Education Services for Overseas Students (Suitable Alternative Courses) Instrument 2022

Administered by Department of Education

Legislation au F2022L01299 In force Legislative Instrument

Legislation content

EXPLANATORY STATEMENT

 

Issued by the authority of the Minister for Education

 

Education Services for Overseas Students Act 2000

 

Education Services for Overseas Students (Suitable Alternative Courses) Instrument 2022

 

AUTHORITY

Subsection 49(6) of the Education Services for Overseas Students Act 2000 (the Act) provides that the Minister may, by legislative instrument, specify criteria to be applied in considering whether a particular course is a suitable alternative course for the purposes of the Act.

Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument. The repeal of the Education Services for Overseas Students (Suitable alternative courses) Determination 2012 (No. 1) (the Former Instrument) by the Schedule to this instrument relies on that provision.

 

PURPOSE AND OPERATION

Part 5 of the Act establishes tuition protection for overseas students, or intending overseas students, at registered providers which aims to ensure students are protected and supported in the event of a provider default – that is, where the student has not withdrawn from a unit of study, and either the provider fails to start to provide a unit of study to the student on the day on which the unit was scheduled to start, or the provider ceases to provide a unit of study to the student on a day after the unit starts but before it is completed.

 

The Tuition Protection Service (TPS) Director is a Commonwealth statutory officer established by the Act, and has functions that include overseeing the operation of student placements, making payments to providers for accepting students affected by a provider default, overseeing refunds to students, managing the operation of the Overseas Student Tuition Fund (OSTF) and determining the amount of the annual TPS levy. The TPS Director has a role, in section 49 of the Act, in assisting students by providing them with suitable alternative courses (if there are any available), when a registered provider has defaulted in relation to an overseas student, or intending overseas student.

 

 

Subsection 49(6) of the Act allows for the Minister to specify criteria to be applied in considering whether a particular course is a suitable alternative course for the purposes of the Act. The purpose of the Education Services for Overseas Students (Suitable Alternative Courses) Instrument 2022 (the Instrument) is to repeal and replace the Former Instrument, which was due to sunset on 1 October 2022 in accordance with the Legislation Act 2003, and set out the criteria to be applied in considering whether a particular course is a suitable alternative course for the purposes of the Act.

 

REGULATORY IMPACT

The Office of Best Practice regulation has been consulted and advised that a Regulatory Impact Statement is not required for the Instrument due to the minor regulatory impact of the proposed changes (OBPR ID: 44167).

 

COMMENCEMENT

The Instrument takes effect from the day after the Instrument is registered on the Federal Register of Legislation.

 

CONSULTATION

As mentioned above, the TPS Director is a Commonwealth statutory officer established by the Act, and has functions that include overseeing the operation of student placements, making payments to providers for accepting students affected by a provider default, overseeing refunds to students, managing the operation of the OSTF and determining the amount of the annual TPS levy. The TPS Operations Team is located within the Department of Education, and supports the TPS Director. The TPS Director and the TPS Operations Team were consulted in the preparation of this Instrument and were supportive of the measures contained in this Instrument.

 

As prescribed in legislation (section 176A of the Act, section 113A of the Vet Student Loans Act 2016 (VSL Act), section 238-7 of the Higher Education Support Act 2003 (HESA) and section 203A of the Tertiary Education Quality and Standards Agency 2011 (TEQSA Act)), it is a requirement that the responsible Minister commence a review of the operation of the tuition protection arrangements. The Review must consider the operation of the tuition protection service and each Tuition Protection Fund and related matters. The Terms of Reference for the Review were issued on 14 September 2021. The Review was conducted by an independent consultant whose analysis was informed by comprehensive consultations with key stakeholders across the International Education, Higher Education and VET sectors. The Terms of Reference were to assess the effectiveness and efficiency of the current legislative, operational, administrative and governance arrangements of the TPS, including:

  • whether the current delivery arrangements best meet the tuition protection policy objectives as set out in the Act, VSL Act, HESA and the TEQSA Act, and
  • the framework of the current legislative structure of the TPS as set out in the Act, VSL Act, HESA, the TEQSA Act, and multiple subordinate legislative instruments.

The Review concluded in February 2022 and found that:

  • 65% of students previously supported by the TPS, and who responded to the survey, were very satisfied or satisfied by TPS operations regarding refunds or finding an alternative course, and
  • TPS’s performance is resilient to high volumes of activity, indicating that current operational models scale well to increased volumes.

 

The Review made no recommendations regarding changing the content of this Instrument.

 


STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Education Services for Overseas Students (Suitable Alternative Courses) Instrument 2022

 

The Education Services for Overseas Students (Suitable Alternative Courses) Instrument 2022 (the Instrument) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument

Part 5 of the Act establishes tuition protection for overseas students, or intending overseas students, at registered providers which aims to ensure students are protected and supported in the event of a provider default – that is, where the student has not withdrawn from a unit of study, and either the provider fails to start to provide a unit of study to the student on the day on which the unit was scheduled to start, or the provider ceases to provide a unit of study to the student on a day after the unit starts but before it is completed.

The Tuition Protection Service (TPS) Director is a Commonwealth statutory officer established by the Act, and has functions that include overseeing the operation of student placements, making payments to providers for accepting students affected by a provider default, overseeing refunds to students, managing the operation of the Overseas Student Tuition Fund and determining the amount of the annual TPS levy. The TPS Director has a role, in section 49 of the Act, in assisting students by providing them with suitable alternative courses (if there are any available), when a registered provider has defaulted in relation to an overseas student, or intending overseas student.

Subsection 49(6) of the Act allows for the Minister to specify criteria to be applied in considering whether a particular course is a suitable alternative course for the purposes of the Act. The purpose of the Education Services for Overseas Students (Suitable Alternative Courses) Instrument 2022 (the Instrument) is to repeal the Former Instrument and set out the criteria to be applied in considering whether a particular course is a suitable alternative course for the purposes of the Act.

Human rights implications

Right to education

The Instrument engages the right to education, under Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Paragraph 13(2)(c) of the ICESCR provides that higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education.

Section 6 of the Instrument provides criteria to be applied in determining that a course is a suitable alternative course. The criteria to be applied in considering whether a course is a suitable alternative course are whether the course is offered by a person who is registered under the Act to provide that particular course at the location in which that course is provided, or provides that course in accordance with an arrangement that the person has with a registered provider for that particular course for the particular location; whether the course is of a similar level of education and field of education as the course to which the default relates; the geographical location of the alternative course; and the acceptability of the alternative course to the student.

As mentioned above, the TPS Director has a role in assisting students by providing them with suitable alternative courses (if there are any available), when a registered provider has defaulted in relation to an overseas student, or intending overseas student. The criteria as set out in section 6 of the Instrument assist the TPS Director with providing students with suitable alternative courses, by enabling the TPS Director to determine whether a course is a suitable alternative course.  

The Instrument supports the right to education as it provides a mechanism for students to be provided with support, in the form of being offered a suitable alternative course, in the event their registered provider defaults. This will allow for these students to continue their education and obtain a qualification, providing continuity of coverage for students, and ensures that a student’s chosen educational pathway can continue unimpeded by provider default, noting that a refund is a last resort and efforts will be made to preserve the student’s path of study to the extent achievable.

The Instrument supports the right to education.

Conclusion

This Instrument is compatible with human rights because it supports the right to education.

 

The Hon Jason Clare MP, Minister for Education

 


EDUCATION SERVICES FOR OVERSEAS STUDENTS (SUITABLE ALTERNATIVE COURSES) INSTRUMENT 2022

 

EXPLANATION OF PROVISIONS

 

Section 1: Name

 

  1. This section provides that the title of the Instrument is the Education Services for Overseas Students (Suitable Alternative Courses) Instrument 2022 (the Instrument).

 

Section 2: Commencement

 

2.      This section provides that the Instrument will commence the day after it is registered on the Federal Register of Legislation.

 

Section 3: Authority

 

3.      This section provides that the Instrument is made under subsection 49(6) of the Education Services for Overseas Students Act 2000 (the Act).

 

Section 4: Definitions

 

4.      This section provides definitions for certain expressions used in the Instrument, and notes that a number of expressions used in the Instrument are already defined in section 5 of the Act.  

 

Section 5: Schedule

5.      This section clarifies that Schedule 1 is effective on its terms (that is, to repeal the Education Services for Overseas Students (Suitable alternative courses) Determination 2012 (No. 1) (the Former Instrument)).

 

Section 6: Criteria to be applied in considering whether a particular course is a ‘suitable alternative course’

 

6.      This section specifies the criteria to be applied in considering whether a course is a suitable alternative course for the purposes of the Act.

 

 

 

7.      The stated criteria are whether the course is offered by a person who is registered under the Act to provide that particular course at the location in which that course is provided, or provides that course in accordance with an arrangement that the person has with a registered provider for that particular course for the particular location; whether the course is of a similar level of education and field of education as the course to which the default relates; the geographical location of the alternative course; and the acceptability of the alternative course to the student.

 

SCHEDULE 1—REPEALS

 

Item 1: The whole of the instrument

 

8.      This item repeals the Former Instrument.

 

 

Overview

The Education Services for Overseas Students (Suitable Alternative Courses) Instrument 2022 was enacted to address the need for criteria to determine whether a particular course is a suitable alternative for overseas students when a registered provider defaults. The Act, Education Services for Overseas Students Act 2000, was introduced by the Australian Parliament to establish tuition protection for overseas students, ensuring they are supported in the event of a provider default. The Instrument was made under subsection 49(6) of the Act, allowing the Minister to specify criteria for suitable alternative courses. The purpose of this Instrument is to repeal the Education Services for Overseas Students (Suitable Alternative Courses) Determination 2012 and set out new criteria for considering suitable alternative courses. It ensures continuity of education for overseas students by providing a mechanism for them to be offered a suitable alternative course when their registered provider defaults, thus supporting the right to education as recognised under international human rights instruments. The policy objective of the Act is to protect and support overseas students by establishing tuition protection in case of a provider default, and the Instrument further refines this objective by specifying criteria for suitable alternative courses. The Instrument is compatible with human rights, particularly the right to education, by providing a framework that allows overseas students to continue their education uninterrupted. The Instrument came into effect the day after its registration on the Federal Register of Legislation, replacing the Former Instrument and ensuring that the criteria for suitable alternative courses are updated and clearly defined.

Scope and Application

The Education Services for Overseas Students (Suitable Alternative Courses) Instrument 2022 applies to overseas students and intending overseas students who are enrolled in courses offered by registered providers in Australia, particularly in situations where a provider defaults in delivering the course as scheduled. This Instrument is made under subsection 49(6) of the Education Services for Overseas Students Act 2000 (the Act) and operates on a national level within Australia. The Instrument specifies the criteria for determining suitable alternative courses for overseas students when their original provider defaults, aiming to ensure continuity in their education. The primary exclusions or thresholds are determined by the specific criteria outlined in the Instrument, such as the course being offered by a registered provider, being of a similar level and field of education, and being acceptable to the student. The application of the Act may be extended or restricted through subordinate instruments, although no such provisions are noted in this particular Instrument.

Key Provisions

The Education Services for Overseas Students (Suitable Alternative Courses) Instrument 2022 (the Instrument) was created under subsection 49(6) of the Education Services for Overseas Students Act 2000 (the Act). The Instrument repeals the Education Services for Overseas Students (Suitable alternative courses) Determination 2012 (No. 1) (the Former Instrument) and sets out criteria for determining whether a particular course is a suitable alternative course for the purposes of the Act. The Instrument takes effect from the day after it is registered on the Federal Register of Legislation. The primary operative section of the Instrument is section 6, which specifies the criteria for determining whether a particular course is a suitable alternative course. These criteria include whether the course is offered by a registered provider or under an arrangement with a registered provider, whether the course is of a similar level and field of education as the defaulted course, the geographical location of the alternative course, and the acceptability of the alternative course to the student. These criteria are essential in guiding the Tuition Protection Service (TPS) Director, a Commonwealth statutory officer established by the Act, in assisting students by providing them with suitable alternative courses when a registered provider defaults. The Instrument imposes obligations on the parties or entities it governs, particularly on the TPS Director. The TPS Director must use the criteria specified in section 6 to determine whether a course is a suitable alternative course and assist students accordingly. This includes overseeing the operation of student placements, making payments to providers for accepting students affected by a provider default, overseeing refunds to students, and managing the operation of the Overseas Student Tuition Fund. Additionally, the Instrument requires the TPS Director to ensure that efforts are made to preserve the student’s path of study to the extent achievable, with a refund being a last resort. There are no specific offences, penalties, or civil/criminal consequences outlined in the Instrument itself. However, the Act under which the Instrument is made includes provisions for penalties and consequences for breaches related to tuition protection and provider defaults. For instance, providers who fail to meet their obligations under the Act may face penalties, and students may be entitled to refunds or other forms of support through the Overseas Student Tuition Fund. The specific penalties and consequences are detailed in the Education Services for Overseas Students Act 2000 and related legislation, but they are not explicitly stated in the Instrument. The focus of the Instrument is on establishing criteria for suitable alternative courses, leaving the enforcement of compliance and penalties to the broader legislative framework provided by the Act and related statutes.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.