Overseas Students (TPS Levies) Act 2012. TPS officer means: (a) an APS employee in the Department who assists the TPS Director in the performance of the TPS Director's functions; or (b) a consultant engaged by the TPS Director under section 54L. tuition fees has the meaning given by section 7. 5AA Definition of course (1) A course is a course of education or training that satisfies one or more of the following: (a) the course leads to a qualification recognised in the Australian Qualifications Framework; (b) the course is a course of education at a level that, under section 15 of the Australian Education Act 2013, constitutes primary education or secondary education; (c) the course is a Foundation Program; (d) the course is an ELICOS; (e) the course is offered by a registered higher education provider; (f) the course is a VET course within the meaning of the National Vocational Education and Training Regulator Act 2011. (2) The Minister may, by legislative instrument, determine that a course of education or training is a course. Note: For specification by class, see subsection 13(3) of the Legislation Act 2003. (3) The Minister may, by legislative instrument, determine that a course of education or training is not a course. Note: For specification by class, see subsection 13(3) of the Legislation Act 2003. 5A When registered higher education providers are taken to have the principal purpose of providing education For the purposes of paragraphs 11(d) and 83(1C)(a), a registered 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. 6 Meaning of associate (1) In this Act: associate of a person means: (a) the spouse or de facto partner of the person; or (b) a child of the person, or of the person's spouse or de facto partner; or (c) a parent of the person, or of the person's spouse or de facto partner; or (d) a sibling of the person; or (e) if the person is a company: (i) an officer of the company; or (ii) an officer of a company that is related to the first‑mentioned company; or (iii) a person who holds a substantial ownership interest in the company; or (f) if the person is an association or a co‑operative—the principal executive officer or a member of the body (however described) that governs, manages, or conducts the affairs of the association or co‑operative; or (g) if the person is a body corporate established for a public purpose by or under an Australian law and another body is responsible for the management or the conduct of the affairs of the body corporate—the principal executive officer or a member of that other body; or (h) if the person is any other kind of body corporate established for a public purpose by or under an Australian law—the principal executive officer or a member of the body corporate; or (i) if the person is a partnership: (i) the principal executive officer or an individual, or a body corporate, that is a member of the partnership; or (ii) an individual who is an officer of a company, or a member of any other body corporate, that is a member of the partnership. Related companies (2) For the purposes of subsection (1), the question of whether companies are related to each other is to be determined in the same manner as the question of whether bodies corporate (within the meaning of the Corporations Act 2001) are related to each other is determined under section 50 of the Corporations Act 2001. Substantial ownership interest (3) For the purposes of subsection (1), a person holds a substantial ownership interest in a company if the total of all amounts paid on the shares in the company in which the person holds interests equals or exceeds 15% of the total of all amounts paid on all shares in the company. Interests in shares (4) For the purposes of subsection (3): (a) a person holds an interest in a share if the person has any legal or equitable interest in the share; and (b) without limiting the generality of paragraph (a), a person holds an interest in a share if the person, although not the registered holder of the share, is entitled to exercise, or control the exercise of, a right attached to the share, otherwise than because the person has been appointed as a proxy or representative to vote at a meeting of members of a company or of a class of its members. Mutual associates (5) If, under this section, one person is an associate of a second person, then the second person is an associate of the first person. Chains of associates (6) If, under this section: (a) one person is an associate of a second person (including because of a previous application of this subsection); and (b) the second person is an associate of a third person; then the first person is an associate of the third person. Other definitions (7) In this section: child: without limiting who is a child of a person for the purposes of this section, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975. de facto partner of a person has the meaning given by the Acts Interpretation Act 1901. parent: without limiting who is a parent of a person for the purposes of this section, someone is the parent of a person if the person is his or her child because of the definition of child in this section. person includes a provider. Certain family relationships (8) For the purposes of paragraph (d) of the definition of associate in subsection (1), if one person is the child of another person because of the definition of child in this section, relationships traced to or through the person are to be determined on the basis that the person is the child of the other person. 6A Meaning of authorised officer (1) The following table sets out who is an authorised officer of the ESOS agency for a registered provider: Authorised officer Item If the ESOS agency for a registered provider is: a person is an authorised officer of the agency if: 1 TEQSA the person is: (a) a Commissioner (within the meaning of the TEQSA Act); or (b) the Chief Executive Officer of TEQSA; or (c) an authorised officer (within the meaning of that Act) 2 the National VET Regulator the person is: (a) the National VET Regulator; or (b) an authorised officer (within the meaning of the NVETR Act) 3 the Secretary the person is appointed under subsection (2) 4 an entity that is not covered by another item of this table the person is appointed under subsection (3) (2) If the ESOS agency for a registered provider is the Secretary, the agency may, in writing, appoint a person as an authorised officer of the agency if: (a) the person is an APS employee in the Department; and (b) the person holds or performs the duties of an APS 5 position or higher, or an equivalent position; and (c) the agency is satisfied that the person has suitable qualifications and experience. (3) If the ESOS agency for a registered provider is an entity that is covered by item 4 of the table in subsection (1), the agency may, in writing, appoint a person as an authorised officer of the agency if: (a) the person is an employee or constituent member of the agency; and (b) the agency is satisfied that the person has suitable qualifications and experience. 6B Meaning of DSA assessment certificate and DSA recommendation certificate DSA assessment certificate (1) A DSA assessment certificate is a certificate given by the designated State authority for an approved school provider that: (a) states that the authority is satisfied that the provider is complying, or will comply, with: (i) this Act; and (ii) the national code; and (iii) if the ELICOS Standards or Foundation Program Standards apply in relation to the provider—those Standards; and (b) if the provider is not an exempt provider—states that the authority is satisfied that the provider is fit and proper to be registered; and (c) states that the authority is satisfied that the provider has the principal purpose of providing education; and (d) states that the authority has no reason to believe that: (i) the provider does not have the clearly demonstrated capacity to provide education of a satisfactory standard; or (ii) the provider has not been providing, or will not provide, education of a satisfactory standard; and (e) recommends the conditions (if any) that should be imposed on the provider's registration; and (f) recommends a period not longer than 7 years for which the provider should be registered; and (g) sets out any other matters prescribed by the regulations. Note: The designated State authority must have regard to the matters in subsection 7A(2) in deciding whether it is satisfied that the provider is fit and proper to be registered. DSA recommendation certificate (2) A DSA recommendation certificate is a certificate given by the designated State authority for an approved school provider that: (a) recommends that the ESOS agency for the provider should add one or more courses at one or more locations to the provider's registration; and (b) recommends the conditions (if any) that should be imposed on the provider's registration; and (c) sets out any other matters prescribed by the regulations. Form of certificates (3) A DSA assessment certificate or DSA recommendation certificate must be in the form approved, in writing, by the ESOS agency for the approved school provider to which the certificate relates. 6C Meaning of ESOS agency (1) Subject to subsections (3) and (4), the following table sets out the ESOS agency for a provider or registered provider: ESOS agency Item To the extent that a provider or registered provider is: the ESOS agency for the provider or registered provider is: 1 a registered higher education provider TEQSA 2 a registered VET provider the National VET Regulator 3 an approved school provider the Secretary 4 a person or entity that provides an ELICOS or a Foundation Program the entity determined under subsection (2) 5 a provider or registered provider that is not covered by another item of this table the entity determined under subsection (2) (2) The Minister may, by legislative instrument, determine that an entity is the ESOS agency for a provider or registered provider covered by item 4 or 5 of the table in subsection (1). (3) If a provider or registered provider is covered by more than one item of the table in subsection (1), the Minister may, by legislative instrument: (a) determine that one or more entities are the ESOS agencies for the provider; and (b) specify the circumstances in which each of those entities is the ESOS agency for the provider. (4) If subparagraph 83(2A)(d)(i) or (2B)(d)(i) or paragraph 83(2C)(c) applies in relation to a registered provider, disregard that subparagraph or paragraph in determining the ESOS agency for the provider for the purposes of subsection 83(2A), (2B) or (2C). 6D Meaning of exempt provider (1) A provider or registered provider is an exempt provider if: (a) the provider is administered by a State education authority; or (b) the provider: (i) is entitled to receive funds under a law of the Commonwealth for recurrent expenditure for the provision of education or training; and (ii) is not a provider prescribed by the regulations for the purposes of this subparagraph; or (c) the provider is specified in the regulations. (2) To avoid doubt, a private corporate body established in connection with a provider covered by paragraph (1)(a) or (b) is not itself, by virtue of that connection alone, a provider covered by that paragraph. 6E Meaning of provider (1) A provider is: (a) a registered higher education provider; or (b) a registered VET provider; or (c) an approved school provider; or (d) a person or entity that provides an ELICOS or a Foundation Program; or (e) another person or entity (other than a person or entity specified under subsection (2)); that provides, or seeks to provide, courses to overseas students. (2) The Minister may, by legislative instrument, specify a person or entity for the purposes of paragraph (1)(e). 7 Meaning of tuition fees In this Act: tuition fees: (a) means fees a provider receives, directly or indirectly, from: (i) an overseas student or intending overseas student; or (ii) another person who pays the fees on behalf of an overseas student or intending overseas student; that are directly related to the provision of a course that the provider is providing, or offering to provide, to the student; and (b) without limiting paragraph (a), includes any classes of fees prescribed by the regulations for the purposes of this paragraph; and (c) without limiting paragraph (a), excludes any classes of fees prescribed by the regulations for the purposes of this paragraph. 7A Deciding whether a provider or registered provider is fit and proper to be registered etc. (1) This section applies if it is necessary for the purposes of a provision of this Act for: (a) the ESOS agency for a provider or registered provider to decide whether: (i) the agency is satisfied, or no longer satisfied, that the provider is fit and proper to be registered; or (ii) the agency believes on reasonable grounds that the provider is not fit and proper to be registered; or (b) the designated State authority for a provider or registered provider that is an approved school provider to decide whether the authority is satisfied that the provider is fit and proper to be registered. (2) In deciding the matter, the ESOS agency or designated State authority must have regard to: (a) whether the provider or a related person of the provider has ever been convicted of an offence; and (b) whether the registration of the provider or a related person of the provider has ever been cancelled or suspended under this Act or the old ESOS Act; and (c) whether the provider or a related person of the provider has ever been issued with an Immigration Minister's suspension certificate; and (d) whether a condition has ever been imposed under this Act on the registration of the provider or a related person of the provider; and (e) whether the provider or a related person of the provider has ever: (i) become bankrupt; or (ii) taken steps to take the benefit of any law for the relief of bankrupt or insolvent debtors; or (iii) compounded with one or more creditors of the provider or person; or (iv) made an assignment of the remuneration of the provider or person for the benefit of one or more creditors of the provider or person; and (f) whether the provider or a related person of the provider has ever been disqualified from managing corporations under Part 2D.6 of the Corporations Act 2001; and (g) whether the provider or a related person of the provider was involved in the business of the provision of courses by another provider who is covered by any of the above paragraphs at the time of any of the events that gave rise to the relevant conviction or other action; and (ga) the matters (if any) specified by the Minister in an instrument under subsection (2A); and (h) any other relevant matter. (2A) The Minister may, by legislative instrument, make a determination specifying matters for the purposes of paragraph (2)(ga). (3) A related person of a provider or registered provider is: (a) an associate of the provider who has been, is or will be, involved in the business of the provision of courses by the provider; or (b) a high managerial agent of the provider. (4) Nothing in subsection (2) affects the operation of Part VIIC of the Crimes Act 1914 (which deals with spent convictions). (5) If: (a) the Minister determines that an entity is an ESOS agency for a provider or a registered provider under subsection 6C(2) or (3); and (b) the entity is not a Commonwealth authority (within the meaning of section 85ZL of the Crimes Act 1914); the entity is taken to be a Commonwealth authority for the purposes of Part VIIC of the Crimes Act 1914. 7AA No duty imposed on designated State authorities Nothing in this Act imposes a duty on a designated State authority. 7AB Application to former registered providers (1) This Act continues to apply in relation to a person or entity that was a registered provider as if the person or entity were still a registered provider. (2) Subsection (1) applies: (a) for the purposes of dealing with or resolving any matter that arose during, or that relates to, the period when the person or entity was a registered provider; and (b) without limiting paragraph (a)—for the purposes of dealing with or resolving any matter that relates to: (i) tuition fees or other money received by the person or entity, or money owed by the person or entity, in accordance with this Act (whether or not the money is received, or the debt arises, while the person or entity is a registered provider); or (ii) a default (whether or not the default occurs while the person or entity is a registered provider). 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, the national code, the ELICOS Standards and the Foundation Program Standards impose obligations on registered providers, including obligations relating to 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. Part 2—Registration of providers 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). • Division 3 provides for the registration of providers by the ESOS agency for a provider. A provider may be registered (for a period of up to 7 years) to provide one or more courses at one or more locations to overseas students if the provider meets the registration requirements. Conditions may be imposed on the registration of a provider and those conditions may be varied or revoked. • Division 3 also provides for the renewal of registrations, the addition of one or more courses at one or more locations to a registered provider's registration and the extension or continuation of registration periods in certain circumstances. • Division 4 requires the Secretary to cause a Register to be kept that contains specified information about the registration of all registered providers. The Secretary is also required to ensure that the Register is kept up‑to‑date. Division 2—Offence for providing or promoting a course without a registered provider 8 Offence: providing or promoting a course without a registered provider (1) A person commits an offence if: (a) the person: (i) provides a course at a location to an overseas student; or (ii) makes an offer to an overseas student or an intending overseas student to provide a course at a location to that student; or (iii) invites an overseas student or intending overseas student to undertake, or to apply to undertake, a course at a location; or (iv) holds himself, herself or itself out as able or willing to provide a course at a location to overseas students; and (b) the person is not registered to provide that particular course at that particular location. Penalty: Imprisonment for 2 years. (2) Subsection (1) does not apply if the provision, offer, inviting or holding out is in accordance with an arrangement that the person has with a registered provider for that particular course for that particular location. Note 1: This means that, if 2 or more providers jointly provide a course, then only one of the providers needs to be registered. Note 2: However, a provider of a course who is not registered must identify the registered provider in any written material promoting the course (see section 107) and must not engage in misleading or deceptive conduct in relation to the course (see subsection 83(2)). Note 3: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code). Defence: surveys etc. to assess demand for a course (3) Subsection (1) does not apply as a result of subparagraph (1)(a)(iv) if: (a) the relevant conduct was only for either or both of the following purposes: (i) carrying out surveys or other investigations to assess the demand for the course; or (ii) negotiating with another institution or other body or person in connection with designing or developing the course; and (b) the person took reasonable steps to ensure that: (i) overseas students and intending overseas students who were, or might become, interested in undertaking the course; and (ii) any institution or other body or person who might also provide the course; were aware that: (iii) the person was not a registered provider for the course for the location; and (iv) the relevant conduct was not carried out in accordance with an arrangement that the person had with a registered provider for the course for the location; and (c) the person neither invited nor accepted any amount for the course from overseas students or intending overseas students, or from the students' agents. Note: A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code. Division 3—Registration of providers Subdivision A—Application for registration 9 Provider may apply to be registered (1) A provider may apply to be registered to provide a course or courses at a location or locations to overseas students. (2) The application must be made to the ESOS agency for the provider. Note: See section 11A for further rules about applications. 10 ESOS agency for provider may register provider (1) If a provider makes an application under section 9, the ESOS agency for the provider may register the provider to provide a course or courses at a location or locations if the provider meets the registration requirements. (2) The ESOS agency for the provider must use a risk management approach when considering whether to register the provider. 10A Notice of registration (1) If: (a) a provider makes an application under section 9; and (b) the ESOS agency for the provider decides to register the provider; the agency must, as soon as practicable after making the decision, give the provider written notice of the registration. (2) The notice must set out: (a) the name of the provider; and (b) if the provider is not an individual—the name of the principal executive officer of the provider; and (c) the name of the course or courses that the provider is registered to provide; and (d) the location or locations at which the provider is registered to provide that course or those courses; and (e) the period of registration (which must not be longer than 7 years); and (f) any conditions imposed on the provider's registration under section 10B at the time of registration and when any such conditions take effect; and (g) any other matters relating to the registration that the ESOS agency for the provider considers appropriate. (3) If the provider is an approved school provider, the ESOS agency for the provider must, in determining the provider's period of registration, have regard to the period of registration recommended in the DSA assessment certificate given to the agency by the designated State authority for the provider. Subdivision B—Conditions of registration 10B Conditions of registration (1) The ESOS agency for a provider or registered provider may at any time: (a) impose a condition on the provider's registration; or (b) vary or remove a condition of the provider's registration. (2) The ESOS agency for the provider or registered provider must use a risk management approach in deciding whether to impose, vary or remove a condition. (3) A condition may be: (a) imposed generally on a provider's registration; or (b) imposed in respect of either or both of the following: (i) one or more of the courses that a provider is registered to provide; (ii) one or more of the locations at which a provider is registered to provide a course. (4) If the ESOS agency for a registered provider does either of the following after the commencement of the provider's registration: (a) imposes a condition on the provider's registration; (b) varies or removes a condition of the provider's registration; the agency must include in the notice of the decision given to the provider under section 169AC a statement about when the imposition, variation or removal takes effect. Note: Section 169AC requires the ESOS agency to give notice of certain decisions. 10C Conditions imposed by designated State authorities on the approval of school providers after registration (1) If: (a) a registered provider for a course for a location is an approved school provider; and (b) at any time while the provider is registered, the designated State authority for the provider imposes a condition on the authority's approval of the provider that relates to the provision of the course; the ESOS agency for the provider may impose that condition on the provider's registration under section 10B. (2) In deciding whether to impose the condition under section 10B, the ESOS agency for the registered provider must have regard to any advice of the designated State authority for the provider. (3) This section does not limit section 10B. Subdivision C—Renewal of registration 10D Registered provider may apply to renew registration (1) A registered provider may apply to renew the provider's registration to provide a course or courses at a location or locations to overseas students. (2) The application must be: (a) made to the ESOS agency for the register provider; and (b) made within the period determined under subsection (3). Note: See section 11A for further rules about applications. (3) The ESOS agency for a registered provider may, by legislative instrument, determine the period within which applications under this section must be made. 10E ESOS agency for registered provider may renew registration (1) If a registered provider makes an application under section 10D, the ESOS agency for the provider may renew the provider's registration to provide a course or courses at a location or locations if the provider meets the registration requirements. (2) The ESOS agency for the registered provider must use a risk management approach when considering whether to renew the registration of the provider. 10F Registration continues until decision on renewal takes effect If: (a) a registered provider makes an application under section 10D; and (b) the ESOS agency for the provider has not made a decision on the application before the end of the day on which the provider's registration is due to expire; the provider's registration continues until the agency's decision on the application is stated to take effect. 10G Notice of renewal of registration (1) If: (a) a registered provider makes an application under section 10D; and (b) the ESOS agency for the provider decides to renew the provider's registration; the agency must, as soon as practicable after making the decision, give the provider written notice of the renewal. (2) The notice must set out: (a) the name of the registered provider; and (b) if the provider is not an individual—the name of the principal executive officer of the provider; and (c) the name of the course or courses that the provider is registered to provide; and (d) the location or locations at which the provider is registered to provide that course or those courses; and (e) the period of registration (which must not be longer than 7 years); and (f) any conditions imposed on the provider's registration under section 10B at the time of the renewal of the registration and when any such conditions take effect; and (g) any other matters relating to the renewal of the registration that the ESOS agency for the provider considers appropriate. (3) If the registered provider is an approved school provider, the ESOS agency for the provider must, in determining the provider's period of registration, have regard to the period of registration recommended in the DSA assessment certificate given to the agency by the designated State authority for the provider. Subdivision D—Changes to registration etc. 10H Registered provider may apply to add one or more courses at one or more locations to registration (1) A registered provider may apply to add one or more courses at one or more locations to the provider's registration. (2) The application: (a) must be made to the ESOS agency for the registered provider; and (b) if the provider is an approved school provider—must be accompanied by a DSA recommendation certificate given by the designated State authority for the provider. Note: See section 11A for further rules about applications. 10J ESOS agency for registered provider may add one or more courses at one or more locations to registration (1) If a registered provider makes an application under section 10H to add one or more courses at one or more locations to the provider's registration, the ESOS agency for the provider may add those courses at those locations to the provider's registration if the provider meets the registration requirements. (2) The ESOS agency for the registered provider must use a risk management approach when considering whether to add one or more courses at one or more locations to the provider's registration. (3) If the ESOS agency for the registered provider decides to add one or more courses at one or more locations to the provider's registration, the addition does not affect the provider's period of registration. 10K Notice of addition of one or more courses at one or more locations to registration (1) If: (a) a registered provider makes an application under section 10H; and (b) the ESOS agency for the provider decides to add one or more courses at one or more locations to the provider's registration; the agency must, as soon as practicable after making the decision, give the provider written notice of the decision. (2) The notice must set out: (a) the name of the additional course or courses that the provider is registered to provide; and (b) the additional location or locations at which the provider is registered to provide that course or those courses; and (c) any conditions imposed on the provider's registration under section 10B at the time of the decision and when any such conditions take effect; and (d) any other matters relating to the decision that the ESOS agency for the provider considers appropriate. 10L Extension of a registered provider's period of registration (1) The ESOS agency for a registered provider that is a registered higher education provider may extend the provider's period of registration for the purpose of aligning the period with the provider's period of registration under the TEQSA Act. (2) The ESOS agency for a registered provider that is a registered VET provider may extend the provider's period of registration for the purpose of aligning the period with the provider's period of registration under the NVETR Act. (3) The ESOS agency for a registered provider that is an approved school provider may extend the provider's period of registration for the purpose of aligning the period with the provider's period of approval as an approved school provider. (4) The ESOS agency for a registered provider must not extend a particular period of registration under subsection (1), (2) or (3) more than once. (5) The ESOS agency for a registered provider must use a risk management approach when considering whether to extend the provider's period of registration. 10M Continuation of registration if provider has not finished providing course before expiry of registration (1) This section applies if: (a) a registered provider is registered to provide a course at a location; and (b) the provider's registration for the course at the location is due to expire before the provider has finished providing the course at the location; and (c) the provider has not applied under section 10D to renew that registration. (2) The registered provider's registration for the course at the location continues until: (a) if the provider is an approved school provider—the end of the year in which the provider's registration would have expired but for this section; or (b) otherwise—the provider has finished providing the course at the location to the students who were enrolled in, and had commenced, the course before the day on which the provider's registration would have expired but for this section. (3) Despite subsection (2), the registered provider must not do anything for the purpose of recruiting or enrolling overseas students, or intending overseas students, for the course at the location after the day on which the provider's registration would have expired but for this section. Subdivision E—Other registration provisions 11 When a provider or registered provider meets the registration requirements A provider or registered provider meets the registration requirements if: (a) the provider is: (i) a resident; or (ii) a Table C provider (within the meaning of the Higher Education Support Act 2003); and (b) the ESOS agency for the provider is satisfied that the provider is complying, or will comply, with: (i) this Act; and (ii) the national code; and (iii) if the ELICOS Standards or Foundation Program Standards apply in relation to the provider—those Standards; and (c) if the provider is not an exempt provider—the ESOS agency for the provider is satisfied that the provider is fit and proper to be registered; and (d) the ESOS agency for the provider is satisfied that the provider has the principal purpose of providing education; and (e) the ESOS agency for the provider has no reason to believe that: (i) the provider does not have the clearly demonstrated capacity to provide education of a satisfactory standard; or (ii) the provider has not been providing, or will not provide, education of a satisfactory standard; and (f) if the provider is an approved school provider—the designated State authority for the provider has given the ESOS agency for the provider a DSA assessment certificate; and (g) if the provider is not a registered provider—the provider has paid: (i) schools initial registration charge (if the provider is liable to pay that charge); and (ia) National VET Regulator annual registration charge imposed by section 6A of the National Vocational Education and Training Regulator (Charges) Act 2012 (if the provider is liable to pay that charge); and (ib) a fee determined under section 232 of the National Vocational Education and Training Regulator Act 2011 (if the provider is liable to pay that fee); and (ic) a fee determined under section 158 of the Tertiary Education Quality and Standards Agency Act 2011 (if the provider is liable to pay that fee); and (ii) its first TPS levy; and (h) if the provider is a registered provider or has previously been registered—the provider is not liable to pay an amount of: (i) CRICOS annual registration charge; or (ii) schools renewal registration charge; or (iii) National VET Regulator annual registration charge imposed by section 6A of the National Vocational Education and Training Regulator (Charges) Act 2012; or (iiia) charge payable under section 7 of the National Vocational Education and Training Regulator (Charges) Act 2012; or (iiib) charge payable under section 10 of the National Vocational Education and Training Regulator (Charges) Act 2012; or (iiic) a fee determined under section 232 of the National Vocational Education and Training Regulator Act 2011; or (iiid) a fee determined under section 158 of the Tertiary Education Quality and Standards Agency Act 2011; or (iiie) charge imposed by the Tertiary Education Quality and Standards Agency (Charges) Act 2021; or (iv) TPS levy; or (v) late payment penalty for any such charge or levy; and (i) any other requirements prescribed by the regulations are satisfied. Note: For when a registered higher education provider has the principal purpose of providing education, see section 5A. 11A Rules relating to applications for registration etc. (1) This section applies in relation to: (a) an application made to the ESOS agency for a provider under section 9; and (b) an application made to the ESOS agency for a registered provider under section 10D or 10H. Form of application etc. (2) The application must be: (a) made in the form approved, in writing, by the ESOS agency for the provider or registered provider; and (b) accompanied by any information and documents required by the agency. Withdrawal of application (3) The provider or registered provider may withdraw the application at any time before a decision is made on the application by giving written notice to the ESOS agency for the provider. Consideration of application (4) When considering the application, the ESOS agency for the provider or registered provider may: (a) consider any information in the possession of the agency that is relevant to the application; and (b) conduct an audit of any matter relating to the application. (5) Subsection (4) does not limit the things that the ESOS ag