Commonwealth Numbered Regulations

1994 No. 154 EDUCATION SERVICES FOR OVERSEAS STUDENTS (REGISTRATION OF PROVIDERS AND FINANCIAL REGULATION) REGULATIONS (AMENDMENT) - REG 6

6.1 After regulation 8 insert:

Other exemptions-membership of a TAS

"9.(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.



"(2) 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.



"(3) 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.

Transitional exemptions from membership of TAS

"10.(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.



"(2) 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.

               "PART 2-TUITION ASSURANCE SCHEMES
Establishing a TAS

"11. 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.

TAS requirements

"12. 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.

TAS operators

"13. 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.

Membership, objects and rules of companies operating a TAS

"14.(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.



"(2) 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.

Insurance policy requirements

"15.(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.



"(2) 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.

Application for approval of a TAS

"16.(1) An application for approval of a TAS may be made to the Minister.



"(2) 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.



"(3) 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.



"(4) 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.



"(5) The Minister may ask an applicant to give any further information that is
reasonably required for a proper consideration of the application.

Approval of a TAS

"17. The Minister must approve a TAS if it complies with this Part.

Reporting requirements

"18.(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.



"(2) 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.



"(3) The TAS operator must provide the further information within a reasonable
period specified in the notice.



"(4) 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.



"(5) 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.

Revocation of approval of a TAS

"19. 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) .

Review by Administrative Appeals Tribunal

"20. An application may be made to the Administrative Appeals Tribunal under
the Administrative Appeals Tribunal Act 1975 for review of a decision by the
Minister:

   (a)  not to approve a TAS; or

   (b)  to revoke approval of a TAS.

Delegation by Minister

"21. The Minister may delegate to a Senior Executive Service officer of the
Department a power of the Minister under these Regulations.".