Discussion of Standard 15 – Changes to registered providers' ownership or management

Introduction
What's new
Obligations and responsibilities
Documents, knowledge and procedures
 Definitions
Learning Activity
National Code 2007

Introduction

DEST (now DEEWR) Commentary

Registered providers are required to advise the designated authority where there is a change to the registered provider’s ownership or management. If changes during the period of registration affect the legal entity of the registered provider, the new owner or entity must seek a new CRICOS registration. In these situations, the designated authority is to be notified as soon as possible prior to the change taking place. Where the change of ownership does not result in a new legal entity, any new owners or managers will be subject to the ‘fit and proper person’ test required under section 9(6) of the ESOS Act.

Generic standard applicable to all sectors

What's new

  • Notification to the designated authority of changes of ownership or changes to high managerial agents must now take place before the change takes place.
  • The provider must provide the designated authority with information on the new owner or high managerial agent.
  • Further reference document: DEST Comparison Chart (December 2006).

Obligations and responsibilities

  • The provider must be proactive in informing the designated authority in writing about the following instances:
    • the provider is expected to advise the designated authority about any changes to their ownership and/or management as soon as practicable before the changes take effect
    • the provider is expected to advise the designated authority about any changes to their high managerial agents(see Definitions) as soon as practicable before the changes take effect or within 10 days of the change when the effects cannot be determined beforehand
    • the designated authority must have information on the new owner or high managerial agent in order to make an assessment under section 9(6) of the ESOS Act (i.e that they are fit and proper to be registered through CRICOS).

List of documents and specific knowledge of institutional and government matters and procedures required for this standard

  • Documents:
    • Documentation of prospective changes in ownership and/or management
    • Documented information about the new owner and/or management
  • Knowledge:
    • Section 9(6) of the ESOS Act
    • Section 5 of the ESOS Act
  • Procedures:
    • Institutional procedure to proactively inform the designated authority about prospective and actual changes to their ownership and/or management within the nominated timeframes.

Definitions of key words/phrases

  • CRICOS: Commonwealth Register of Institutions and Courses for Overseas Students
    - CRICOS is the Commonwealth listing of approved providers and the courses that may be offered to overseas students. If a course is not listed on CRICOS, it must not be offered or provided to overseas students.
  • Designated authority
    - A person responsible under the laws of a state for approving providers to provide courses to overseas students in that state (see Section 5 of the ESOS Act)
  • High managerial agent
    - An employee, agent or officer of the provider with duties of such responsibility that his or her conduct may fairly be assumed to represent the provider in relation to the business of providing courses (see Section 5 of the ESOS Act). Examples of the categories of person to be captured under this amendment – officers with management responsibility, consultants, principals and include teachers. The purpose of this is to prevent persons with a history of non-compliance with the ESOS Act, who are not providers or associates of providers (both currently captured by the legislation), from taking up positions of responsibility with other providers. So, wherever an employee, consultant, principal, or teacher has sufficient responsibility within an organisation to make decisions with regard to the operation of the provider, a test of their suitablity would be applied.
  • Ownership / Management
    - To be registered on CRICOS, a provider must be a resident of Australia (sections 9 and 16 of the ESOS Act 2000). A company must be incorporated in Australia, carry on business in Australia and have its central management and control in Australia. An unincorporated body must carry on its business in Australia and have its central management and control in Australia (ESOS Guide to providers, 2001, p3).
  • Section 9(6) of the ESOS Act
    - The State authority must be satisfied that the new owners or management are fit and proper to be registered through CRICOS (ESOS Guide to providers, 2001, pg 6)

Learning Activity

National Code 2007

Outcome of Standard 15

Registered providers proactively inform the designated authority of prospective ownership
and/or management changes.

15.1

The registered provider must advise the designated authority in writing of:

  1. any prospective changes to the ownership of the registered provider as soon as practicable prior to the change taking effect, and
  2. any prospective or actual change to the high managerial agents (as defined in section 5 of the ESOS Act) of the registered provider as soon as practicable prior to the change taking effect or within 10 working days of the change taking effect where the change cannot be determined until it takes effect.
15.2

The registered provider must provide the designated authority with information on the new owner or high managerial agent for the purpose of making an assessment under section 9(6) of the ESOS Act.

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