Section 170B - Education Services for Overseas Students Legislation Amendment (Tuition Protection Service and Other Measures) Act 2012 - Annual report | Zoe
Education Services for Overseas Students Legislation Amendment (Tuition Protection Service and Other Measures) Act 2012
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(1) After the end of each financial year, the TPS Director must prepare and give to the Minister a report in relation to the following:
(a) the financial status of the OSTF during that financial year;
(b) the number of students placed in alternative courses under section 49 during that financial year;
(c) the time taken to place students in alternative courses under section 49 during that financial year;
(d) the number of calls made on the OSTF during that financial year;
(e) the time taken to pay an amount under section 50B during that financial year;
(f) the total of any amounts paid out under section 50B during that financial year;
(g) an assessment of any issues affecting the operation of Part 5 (tuition protection service) during that financial year;
(h) an assessment of any issues that might affect the operation of Part 5 in future financial years;
(i) an assessment of the outlook of the industry that provides courses to overseas students, and any potential risk to the OSTF as a result of that outlook.
(2) The report must be included in the Department’s annual report for that financial year.
31 At the end of section 170
Add:
Immigration Secretary
(5) The Immigration Secretary may, by signed writing, delegate his or her power under section 50D (TPS Director to notify Immigration Secretary) to an SES employee or acting SES employee in the Department administered by the Immigration Minister.
32 Paragraph 172(1)(c)
Repeal the paragraph, substitute:
(c) TPS levy (other than a provider’s first TPS levy);
33 Paragraph 173(1)(c)
Repeal the paragraph, substitute:
(c) TPS levy (other than a provider’s first TPS levy).
34 Subsection 173(2)
Omit “the Fund, the Fund Manager”, substitute “the OSTF, the TPS Director”.
Giving information to government agencies, the TPS Director etc.
37 Paragraphs 175(1)(f) and (g)
Repeal the paragraphs, substitute:
(f) the TPS Director; or
(g) a Board member; or
38 Before paragraph 176(1)(b)
Insert:
(af) a decision not to notify a registered provider under subsection 46A(4); or
(ag) a decision under section 53A as to an amount of TPS levy to be paid by a provider; or
Tertiary Education Quality and Standards Agency Act 2011
39 Paragraph 189(1)(e)
Omit “the Fund Manager, or the operator of an applicable tuition assurance scheme,”, substitute “the TPS Director,”.
Part 3—Contingent amendments
Division 1—Amendment that will not commence if the Registration Charges Acts commence first
Education Services for Overseas Students Act 2000
40 Section 90 (heading)
Omit “annual Fund contribution, special levy”, substitute “TPS levy”.
Division 2—Amendment commencing immediately after the later of the commencement of Part 1 of this Schedule and the Registration Charges Acts
Education Services for Overseas Students Act 2000
41 Section 90 (heading)
Omit “contribution,”.
Part 4—Repeal of the Education Services for Overseas Students (Assurance Fund Contributions) Act 2000
Education Services for Overseas Students (Assurance Fund Contributions) Act 2000
42 The whole of the Act
Repeal the Act.
Part 5—Application, saving and transitional provisions
Division 1—Introduction
43 Definitions
In this Part:
asset means:
(a) any legal or equitable estate or interest in real or personal property, whether actual, contingent or prospective; and
(b) any right, power, privilege or immunity, whether actual, contingent or prospective;
but does not include a right, power, privilege or immunity conferred by an Act or by regulations or other subordinate legislation made under an Act.
ESOS Act means the Education Services for Overseas Students Act 2000.
liability means any liability, duty or obligation, whether actual, contingent or prospective, but does not include a liability, duty or obligation imposed by an Act or by regulations or other subordinate legislation made under an Act.
old Fund means the ESOS Assurance Fund established under section 45 of the ESOS Act (as in force immediately before this item commences).
Division 2—Defaults
44 Application—defaults after commencement
The amendments made by this Schedule apply in relation to any default by a registered provider, or an overseas student or intending overseas student, that occurs after this item commences.
45 Transitional—defaults before commencement
(1) This item sets out what happens if:
(a) before this item commences:
(i) a registered provider defaults in relation to an overseas student or intending overseas student and a course at a location; or
(ii) an overseas student or intending overseas student defaults in relation to a course at a location; and
(b) by the time this item commences:
(i) the student has not accepted an alternative course in accordance with Division 2 of Part 3, or Division 5 of Part 5, of the ESOS Act (as in force immediately before this item commences); and
(ii) the student has not been provided with a refund under one of those Divisions.
(2) Despite the repeal of Division 2 of Part 3, and Division 5 of Part 5, of the ESOS Act by this Schedule, those Divisions (except subsections 31(4) to (5)) (as in force immediately before this item commences) continue to apply after this item commences, in relation to the default, with the following changes:
(a) references in those Divisions to the Fund Manager are taken to be references to the TPS Director;
(b) references in those Divisions to the Fund are taken to be references to the Overseas Students Tuition Fund;
(c) section 77 of the ESOS Act applies as if it required the TPS Director to comply with that section within:
(i) the period of 30 days of a call being made on the Fund; or
(ii) if the TPS Director determines that exceptional circumstances apply—any longer period determined in writing by the TPS Director, and agreed to by the student;
(d) the TPS Director may pay an amount in relation to a student under section 77 of the ESOS Act without having attempted to place the student in a suitable alternative course.
(3) For the purposes of section 52C of the ESOS Act (as inserted by this Schedule), making a payment under section 77 of the ESOS Act (as continued by this item) is taken to be a purpose of the Overseas Students Tuition Fund.
Division 3—The old Fund and the OSTF
46 Vesting of assets of old Fund
(1) This item applies to the assets of the old Fund immediately before this item commences.
(2) At that time, the assets cease to be assets of the old Fund and become assets of the Commonwealth without any conveyance, transfer or assignment. The Commonwealth becomes the successor in law in relation to the assets.
47 Transferring amount standing to the credit of the old Fund
The amount standing to the credit of the old Fund immediately before this item commences is, by force of this item, transferred to the Commonwealth immediately after this item commences.
48 Vesting of liabilities of old Fund
(1) This item applies to the liabilities of the old Fund immediately before this item commences, other than any loan from the Commonwealth.
(2) At that time, the liabilities cease to be liabilities of the old Fund and become liabilities of the Commonwealth without any conveyance, transfer or assignment. The Commonwealth becomes the successor in law in relation to the liabilities.
49 Transitional—financial accountability
Despite the repeal of section 80 of the ESOS Act by this Schedule, that section (as in force immediately before this item commences) continues to apply, after this item commences, with the following changes:
(a) the TPS Director (and not the Fund Manager) must arrange for the independent auditor to prepare the report;
(b) the report must be prepared as soon as possible after 30 June of the year in which this item commences (and not after the end of a calendar year);
(c) the report must be given to the Minister only (and not the Panel).
50 Section 82 of the ESOS Act
To avoid doubt, section 82 of the ESOS Act (as in force immediately before this item commences) does not apply in relation to the repeal of Division 1 of Part 5 of that Act by this Schedule.
51 Seed funding for the OSTF
(1) Despite section 52B of the ESOS Act (as inserted by this Schedule), the amount (the seed funding amount) of $5 million is, by force of this item, credited to the OSTF immediately after this item commences.
Returning amounts to the Commonwealth
(2) The difference between:
(a) the seed funding amount; and
(b) the total of amounts debited from the OSTF under section 52C of the ESOS Act (as inserted by this Schedule) before the 1 July that occurs 1 year after this item commences;
is, by force of this item, debited from the OSTF at the beginning of that 1 July.
Division 4—The Fund Manager and the Contributions Review Panel
52 Termination of appointment of Fund Manager
A person who, immediately before this item commences, is appointed as Fund Manager, ceases, by force of this item, to be Fund Manager after that time.
53 References in Acts and instruments—Fund Manager
(1) If:
(a) an Act or instrument is in force immediately before this item commences; and
(b) the Act or instrument contains a reference to the Fund Manager;
the Act or instrument has effect after this item commences as if the reference to the Fund Manager were a reference to the TPS Director.
Note: During the first year after this item commences, instruments can retrospectively amend references to the Fund Manager: see item 59.
(2) The Minister may, by writing, determine that subitem (1):
(a) does not apply in relation to a specified reference; or
(b) applies, in relation to a specified reference, as if the reference in that subitem to the TPS Director were a reference to the Commonwealth.
A determination under this subitem has effect accordingly.
(3) The regulations may provide that an instrument containing a reference specified in a determination under paragraph (2)(a) has effect, after this item commences, as if the reference were a reference to a person or body other than the TPS Director or the Commonwealth.
(4) A determination made under subitem (2) is not a legislative instrument.
54 Operation of laws—Fund Manager
(1) If, before this item commences, a thing was done by, or in relation to, the Fund Manager, then, for the purposes of the operation of any law of the Commonwealth after this item commences, the thing is taken to have been done by, or in relation to, the TPS Director.
(2) For the purposes of subitem (1), a thing done before this item commences under a provision that is amended by this Act has effect from that time as if it were done under that provision as amended. However, this is not taken to change the time at which the thing was actually done.
(3) The Minister may, by writing, determine that subitem (1):
(a) does not apply in relation to a specified thing done by, or in relation to, the Fund Manager; or
(b) applies as if the reference in that subitem to the TPS Director were a reference to the Commonwealth.
A determination under this subitem has effect accordingly.
(4) The regulations may provide for a thing specified in a determination under paragraph (3)(a) to be taken to have been done by, or in relation to, a person or body other than the TPS Director or the Commonwealth.
(5) A determination made under subitem (3) is not a legislative instrument.
55 Transitional—transfer of Fund Manager’s records
(1) This item applies to any records or documents that are in the possession of the Fund Manager immediately before this item commences.
(2) The records and documents are, by force of this item, transferred to the Commonwealth after this item commences.
56 Termination of appointment of members of Contributions Review Panel
A person who, immediately before this item commences, is a member of the Contributions Review Panel, ceases, by force of this item, to hold office as such a member after that time.
57 References in Acts and instruments—Contributions Review Panel
(1) If:
(a) an Act or instrument is in force immediately before this item commences; and
(b) the Act or instrument contains a reference to the Contributions Review Panel;
the Act or instrument has effect after this item commences as if the reference to the Contributions Review Panel were a reference to the TPS Advisory Board.
Note: During the first year after this item commences, instruments can retrospectively amend references to the Contributions Review Panel: see item 59.
(2) The Minister may, by writing, determine that subitem (1):
(a) does not apply in relation to a specified reference; or
(b) applies, in relation to a specified reference, as if the reference in that subitem to the TPS Advisory Board were a reference to the Commonwealth.
A determination under this subitem has effect accordingly.
(3) The regulations may provide that an instrument containing a reference specified in a determination under paragraph (2)(a) has effect after this item commences as if the reference were a reference to a person or body other than the TPS Advisory Board or the Commonwealth.
(4) A determination made under subitem (2) is not a legislative instrument.
58 Operation of laws—Contributions Review Panel
(1) If, before this item commences, a thing was done by, or in relation to, the Contributions Review Panel, then, for the purposes of the operation of any law of the Commonwealth after this item commences, the thing is taken to have been done by, or in relation to, the TPS Advisory Board.
(2) For the purposes of subitem (1), a thing done before this item commences under a provision that is amended by this Act has effect after this item commences as if it were done under that provision as amended. However, this is not taken to change the time at which the thing was actually done.
(3) The Minister may, by writing, determine that subitem (1):
(a) does not apply in relation to a specified thing done by, or in relation to, the Contributions Review Panel; or
(b) applies as if the reference in that subitem to the TPS Advisory Board were a reference to the Commonwealth.
A determination under this subitem has effect accordingly.
(4) The regulations may provide for a thing specified in a determination under paragraph (3)(a) to be taken to have been done by, or in relation to, a person or body other than the TPS Advisory Board or the Commonwealth.
(5) A determination made under subitem (3) is not a legislative instrument.
59 Amending instruments may be retrospective
(1) If:
(a) an instrument is made within the period of 12 months beginning on the day on which this item commences; and
(b) a provision of the instrument amends a reference to the Fund Manager or the Contributions Review Panel;
the provision may be expressed to take effect from the day that this item commences, or a later day in the period referred to in paragraph (a), that occurs before the instrument is made.
(2) This item has effect despite subsection 12(2) of the Legislative Instruments Act 2003.
60 Transitional—reviews
(1) This item applies if, before this item commences:
(a) a person applies for a review of the amount of its annual Fund contribution under section 66 or 68 of the ESOS Act (as in force immediately before this item commences); and
(b) a notice has not been given under section 67 or 69 (as the case requires) of that Act.
(2) Despite the repeal of Subdivision B of Division 4 of Part 5 (rights of review) of the ESOS Act by this Schedule, that Subdivision continues to apply, after this item commences, as if:
(a) a reference in that Subdivision to the Fund Manager were a reference to the TPS Director; and
(b) a reference in that Subdivision to the Panel were a reference to the Secretary.
Division 5—Payment of TPS levies
61 Application—payment of TPS levies
The requirement to pay a TPS levy imposed by section 14 of the Education Services for Overseas Students (TPS Levies) Act 2012 applies in relation to:
(a) the first calendar year that begins after the day this item commences; and
(b) later calendar years.
Division 6—Miscellaneous
62 Constitutional safety net
(1) If the operation of this Schedule would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.
(2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in a court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.
(3) In this item:
acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.
just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.
63 Delegation by Minister
(1) The Minister may, by writing, delegate all or any of his or her powers and functions under this Part to a person.
(2) The delegate must be:
(a) the Secretary; or
(b) an SES employee, or acting SES employee, in the Department.
Note: SES employee is defined in section 2B of the Acts Interpretation Act 1901.
(3) In exercising powers or functions under a delegation, the delegate must comply with any directions of the Minister.