Education Services for Overseas Students (Registration of Providers and Financial Regulation) Regulations (Amendment) (Cth)
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I, THE
GOVERNOR-GENERAL of the Commonwealth of Australia, acting with the advice of
the Federal Executive Council and under section 4 of the
Dated 1 June 1994.
BILL HAYDEN
Governor-General
By His Excellency’s Command,
SIMON CREAN
Minister for Employment, Education and Training
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1.1 These Regulations commence on 24 June 1994.
2.1 The Education Services for Overseas Students (Registration of Providers and Financial Regulation) Regulations are amended as set out in these Regulations.
3.1 Before regulation 1 insert:
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4.1 Insert the following definitions:
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5.1 Omit “sections 6A, 7 and 8”, substitute “sections 6A, 7, 7A and 8”.
6.1 After regulation 8 insert:
(1) A provider who is not exempt from the requirements of section 7A of the Act under regulation 8 is exempt from those requirements in relation to a course if:
(a) no student has paid, either directly or indirectly, for the course; or
(b) the provider has a written agreement with a student under which the student is required to pay course money after the course has been provided; or
(c) the course is provided in a State in which section 7A of the Act is suspended.
If a provider who is not exempt from the requirements of section 7A of the Act under regulation 8 or subregulation (1):
(a) is unable to become a member of a TAS because of the special nature of the course offered by the provider, or it is unreasonable in the circumstances to expect the provider to become a member of a TAS; and
(b) for each student who has paid course money in advance for the course, takes out an insurance policy that complies with regulation 15, or obtains a guarantee from a bank within the meaning of the
Banking Act 1959 that offers each student indemnity equivalent to that provided by such an insurance policy; and(c) notifies the Minister in writing why the provider is unable to become a member of a TAS, or why it is unreasonable in the circumstances to expect the provider to become a member of a TAS; and
(d) gives the Minister a copy of the insurance policy or the instrument of guarantee and a written list of the names of each student indemnified by the policy or the guarantee;
the provider is exempt from the requirements of section 7A of the Act.
A notice under paragraph (2) (c) and the copy of the insurance policy or the instrument of guarantee must be given to the Minister:
(a) if the provider has not applied for registration under section 5 of the Act in respect of the course before this regulation commences—when the provider applies for registration in respect of the course; or
(b) if, before this regulation commences, the provider is registered in respect of the course, or has applied for registration in respect of the course and the application has not been refused—before 25 August 1994.
(1) If a provider:
(a) is not exempt from the requirements of section 7A of the Act under regulation 8 or 9; and
(b) has taken substantial steps towards becoming a member of a TAS but is unable to become a member before 25 August 1994; and
(c) notifies the Minister in writing before that date of the steps that the provider has taken;
the provider is exempt from the requirements of section 7A of the Act:
(d) until the provider becomes a member of a TAS; or
(e) until the end of November 1994;
whichever is earlier.
If a provider:
(a) is not exempt from the requirements of section 7A of the Act under regulation 8 or 9; and
(b) has become a member of a proposed TAS; and
(c) the TAS operator applies for approval of the TAS before 25 August 1994 but the Minister does not decide before that date whether to approve it;
the provider is exempt from the requirements of section 7A of the Act until the Minister makes a decision about the TAS.
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For the purposes of section 7A of the Act (Provider must be a member of tuition assurance scheme), a TAS must be established in accordance with this Part.
A TAS must:
(a) be approved in writing by the Minister; and
(b) provide for payment to a student who is entitled to be paid an amount by a member of the TAS under section 6B (Refund if provider defaults) or section 6C (Refund if student defaults) of the Act of an amount at least equal to the difference (if any) between the amount paid to the student under the respective section within the period specified in the section and the amount that the student is entitled to be paid under the section; and
(c) include arrangements to ensure that, if an overseas student has paid course money to a member of the scheme and has not withdrawn from the course, but the course does not start on the agreed starting date, or the member ceases to provide the course at any time after it starts but before it is completed:
(i) education or training equivalent to the education or training that the member has not provided, or has ceased to provide, is made available to the student; and
(ii) if the cost of any equivalent education or training provided to an overseas student under the TAS is greater than the amount that the student is entitled to be paid, because of the member’s default, under section 6B of the Act—provide for payment to the student of at least an amount equal to the difference between the cost of the equivalent education or training and the amount the student is entitled to be paid under the section; and
(d) provide for the circumstances in which a provider’s membership of the TAS may be cancelled.
A TAS must be operated by:
(a) an unlimited company that is not also a provider; or
(b) a company limited by guarantee that is not also a provider.
(1) The memorandum and articles of association of a company that operates a TAS must provide:
(a) for providers, or providers in a class of providers, to be members of the TAS; and
(b) that the principal object of the company is to operate a TAS in accordance with these regulations; and
(c) for rules for operation of the TAS that are consistent with these Regulations; and
(d) for the directors of the company to notify the Minister of any matter that, in the opinion of the directors, would prevent or significantly limit achievement of the principal object of the company.
The memorandum and articles of association of a company limited by guarantee must also provide for the company to take out an insurance policy that complies with regulation 15 in relation to each student who has paid course money in advance for a course offered by a member of the TAS.
(1) An insurance policy taken out by a provider or by a TAS operator in relation to a course must:
(a) indemnify each student who has paid course money in advance for the course and who is entitled to be paid an amount under section 6B or 6C of the Act in respect of the course as a result of unauthorised use or dealing with course money by the provider or an employee of the provider; and
(b) identify each student who is indemnified by the policy; and
(c) provide that a student who is indemnified by the policy may make a claim against the policy directly to the insurance provider; and
(d) provide for payment to a student who is indemnified by the policy, and who is entitled to be paid an amount under section 6B or 6C of the Act, of at least an amount equal to the difference (if any) between the amount paid under the section within the period specified in the section and the amount that the student is entitled to be paid under the section; and
(e) provide for payment to a student who is indemnified by the policy, and who is entitled to be paid an amount under section 6B of the Act, of at least an amount equal to the difference (if any) between:
(i) the total amount of course money paid for the course by the student; and
(ii) the sum of the amount (if any) paid to the student under that section within the period specified in the section and the amount (if any) paid to the student under the policy in accordance with paragraph (d);
if:
(iii) education or training equivalent to the education or training that the member has not provided, or has ceased to provide, is not made available to the student; or
(iv) the student elects to return to his or her home country instead of accepting equivalent education or training; and
(f) provide that the premiums for the policy are payable by the provider or the TAS operator respectively.
If, under a TAS, arrangements are in place that have the same effect in any respect in relation to a student that an insurance policy that complies with subregulation (1) would have, any insurance policy that the TAS operator is required to take out in respect of the student is not required to indemnify the student in that respect.
(1) An application for approval of a TAS may be made to the Minister.
An application must be in writing and must give full particulars of:
(a) the name and business address of the TAS operator, including information whether the operator is an unlimited company or a company limited by guarantee; and
(b) the way in which the TAS is to be operated, including details of the way in which the TAS will provide for payment of amounts to students, and of the arrangements for providing equivalent education or training to students, as mentioned in regulation 12; and
(c) each registered provider who is or will become a member of the scheme; and
(d) each course offered by a member or prospective member of the scheme that will be covered by the TAS.
If the operator is required to take out an insurance policy for the purposes of the TAS, the applicant must lodge with the application a copy of the insurance policy and a written list of the names of each student indemnified by the policy.
The application and any other document lodged in connection with it must be:
(a) clearly and legibly printed, typewritten or handwritten so that it can be reproduced clearly and legibly; and
(b) lodged at the principal office of the Department in Canberra.
The Minister may ask an applicant to give any further information that is reasonably required for a proper consideration of the application.
The Minister must approve a TAS if it complies with this Part.
(1) Within 60 days after the end of a reporting period, a TAS operator must give to the Minister the following particulars in relation to each provider who was a member of the TAS during the period:
(a) the name and business address of the member; and
(b) the name of each course provided by the member that was covered by the TAS during the period; and
(c) the number of students who paid course money in advance to the member for one or more of those courses; and
(d) the number of overseas students for whom equivalent education or training:
(i) was required to be provided under the TAS; and
(ii) was provided under the TAS; and
(e) a copy of any financial statement or directors’ report that is required to be made in relation to the company under Part 3.6 of the Corporations Law.
The Minister may, at any time, by notice in writing, ask the operator of a TAS that has been approved under regulation 17 to provide any further information relevant to assessing whether the TAS continues to comply with this Part.
The TAS operator must provide the further information within a reasonable period specified in the notice.
If there is a change in any of the particulars provided in relation to a TAS under subregulation (1) or (2) or regulation 16 (Applications for approval of a TAS), the operator of the scheme must give the Minister written particulars of the change within 14 days after its occurrence.
If a TAS operator rejects an application by a provider to become a member of the TAS, or cancels a provider’s membership of the TAS, the operator must notify the Minister of the provider’s name and business address, and of the reasons for rejecting the application or cancelling the membership.
The Minister may revoke approval of a TAS if:
(a) the TAS ceases to comply with this Part; or
(b) the TAS operator fails to comply with regulation 18 (Reporting requirements).
An application may be made to the
Administrative Appeals Tribunal under the
(a) not to approve a TAS; or
(b) to revoke approval of a TAS.
The Minister may delegate to a Senior Executive Service officer of the Department a power of the Minister under these Regulations.”.
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1. Notified in the
Commonwealth of Australia Gazette on 8 June 1994.2. Statutory Rules 1991 No. 364 as amended by 1992 No. 168; 1994 Nos. 101 and 146.
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