Education Services for Overseas Students Legislation Amendment (2006 Measures No. 2) Act 2006

Education Services for Overseas Students Legislation Amendment (2006 Measures No. 2) Act 2006

No. 144, 2006

An Act to amend the law about education services for overseas students, and for related purposes

Contents

1 Short title

2 Commencement

3 Schedule(s)

Schedule 1—Membership of tuition assurance scheme as prerequisite for registration

Education Services for Overseas Students Act 2000

Schedule 2—Reporting by registered provider

Part 1—Early termination of studies

Education Services for Overseas Students Act 2000

Part 2—Breach of prescribed conditions of student visa

Education Services for Overseas Students Act 2000

Migration Act 1958

Schedule 3—Refunds to students etc.

Education Services for Overseas Students Act 2000

Schedule 4—National code

Education Services for Overseas Students Act 2000

Education Services for Overseas Students Legislation Amendment (2006 Measures No. 2) Act 2006

No. 144, 2006

An Act to amend the law about education services for overseas students, and for related purposes

[Assented to 6 December 2006]

The Parliament of Australia enacts:

1  Short title

  This Act may be cited as the Education Services for Overseas Students Legislation Amendment (2006 Measures No. 2) Act 2006.

2  Commencement

 (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

 (2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

3  Schedule(s)

  Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Membership of tuition assurance scheme as prerequisite for registration

Education Services for Overseas Students Act 2000

1  After paragraph 9(2)(b)

Insert:

 (ba) either:

 (i) the provider is a member of a tuition assurance scheme that is established in accordance with the regulations made for the purposes of paragraph 22(1)(a) and that covers the course; or

 (ii) the provider is exempt from the requirements of section 22 under regulations made for the purposes of subsection 22(3); and

2  Application

Paragraph 9(2)(ba) of the Education Services for Overseas Students Act 2000 applies in relation to the registration of providers on and after the commencement of this Schedule.

Schedule 2—Reporting by registered provider

Part 1—Early termination of studies

Education Services for Overseas Students Act 2000

1  Paragraph 19(1)(d)

Omit “studies by an accepted student”, substitute “an accepted student’s studies (whether as a result of action by the student or the provider or otherwise)”.

Part 2—Breach of prescribed conditions of student visa

Education Services for Overseas Students Act 2000

2  Subsections 19(2) and 20(1)

Omit “student visa condition relating to attendance or satisfactory academic performance”, substitute “prescribed condition of a student visa”.

3  Application

The amendment of subsections 19(2) and 20(1) of the Education Services for Overseas Students Act 2000 made by this Part applies to breaches of conditions of visas that occur on or after the commencement of this Part.

4  Subsection 104(1) (penalty)

Omit “60”, substitute “50”.

5  Subsection 104(3) (penalty)

Omit “60”, substitute “50”.

6  Subsection 104(4) (penalty)

Omit “60”, substitute “50”.

Migration Act 1958

7  Subsection 137J(1) (note)

Omit “relating to attendance or satisfactory academic performance”, substitute “that is prescribed by regulations made for the purposes of that Act”.

Schedule 3—Refunds to students etc.

Education Services for Overseas Students Act 2000

1  At the end of subsection 27(2)

Add:

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

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

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

 (iii) misbehaviour by the student.

2  Subsection 27(3) (at the end of the definition of default day)

Add:

 ; or (d) the day on which the registered provider of the course refuses to provide, or continue providing, the course to the student, if paragraph (2)(c) applies.

3  Application

The amendments of section 27 of the Education Services for Overseas Students Act 2000 by this Schedule apply to refusals because of acts and omissions by overseas students and intending overseas students occurring on or after the commencement of this Schedule.

4  At the end of section 28

Add:

 (4) Despite subsection (1), this section does not apply if:

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

 (b) the refusal was a reason for one or more of the following acts or omissions by the student that directly or indirectly caused subsection 27(2) to apply:

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

 (ii) the student’s withdrawal from the course;

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

5  Application

Section 28 of the Education Services for Overseas Students Act 2000 as amended by this Schedule applies in relation to agreements made on or after the commencement of this Schedule.

6  After subsection 76(1)

Insert:

 (1A) The Fund Manager must not make a determination under subsection (1) if the time when the Fund Manager becomes aware that the circumstances described in paragraphs (1)(a), (b) and (c) may exist is more than 12 months after the default day relevant to the requirement mentioned in paragraph (1)(a).

7  Application

Subsection 76(1A) of the Education Services for Overseas Students Act 2000 applies in relation to default days that are on or after the commencement of this Schedule.

8  Subsection 76(2)

Omit “However”, substitute “Despite subsection (1)”.

9  After subsection 77(1)

Insert:

 (1A) However, the amount that the Fund Manager must pay out of the Fund under paragraph (1)(b) is reduced by the amount worked out under the regulations if:

 (a) the student undertook (but did not complete) the course (the old course) to which the call made on the Fund relates; and

 (b) since undertaking the old course, the student has been enrolled in another course (the new course); and

 (c) the work required of the student in undertaking the new course is reduced on account of the student’s work in undertaking the old course.

10  After section 77

Insert:

77A  Fund Manager may ask provider of new course about academic credit or recognition of prior learning

 (1) This section applies for the purposes of enabling the Fund Manager to work out:

 (a) whether subsection 77(1A) applies to reduce the amount payable out of the Fund because:

 (i) since undertaking a course (the old course) to which a call made on the Fund relates, the student concerned has been enrolled in another course (the new course); and

 (ii) the work required of the student in undertaking the new course is reduced on account of the student’s work in undertaking the old course; and

 (b) the amount of any reduction of a payment out of the Fund under subsection 77(1A).

 (2) The Fund Manager may request a registered provider whom the Fund Manager believes has enrolled the student in the new course to inform the Fund Manager within a specified reasonable period:

 (a) whether the provider has enrolled the student; and

 (b) whether the work required of the student in undertaking the new course is reduced on account of the student’s work in undertaking the old course; and

 (c) if the work is reduced, the extent and monetary value of the reduction.

 (3) The registered provider must comply with the request.

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

11  Application

Subsection 77(1A) and section 77A of the Education Services for Overseas Students Act 2000 apply in relation to calls made on the Fund on or after the commencement of this Schedule.

Schedule 4—National code

Education Services for Overseas Students Act 2000

1  Section 5 (definition of national code)

Repeal the definition, substitute:

national code means the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students in force under Part 4.

2  Subsection 9(8)

Repeal the subsection, substitute:

 (8) Paragraph (2)(ca) does not apply when there is not a national code in force.

3  Subsection 33(1)

Repeal the subsection, substitute:

 (1) The Minister may make a national code by legislative instrument expressed to commence on a day at least 28 days after it is registered in the Federal Register of Legislative Instruments.

Note: The Minister may amend the national code by legislative instrument with that kind of commencement provision, after consultations like those the Minister must undertake under section 36 before making the code. See subsection 33(3) of the Acts Interpretation Act 1901.

4  At the end of section 33

Add:

 (3) The Minister must ensure as far as practicable that there is a national code in force at all times.

5  Section 35

Repeal the section.

6  Subsection 36(2)

Omit “establishing the”, substitute “making a”.

7  Sections 37 and 39

Repeal the sections.

8  Subsections 41(1) and (2)

Repeal the subsections, substitute:

 (1) The Secretary must give each registered provider written notice of:

 (a) the making or amendment of the national code; and

 (b) the day on which the code or amendment takes effect for the provider; and

 (c) the way in which the provider can get access to the text of the code in force on that day.

 (2) A notice given under subsection (1) is not a legislative instrument.

9  At the end of subsection 41(3)

Add “or an amendment of the code”.

10  Section 42

Repeal the section.

11  Transitional provision

The national code that was in force immediately before the commencement of this Schedule continues in force after that commencement as if it had been made under Part 4 of the Education Services for Overseas Students Act 2000 as amended by this Schedule.

 [Minister’s second reading speech made in—

House of Representatives on 6 September 2006

Senate on 14 September 2006]