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This is a Bill, not an Act. For current law, see the Acts databases.
1998-1999-2000
The Parliament
of the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Education
Services for Overseas Students Bill 2000
No.
, 2000
(Education, Training and Youth
Affairs)
A Bill for an Act to regulate
education services for overseas students, and for related
purposes
ISBN: 0642 450757
Contents
A Bill for an Act to regulate education services for
overseas students, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Education Services for Overseas Students
Act 2000.
(1) This section and section 1 commence on the day on which this Act
receives the Royal Assent.
(2) The remaining provisions of this Act commence on a day or days to be
fixed by Proclamation.
(3) However, if a provision of this Act does not commence under
subsection (2) within the period of 6 months beginning on the day on which
this Act receives the Royal Assent, it commences on the first day after the end
of that period.
(1) This Act binds the Crown in each of its capacities.
(2) However, nothing in this Act makes the Crown in any capacity liable to
be prosecuted for an offence.
The Criminal Code applies to all offences against this
Act.
In this Act, unless the contrary intention appears:
accepted student of a registered provider means a student
(whether within or outside Australia):
(a) who is accepted for enrolment, or enrolled, in a course provided by
the provider; and
(b) who is, or will be, required to hold a student visa to undertake or
continue the course.
agent of a provider means a person (whether within or outside
Australia) who represents or acts on behalf of the provider, or purports to do
so, in dealing with overseas students or intending overseas students.
annual Fund contribution means an annual contribution that a
provider is required to pay to the Fund Manager under subparagraph 9(2)(b)(i) or
subsection 24(1).
annual registration charge means the annual registration
charge imposed under the Education Services for Overseas Students
(Registration Charges) Act 1997.
approved provider for a course for a State means a provider
approved by the designated authority for the State to provide that course in the
State to overseas students, other than an approval that has been withdrawn by
that authority.
associate of a person has the meaning given by
section 6.
attendance notice means a notice given under
section 116.
authorised employee means a person who:
(a) is authorised in writing by the Secretary to exercise powers under
Part 7; and
(b) is an employee of the Department; and
(c) holds the classification of APS 5 or higher, or an equivalent
classification.
contributions criteria means the criteria determined under
section 59 for working out how much annual Fund contribution each provider
must pay.
course means a course of education or training.
course money has the meaning given by
section 7.
designated authority for a State means the person responsible
under the law of the State for approving providers to provide courses to
overseas students in the State.
document includes a copy of a document.
evidential material means either of the following:
(a) a thing that there are reasonable grounds for suspecting will afford
evidence as to the commission or suspected commission of an offence against this
Act;
(b) a thing that there are reasonable grounds for suspecting is intended
to be used for the purpose of committing any such offence.
Fund means the ESOS Assurance Fund established under
section 45.
Fund Manager means the Fund Manager appointed under
section 49.
Immigration Minister means any of the Ministers who
administer the Migration Act 1958 from time to time.
Immigration Minister’s suspension certificate means a
certificate given under Division 2 of Part 6.
initial registration charge means the initial registration
charge imposed under the Education Services for Overseas Students
(Registration Charges) Act 1997.
intending overseas student means a person (whether within or
outside Australia) who intends to become, or who has taken any steps towards
becoming, an overseas student.
late payment penalty means the penalty imposed by
section 172.
monitoring purpose means a purpose of determining:
(a) whether a registered provider is complying or has complied with the
requirements of this Act or the national code; or
(b) whether, because of financial difficulty or any other reason, the
provider might not be able to:
(i) provide courses to its accepted students; or
(ii) refund course money to its accepted students.
monitoring warrant means a warrant issued under
section 138 or subsection 165(2).
national code means the code established under Part 4,
as amended from time to time.
occupier:
(a) in relation to premises comprising a vehicle or vessel—means the
person apparently in charge of the vehicle or vessel; and
(b) in any case—includes a person who apparently represents the
occupier.
old ESOS Act means the Education Services for Overseas
Students (Registration of Providers and Financial Regulation) Act
1991.
overseas student means a person (whether within or outside
Australia) who holds a student visa, but does not include students of a kind
prescribed in the regulations.
Panel means the Contributions Review Panel established under
section 54.
premises means:
(a) an area of land or any other place, whether or not it is enclosed or
built on; or
(b) a building or other structure; or
(c) a vehicle or vessel;
and includes a part of any such premises.
principal executive officer of a provider that is not an
individual means the person who has executive responsibility for the operation
of the provider.
production notice means a notice given under
section 113.
provide a course includes participate in providing the
course.
provider means an institution or other body or person in
Australia that provides or seeks to provide courses to overseas
students.
Register means the Register kept under
section 10.
registered means registered under Part 2.
registered provider for a course for a State means an
approved provider that is registered as a provider for the course for the
State.
reinstatement fee means the fee imposed by
section 171.
resident means:
(a) in the case of a company, a company incorporated in Australia that
carries on business in Australia and that has its central management and control
in Australia; or
(b) in the case of an unincorporated body, a body that carries on business
in Australia and that has its central management and control in
Australia.
search warrant means a warrant issued under section 144
or subsection 165(3).
Secretary means the Secretary of the Department.
special levy means a levy that is required to be paid to the
Fund Manager under section 72.
State includes the Australian Capital Territory and the
Northern Territory.
student visa has the meaning given by the
regulations.
this Act includes the regulations.
tribunal member means a member of the Administrative Appeals
Tribunal.
tuition assurance scheme means a scheme whose main objects
include ensuring that overseas students receive the course they have paid
for.
(1) In this Act:
associate of a person means:
(a) the spouse or de facto spouse of the person; or
(b) a child of the person, or of the person’s spouse or de facto
spouse; or
(c) a parent of the person, or of the person’s spouse or de facto
spouse; or
(d) a sibling of the person; or
(e) if the person is a company:
(i) an officer of the company; or
(ii) an officer of a company that is related to the first-mentioned
company; or
(iii) a person who holds a substantial ownership interest in the company;
or
(f) if the person is an association or a co-operative—the principal
executive officer or a member of the body (however described) that governs,
manages, or conducts the affairs of the association or co-operative;
or
(g) if the person is a body corporate established for a public purpose by
or under an Australian law and another body is responsible for the management or
the conduct of the affairs of the body corporate—the principal executive
officer or a member of that other body; or
(h) if the person is any other kind of body corporate established for a
public purpose by or under an Australian law—the principal executive
officer or a member of the body corporate; or
(i) if the person is a partnership:
(i) the principal executive officer or an individual, or a body corporate,
that is a member of the partnership; or
(ii) an individual who is an officer of a company, or a member of any
other body corporate, that is a member of the partnership.
Related companies
(2) For the purposes of subsection (1), the question of whether
companies are related to each other is to be determined in the
same manner as the question of whether bodies corporate (within the meaning of
the Corporations Law) are related to each other is determined under
section 50 of the Corporations Law.
Substantial ownership interest
(3) For the purposes of subsection (1), a person holds a
substantial ownership interest in a company if the total of all
amounts paid on the shares in the company in which the person holds interests
equals or exceeds 15% of the total of all amounts paid on all shares in the
company.
Interests in shares
(4) For the purposes of subsection (3):
(a) a person holds an interest in a share if the person has
any legal or equitable interest in the share; and
(b) without limiting the generality of paragraph (a), a person
holds an interest in a share if the person, although not the
registered holder of the share, is entitled to exercise, or control the exercise
of, a right attached to the share, otherwise than because the person has been
appointed as a proxy or representative to vote at a meeting of members of a
company or of a class of its members.
Mutual associates
(5) If, under this section, one person is an associate of a second person,
then the second person is an associate of the first
person.
Chains of associates
(6) If, under this section:
(a) one person is an associate of a second person (including because of a
previous application of this subsection); and
(b) the second person is an associate of a third person;
then the first person is an associate of the third
person.
Providers included
(7) In this section:
person includes a provider.
(1) In this Act:
course money means money a provider receives, directly or
indirectly, from:
(a) an overseas student or intending overseas student; or
(b) another person who pays the money on behalf of an overseas student or
intending overseas student;
for a course that the provider is providing, or offering to provide, to the
student.
(2) For the purposes of subsection (1), money received for a
course includes:
(a) tuition fees; and
(b) any amount received by the provider that the provider is to pay, on
behalf of the student, to a registered health benefits organization (within the
meaning of the
National
Health Act 1953); and
(c) any other amount that the student had to pay the provider, directly or
indirectly, in order to undertake the course.
(1) A person is guilty of an offence if the person:
(a) provides a course in a State to an overseas student; or
(b) makes an offer to an overseas student or an intending overseas student
to provide a course in a State to that student; or
(c) invites an overseas student or intending overseas student to
undertake, or to apply to undertake, a course in a State; or
(d) holds himself, herself or itself out as able or willing to provide a
course in a State to overseas students;
unless:
(e) the person is registered to provide the course for that State;
or
(f) the person does so in accordance with an arrangement that the person
has with a registered provider for the course for that State.
Maximum penalty: Imprisonment for 2 years.
Note 1: This means that, if 2 or more providers jointly
provide a course in a State, then only one of the providers needs to be
registered.
Note 2: However, a provider of a course who is not
registered must identify the registered provider in any written material
promoting the course (see section 107) and must not engage in misleading or
deceptive conduct in relation to the course (see subsection
83(2)).
Note 3: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(2) The prosecution bears a legal burden in relation to the matter in
paragraph (1)(e) (despite subsection 13.3(3) of the Criminal
Code).
Note: A defendant bears an evidential burden in relation to
the matter in paragraph (1)(f): see subsection 13.3(3) of the Criminal
Code.
Defence: surveys etc. to assess demand for a course
(3) A person does not commit an offence under paragraph (1)(d)
if:
(a) the relevant conduct was only for either or both of the following
purposes:
(i) carrying out surveys or other investigations to assess the demand for
the course; or
(ii) negotiating with another institution or other body or person in
connection with designing or developing the course; and
(b) the person took reasonable steps to ensure that:
(i) overseas students and intending overseas students who were, or might
become, interested in undertaking the course; and
(ii) any institution or other body or person who might also provide the
course;
were aware that:
(iii) the person was not a registered provider for the course for the
State; and
(iv) the relevant conduct was not carried out in accordance with an
arrangement that the person had with a registered provider for the course for
that State; and
(c) the person neither invited nor accepted any amount for the course from
overseas students or intending overseas students, or from the students’
agents.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (3): see subsection 13.3(3) of the Criminal
Code.
(1) A designated authority for a State may recommend that an approved
provider for that State be registered under this Act to provide a specified
course in that State to overseas students.
(2) The Secretary must register the provider if:
(a) the provider is a resident of Australia; and
(b) either:
(i) the provider has paid its first annual Fund contribution (see
Part 5); or
(ii) the provider is exempt under the regulations from paying annual Fund
contributions; and
(c) the designated authority has given the Secretary a certificate that
the provider complies with the national code; and
(d) the Secretary has no reason to believe that the provider is not
complying, or will not comply, with this Act or the national code; and
Note: The Minister must notify the relevant designated
authority if the Secretary has reason to believe that the provider is not
complying, or will not comply, with the national code: see
section 14.
(e) the provider is not liable for an annual registration charge,
reinstatement fee or late payment penalty that remains unpaid after it became
due for payment.
(3) The Secretary must not register the provider in any other
circumstances.
(4) Nothing in subsection (2) creates a duty for the Secretary to
seek any information about the matters mentioned.
(1) The Secretary must cause a Register to be kept for the purposes of
this Act.
(2) The Register is called the Commonwealth Register of Institutions and
Courses for Overseas Students.
(3) The Secretary may cause the contents of the Register to be made
available to the public by electronic or other means.
(4) The Secretary must cause the following information, and only that
information, to be entered on the Register:
(a) the name of each approved provider registered to provide a specified
course in a specified State;
(b) if the provider is not an individual—the name of the principal
executive officer of the provider;
(c) a number allocated to the provider for the purposes of the
Register;
(d) any other matters prescribed by the regulations.
(5) An approved provider is registered when the Secretary has entered the
name of the provider, the course and the State on the Register.
(1) Before a designated authority recommends an approved provider for
registration, the provider must tell the Secretary and the authority if the
provider or an associate of the provider:
(a) has been convicted of an offence under this Act or the old ESOS Act at
any time during the last 5 years; or
(b) has ever had his, her or its registration cancelled or suspended under
this Act or the old ESOS Act; or
(c) has ever had an Immigration Minister’s suspension certificate
issued in respect of him, her or it under this Act; or
(d) has ever had a condition imposed on his, her or its registration under
this Act; or
(e) was involved in the provision of a course by another provider who is
covered by paragraph (a), (b), (c) or (d) at the time of any of the events
that gave rise to the relevant prosecution or other action.
Note: If an approved provider breaches this section and
later becomes registered, the Minister may take action under Division 1 of
Part 6 against the provider: see section 85.
No effect on Part VIIC of the Crimes Act
(2) Nothing in subsection (1) affects the operation of Part VIIC
of the Crimes Act 1914 (which, in certain cases, relieves persons from
any requirement to disclose spent convictions).
(1) A registered provider who is liable to pay an initial registration
charge for a registration must pay the charge by the day specified in a written
notice that the Secretary gives the provider.
Note: An approved provider is liable to pay an initial
registration charge upon becoming registered: see section 6 of the
Education Services for Overseas Students (Registration Charges) Act
1997.
(2) The day specified in the notice must be at least 28 days after the day
the notice is given.
(1) At any time before an intending registered provider becomes
registered, the Fund Manager may request the provider to give the Fund Manager
information that is relevant to determining the provider’s amount of
annual Fund contribution.
Note: The Minister may take action under Division 1 of
Part 6 against a registered provider that has breached this section. A
person could also be guilty of an offence if the person provides false or
misleading information in complying or purporting to comply with this section:
see section 108.
(2) The Fund Manager does not have to determine the amount of the
provider’s annual Fund contribution under section 58 until the
provider complies with the request.
(1) This section applies if:
(a) the Minister has reason to believe that an approved provider who is
not yet registered is not complying, or will not comply, with this Act or the
national code; and
(b) the source of the information is not the designated authority that
recommended the approved provider for registration.
(2) The Minister must give the information to the designated authority
that recommended the provider for registration.
(3) Before deciding whether the provider should be registered, the
Minister must allow the designated authority at least 7 days to respond in
writing to the information.
A registered provider must not engage in misleading or deceptive conduct
in connection with:
(a) the recruitment of overseas students or intending overseas students;
or
(b) the provision of courses to overseas students.
Note: The Minister may take action under Division 1 of
Part 6 against a registered provider that has breached this
section.
A registered provider must be a resident of Australia.
Note: The Minister may take action under Division 1 of
Part 6 against a registered provider that has breached this
section.
(1) A registered provider must tell the Secretary as soon as practicable
if the provider becomes aware that an associate of the provider:
(a) has been convicted of an offence under this Act or the old ESOS Act at
any time during the last 5 years; or
(b) has ever had the associate’s registration cancelled or suspended
under this Act or the old ESOS Act; or
(c) has ever had an Immigration Minister’s suspension certificate
issued in respect of the associate; or
(d) has ever had a condition imposed on the associate’s registration
under this Act; or
(e) was involved in the provision of a course by another provider who is
covered by paragraph (a), (b), (c) or (d) at the time of any of the events
that gave rise to the relevant prosecution or other action.
Note: The Minister may take action under Division 1 of
Part 6 against a registered provider that has breached this
section.
No effect on Part VIIC of the Crimes Act
(2) Nothing in subsection (1) affects the operation of Part VIIC
of the Crimes Act 1914 (which, in certain cases, relieves persons from
any requirement to disclose spent convictions).
If a registered provider for a course enters into an arrangement with one
or more other providers to provide the course jointly, the arrangement must be
such that the students pay their course money to the registered provider and not
directly to the other providers.
Note: The Minister may take action under Division 1 of
Part 6 against a registered provider that has breached this
section.
(1) A registered provider must give the Secretary the following
information within 14 days after the event specified below occurs:
(a) the name and any other prescribed details of each person who becomes
an accepted student of that provider;
(b) for each person who becomes an accepted student—the name,
starting day and expected duration of the course for which the student is
accepted;
(c) the prescribed information about an accepted student who does not
begin his or her course when expected;
(d) any termination of studies by an accepted student before the
student’s course is completed;
(e) any change in the identity or duration of an accepted student’s
course;
(f) any other prescribed matter relating to accepted students.
(2) A registered provider must give the Secretary particulars of any
breach by an accepted student of a student visa condition relating to attendance
or satisfactory academic performance as soon as practicable after the breach
occurs.
(3) Information required under this section must be given in a form
approved by the Secretary. The approved form may be electronic.
Note 1: The Minister may take action under Division 1
of Part 6 against a registered provider that has breached this section. A
breach of this section is also an offence: see
section 104.
Note 2: It is an offence to provide false or misleading
information in complying or purporting to comply with this section: see
section 108.
Unincorporated registered providers
(4) If the registered provider is an unincorporated body, then it is
instead the principal executive officer of the provider who must give the
Secretary the information as required under this section.
(1) A registered provider must send an accepted student of the provider a
written notice if the student has breached a student visa condition relating to
attendance or satisfactory academic performance.
Note 1: The Minister may take action under Division 1
of Part 6 against a registered provider that has breached this section. A
breach of this section is also an offence: see
section 104.
Note 2: It is an offence to provide false or misleading
information in complying or purporting to comply with this section: see
section 108.
(2) The registered provider must send the notice as soon as practicable
after the breach.
(3) The notice must be in a form approved by the Secretary of the
Immigration Minister’s Department.
(4) The notice must:
(a) contain particulars of the breach; and
(b) state that the student is required to attend in person before an
officer (within the meaning of the Migration Act 1958) at a specified
place within 28 days after the day specified in the notice as the date of the
notice, for the purpose of explaining the breach; and
(c) state that the student must present photographic identification when
so attending; and
(d) set out the effect of sections #137J and #137K of that Act.
Unincorporated registered providers
(5) If the registered provider is an unincorporated body, then it is
instead the principal executive officer of the provider who must send the notice
as required under this section.
(1) A registered provider must keep records of each accepted student who
is enrolled with the provider or who has paid any course money for a course
provided by the provider.
(2) The records must consist of each accepted student’s current
residential address and any other details prescribed by the
regulations.
(3) The provider must retain the records for at least 2 years after the
person ceases to be an accepted student. However, the records do not need to be
kept up to date after the cessation.
Note: The Minister may take action under Division 1 of
Part 6 against a registered provider that has breached this section. A
breach of this section is also an offence: see
section 105.
Unincorporated registered providers
(4) If the registered provider is an unincorporated body, then it is
instead the principal executive officer who must keep and retain the records as
required under this section.
(1) A registered provider must at all times:
(a) be a member of a tuition assurance scheme established in accordance
with the regulations; and
(b) comply with the rules of the scheme.
Note: The Minister may take action under Division 1 of
Part 6 against a registered provider that has breached this
section.
(2) A registered provider who is not a member of a tuition assurance
scheme breaches subsection (1) even if the reason for not being a member is
that:
(a) the provider’s application for membership was rejected;
or
(b) the provider’s membership of a scheme has been
cancelled.
(3) The regulations may exempt providers from the requirements of this
section.
A registered provider who is liable to pay an annual registration charge
for a year must pay the charge by the last business day of February of the
year.
Note 1: A registered provider is liable for an annual
registration charge: see section 5 of the Education Services for
Overseas Students (Registration Charges) Act 1997.
Note 2: The Minister may take action under Division 1
of Part 6 against a registered provider that has breached this
section.
(1) A registered provider must pay an annual Fund contribution for each
calendar year.
Note: Part 5 has the details about how amounts of
contribution are determined and about the Fund generally.
(2) However, the regulations may exempt a registered provider from the
requirement to pay annual Fund contributions.
(3) A registered provider who is required to pay an amount of annual Fund
contribution for a calendar year must pay it to the Fund Manager by the day
stated in the notice that the Fund Manager gives the provider under
Part 5.
Note: The Minister may take action under Division 1 of
Part 6 against a registered provider that has breached this
section.
A registered provider who is required to pay an amount of special levy
under section 72 must pay it to the Fund Manager by the day stated in the
notice that the Fund Manager gives the provider under that section.
Note: The Minister may take action under Division 1 of
Part 6 against a registered provider that has breached this
section.
(1) A registered provider who is required to pay an annual Fund
contribution for a year must tell the Fund Manager as soon as practicable of any
matter that might cause the Fund Manager to increase the amount of contribution
the provider would be required to pay for that or a later year.
(2) The obligation in subsection (1) continues to apply even after
the registered provider has paid its annual Fund contribution for the
year.
Fund Manager may request information
(3) At any time, the Fund Manager may request a registered provider to
give the Fund Manager information that is relevant to determining the
provider’s amount of contribution. The provider must comply with the
request.
Note 1: The Minister may take action under Division 1
of Part 6 against a registered provider that has breached this section. A
breach of this section is also an offence: see
section 104.
Note 2: It is an offence to provide false or misleading
information in complying or purporting to comply with this section: see
section 108.
Provider default
(1) This Division applies to an overseas student or an intending overseas
student in relation to a course if:
(a) the course does not start on the agreed starting day; or
(b) the course ceases to be provided at any time after it starts but
before it is completed; or
(c) the course is not provided in full to the student because a sanction
has been imposed on the registered provider under Part 6;
and the student has not withdrawn before the default day.
Student default
(2) This Division also applies to an overseas student or an intending
overseas student in relation to a course if:
(a) the course starts on the agreed starting day, but the student does not
start the course on that day (and has not previously withdrawn); or
(b) the student withdraws from the course (either before or after the
agreed starting day).
(3) In this Division:
agreed starting day means the day on which the course was
scheduled to start, or a later day agreed between the registered provider for
the course and the student.
default day means:
(a) the agreed starting day, if paragraph (1)(a) or (2)(a) applies;
or
(b) the day on which the course ceased to be provided, if
paragraph (1)(b) or (c) applies; or
(c) the day on which the student withdraws from the course, if
paragraph (2)(b) applies.
(1) This section applies in a situation covered by subsection 27(2)
if:
(a) the registered provider (or former registered provider) for the course
and the student have a written agreement setting out the refund requirements
that apply in that situation; and
(b) the agreement meets all of the requirements set out in the national
code (if any).
(2) The provider must pay the student the amount (if any) required by the
agreement.
(3) The provider must pay that amount within 4 weeks after receiving a
written claim from the student.
Note: The Minister may take action under Division 1 of
Part 6 against a registered provider that has breached this
section.
(1) Unless section 28 applies, the registered provider (or former
registered provider) for the course must pay the student:
(a) the total of the course money the provider received in respect of the
student before the default day; less
(b) the total of the prescribed amounts relating to expenses the provider
incurred for the student for the course before the default day.
(A negative result is treated as nil).
(2) For the purposes of paragraph (1)(b), the regulations may
prescribe different amounts (including nil amounts) for students in different
circumstances.
(3) In a subsection 27(1) case, the provider must pay the amount within 2
weeks after the default day.
(4) In a subsection 27(2) case, the provider must pay the amount within 4
weeks after the default day.
Note: The Minister may take action under Division 1 of
Part 6 against a registered provider that has breached this
section.
(1) The student is entitled to recover the amount owing under this
Division as a debt by action in a court of competent jurisdiction.
(2) This Division does not affect any liability that a provider has apart
from this Division to pay an additional amount to the student.
(1) As an alternative to making a payment required by this Division, the
registered provider (or former registered provider) may arrange for another
course, or part of a course, to be provided to the student at the
provider’s expense.
(2) If the student agrees to accept the alternative arrangement, the
provider is relieved of its liability to make the payment.
A registered provider that fails to comply, or becomes aware that it will
not be able to comply, with its obligations under this Division must tell the
Fund Manager of this as soon as practicable.
Note: The Minister may take action under Division 1 of
Part 6 against a registered provider that has breached this
section.
(1) The Minister must establish a national code before 2 April
2001.
(2) The code is to be called the National Code of Practice for
Registration Authorities and Providers of Education and Training to Overseas
Students.
The purpose of the national code is to provide nationally consistent
standards for the registration and conduct of registered providers.
The Secretary must make the text of the national code available to the
public by electronic or other means.
(1) Each State Minister who is responsible for education may nominate a
person for the purpose of consultations with that State about the national
code.
(2) Before establishing the national code, the Commonwealth Minister must
consult each such nominee.
(3) At any time, a State Minister may withdraw a nomination and substitute
a different person.
(1) The national code is established by the Minister publishing a notice
to this effect in the Gazette.
(2) The notice must say:
(a) how the public can get access to the text of the national code;
and
(b) when the national code takes effect.
The national code must contain some or all of the following:
(a) standards and procedures to be applied by a designated authority in
determining whether to recommend that an approved provider be
registered;
(b) standards and procedures required of registered providers in providing
courses to overseas students;
(c) standards and procedures required of a designated authority in
monitoring registered providers’ compliance with, and investigating
possible breaches of, the national code;
(d) standards required of registered providers in connection with their
dealings with their agents;
(e) standards required of a registered provider of a course in connection
with the provider’s dealings with other providers of the course;
(f) rules about the kind of connection required of a provider with a
course in order for the provider to be registered;
(g) standards and procedures required of registered providers in making
agreements relating to refunds of course money;
(h) standards required of the content of such agreements;
(i) any other matters that are necessary or convenient to give effect to
the purpose of the national code.
The national code must state the day on which it takes effect. The day
must be at least 28 days after the national code is established.
The only legal effects of the national code are the effects that this Act
expressly provides for.
Note: This Act provides that compliance with the national
code is a prerequisite for registration (see section 9) and that sanctions
under Division 1 of Part 6 may be imposed on a registered
provider who breaches the national code.
On the other hand, a student cannot bring an action against
a registered provider for not complying with the code as this Act does not
provide for any such action.
(1) Before the national code is established, the Secretary must give each
registered provider a written notice of:
(a) the establishment of the national code; and
(b) the day on which the national code takes effect for existing
registered providers; and
(c) how the provider can get access to the text of the national
code.
(2) After the national code is established, whenever the Secretary
registers an approved provider under section 9, the Secretary must notify
the provider of:
(a) the establishment of the national code; and
(b) if the national code has not yet taken effect—the day on which
the national code takes effect for that provider; and
(c) how the provider can get access to the text of the national
code.
(3) However, a breach of this section does not affect the validity of the
national code.
(1) The Minister may amend the national code.
Consulting with States
(2) Before amending the national code, the Minister must consult each
person who has been nominated under section 36.
Gazette notice
(3) The national code is amended by the Minister publishing a notice about
the amendment in the Gazette.
(4) The notice must set out:
(a) the day on which the amendment takes effect; and
(b) how the public can get access to the text of the amendment and the
amended code.
The day on which the amendment takes effect must be at least 28 days after
the date of the notice.
Secretary must give written notice
(5) The Secretary must give each registered provider a written notice
stating:
(a) the day on which the amendment takes effect; and
(b) how the public can get access to the text of the amendment and the
amended code.
(6) However, a breach of subsection (5) does not affect the validity
of the amendment.
(1) This section applies if:
(a) the Secretary has information suggesting a possible breach of the
national code by a registered provider for a State; and
(b) the source of the information is not the designated authority of that
State.
(2) Before the Secretary investigates the matter further or takes any
other action under this Act, the Secretary must notify the designated authority
of the possible breach and request the authority to investigate the matter or
take any other suitable action.
(3) However, the Secretary may investigate the matter or take any other
action:
(a) without notifying the designated authority; or
(b) without waiting for the designated authority to investigate or take
any other action;
if, in the Secretary’s opinion, the circumstances of the possible
breach require urgent action.
(1) The regulations may make it an offence to breach prescribed provisions
of the national code.
(2) The offence must be punishable by a fine of no more than 10 penalty
units.
The ESOS Assurance Fund is established by this section.
The purpose of the Fund is to protect the interests of overseas students
and intending overseas students of registered providers by ensuring that the
students are provided with suitable alternative courses, or have their course
money refunded, if the provider cannot provide the courses that the students
have paid for.
(1) The following amounts must be credited to the Fund:
(a) all amounts of annual Fund contributions received from providers (see
Subdivision A of Division 4);
(b) all amounts of special levy received from registered providers (see
Subdivision C of Division 4);
(c) all amounts recovered from providers under section 78;
(d) the proceeds from any investments made using Fund money under
section 79;
(e) any money the Fund Manager borrows for the Fund;
(f) any other money appropriated by the Parliament for the purpose of the
Fund;
(g) any late payment penalty or review fees received by the Fund
Manager;
(h) any other amount given to the Fund.
CRF appropriation
(2) Whenever an amount of annual Fund contribution or special levy is
received, then to the extent that section 81 of the Constitution applies to
the receipt, the Consolidated Revenue Fund is appropriated by that amount for
the purpose of the Fund.
Amounts held on trust
(1) Amounts standing to the credit of the Fund must be held by the Fund
Manager on trust for the benefit of overseas students and intending overseas
students of registered providers, for the purpose of the Fund.
Expenditure of amounts
(2) Those amounts must only be expended for the following
purposes:
(a) in making payments as a result of calls being made on the Fund under
Division 5;
(b) in paying premiums for insurance of the Fund;
(c) in making investments under section 79;
(d) in repaying loans, and interest on loans, of the Fund;
(e) in meeting expenses incurred in managing and administering the Fund,
including the Fund Manager’s fees and expenses;
(f) in refunding amounts of overpaid annual Fund contribution or special
levy.
(1) The Secretary must, by writing, appoint a Fund Manager.
(2) The Fund Manager may be an individual or a company.
(1) The functions of the Fund Manager are as follows:
(a) to hold the money standing to the credit of the Fund on trust for the
benefit of overseas students and intending overseas students of registered
providers, for the purpose of the Fund;
(b) to manage the Fund in a way that ensures it is able to meet all its
liabilities from time to time;
(c) to propose to the Panel the criteria for determining the amounts of
annual Fund contributions for providers;
(d) to determine the amounts of annual Fund contributions for providers,
in accordance with those criteria;
(e) to collect annual Fund contributions and special levies from
providers;
(f) to arrange alternative courses for students, and to make payments from
the Fund, when required to do so under this Part;
(g) any other functions that this Act confers on the Fund
Manager.
(2) The Fund Manager has power to do all things necessary and convenient
for or in connection with performing its functions.
The terms and conditions of the Fund Manager’s appointment
(including the duration of the appointment) are to be as agreed in writing by
the Secretary and the Fund Manager.
(1) The Secretary may appoint a person to act as the Fund
Manager:
(a) if there is a vacancy in the office of the Fund Manager, whether or
not an appointment has previously been made to the office; or
(b) during any period, or during all periods, when the Fund Manager is
absent from duty or from Australia or is, for any reason, unable to perform the
duties of the office.
(2) Anything done by or in relation to a person purporting to act under
this section is not invalid merely because:
(a) the occasion for the appointment had not arisen; or
(b) there was a defect or irregularity in connection with the appointment;
or
(c) the appointment had ceased to have effect; or
(d) the occasion to act had not arisen or had ceased.
(1) The Fund Manager is not personally subject to any liability to any
person (other than the Commonwealth) in respect of anything done, or omitted to
be done, in good faith in the exercise or performance of powers or functions
under this Act.
(2) However, this section does not affect the operation of the Privacy
Act 1988.
(1) The Contributions Review Panel is established.
Membership of the Panel
(2) The Panel consists of 10 people appointed by the Minister.
(3) One of the people appointed must be appointed as the Chair of the
Panel.
(4) All of the members must have qualifications and experience that the
Minister considers to be relevant to the performance of the Panel’s
functions.
(5) At least 5 of the members must be people who, in the Minister’s
opinion, represent the interests of providers.
Regulations about membership
(6) The regulations may prescribe different numbers of members for the
purposes of subsections (2) and (5) but only:
(a) after the initial appointment of the Panel is complete; and
(b) after the Minister has consulted representatives of providers about
the proposed regulations.
(7) Such regulations apply only in relation to appointments made after the
regulations take effect. They do not affect:
(a) the validity of the composition of the Panel as at the time when the
regulations take effect; or
(b) the tenure of a person who is a member of the Panel when the
regulations take effect.
(1) The functions of the Panel are:
(a) to determine the contributions criteria; and
(b) to hear and determine appeals by providers against determinations of
their contributions.
(2) The Panel has power to do all things necessary and convenient for or
in connection with performing its functions.
(3) The performance of the functions or the exercise of the powers of the
Panel is not affected merely because there is a vacancy or vacancies in the
membership of the Panel.
(1) Each member of the Panel is to be appointed on a part-time
basis.
(2) The remuneration and allowances and the other terms and conditions of
each member’s appointment (including the duration of appointment) are to
be as agreed in writing by the Minister and the member.
(1) In any vote of the Panel, the Chair has a deliberative vote and, if
the votes are equal, has a casting vote.
(2) Otherwise, the regulations may provide for the procedures of the
Panel.
(3) Subject to those regulations and subsection (1), the Panel may
determine its own procedures.
Procedures relating to Panel review of contributions
(4) The procedures determined under this section may allow for
applications for review made under section 68 to be heard and determined by
one or more members of the Panel instead of by the Panel as a
whole.
(1) For each calendar year, the Fund Manager must determine the amount of
annual Fund contribution required from each provider who is required to pay a
contribution.
Note: The regulations may exempt some providers from the
requirement to pay an annual Fund contribution: see
section 24.
(2) In doing so, the Fund Manager must apply the contributions criteria
determined under this Division.
Fund Manager to give draft contributions criteria
(1) The Fund Manager must give the Panel a set of draft contributions
criteria.
(2) The Panel must either accept the draft without alteration or ask the
Fund Manager to revise it.
Accepting the draft without alteration
(3) If the Panel accepts the draft without alteration, then the
contributions criteria are as set out in the draft.
Revision of draft
(4) If the Panel asks the Fund Manager to revise the draft, the Fund
Manager must do so and give the revised draft to the Panel. The Panel must deal
with the revised draft in the same way as an original draft.
Panel may ultimately determine the contributions criteria
(5) If, after considering any revised draft or drafts, the Panel concludes
that the Fund Manager will not be able to propose a draft that is acceptable to
the Panel, the Panel may determine the contributions criteria itself.
(1) The contributions criteria:
(a) must be determined having regard solely to the purpose of the Fund;
and
(b) must enable the amount of contribution for each provider to reflect,
at least to some extent, the risk of calls being made on the Fund in respect of
that provider.
Tuition assurance schemes
(2) One of the contributions criteria must be whether the provider in
question is a member of a tuition assurance scheme.
Security over assets
(3) The contributions criteria may allow for a reduction of a
provider’s contribution if the provider agrees to the Fund Manager taking
a charge or other security over an asset or assets of the provider.
(1) The Panel may ask the Fund Manager to draft, and give to the Panel,
changes to the contributions criteria. The Fund Manager must comply with the
request.
(2) Alternatively, the Fund Manager may give the Panel draft changes on
its own initiative.
(3) Either way, the contributions criteria must not be changed more than
once each year.
(4) The procedure for dealing with the draft changes is the same as that
for dealing with draft contributions criteria under section 59.
(5) The changed contributions criteria must still meet the requirements in
section 60.
(6) In this section:
change includes add to, revoke or substitute.
When contributions criteria, or changed contributions criteria, have been
determined, the Fund Manager must make them publicly available.
(1) The Fund Manager must give a written notice to each provider who is
liable to pay an annual Fund contribution stating:
(a) the provider’s amount of contribution; and
(b) if the provider is registered—the day by which the provider must
pay the contribution.
Note 1: There is no particular due day for unregistered
providers, but they cannot get registered until they have paid their
contribution: see paragraph 9(2)(b).
Note 2: The provider may seek a review of the amount of
annual Fund contribution from the Fund Manager and then the Panel: see
sections 66 and 68.
(2) The day mentioned in paragraph (1)(b) must be at least 14 days
after the notice is given to the registered provider.
The Fund manager must notify the Secretary when a provider who is not yet
registered has paid its first annual Fund contribution.
Note: The Secretary needs to know when this has happened so
that the provider can be registered: see paragraph 9(2)(b).
(1) This section applies if, at any time after having given a notice to a
provider under section 63, the Fund Manager decides, on the basis of new
information, that the provider’s required contribution for the year should
be increased.
(2) The Fund Manager must give another written notice to the provider
stating:
(a) its new amount of annual Fund contribution; and
(b) if the provider is registered—the day by which the provider must
pay the outstanding amount of the contribution.
Note: There is no particular due day for unregistered
providers, but they cannot get registered until they have paid their
contribution: see paragraph 9(2)(b).
(3) The day mentioned in paragraph (2)(b) must be at least 14 days
after the notice is given to the registered provider.
(1) A provider may apply in writing to the Fund Manager for a review of
the determination of its amount of annual Fund contribution.
Provider may only challenge application of criteria
(2) The provider may only challenge the application of the contributions
criteria to the particular provider; not the contributions criteria
themselves.
Time limit for application
(3) The application must be made within 14 days after the provider is
given the notice under section 63 or 65, or such longer time as the Fund
Manager allows.
Provider must pay contribution on time
(4) A registered provider must still pay its annual Fund contribution on
time even if the provider has applied for a review under this section.
Note: There is no particular due day for unregistered
providers, but they cannot get registered until they have paid their
contribution: see paragraph 9(2)(b).
(1) On a review, the Fund Manager must either:
(a) dismiss the application; or
(b) substitute a different amount of annual Fund contribution for the
provider.
(2) The Fund Manager must give the provider written notice setting
out:
(a) the Fund Manager’s decision, including a statement of reasons;
and
(b) the provider’s new amount of annual Fund contribution, if it has
changed; and
(c) if the provider is registered—the day by which the provider must
pay any outstanding amount of the contribution.
Note: There is no particular due day for unregistered
providers, but they cannot get registered until they have paid their
contribution: see paragraph 9(2)(b).
(3) The day mentioned in paragraph (2)(c) must be at least 14 days
after the notice is given to the registered provider.
(1) If the provider is dissatisfied with the outcome of the review by the
Fund Manager, the provider may apply in writing to the Panel for a further
review of the determination of its amount of annual Fund contribution.
Grounds for challenging application
(2) The provider may only challenge the application of the contributions
criteria to the particular provider; not the contributions criteria
themselves.
Time limit on application
(3) The application must be made within 14 days after the notice is given
to the provider under section 67, or such longer time as the Panel
allows.
Provider must pay contribution on time
(4) A registered provider must still pay its annual Fund contribution on
time even if the provider has applied for a review under this section.
(1) On a review, the Panel must either:
(a) dismiss the application; or
(b) send the decision back to the Fund Manager with binding written
directions as to how the contributions criteria should be applied in the
particular circumstances.
Note: The application may be determined by one or more
members of the Panel, instead of by the Panel as a whole, if the Panel’s
procedures allow this: see subsection 57(3).
(2) The Panel must give the provider written notice of its decision,
including a statement of reasons.
(3) In a paragraph (1)(b) case, the Fund Manager must reconsider the
original decision in light of the directions and then give the provider a
written notice stating:
(a) its amount of annual Fund contribution; and
(b) if the provider is registered—the day by which the provider must
pay any outstanding amount of the contribution.
Note: There is no particular due day for unregistered
providers, but they cannot get registered until they have paid their
contribution: see paragraph 9(2)(b).
(4) The day mentioned in paragraph (3)(b) must be at least 14 days
after the notice is given to the registered provider.
(1) The regulations may prescribe fees payable for an application for
review by the Fund Manager or the Panel.
(2) The fee is payable to:
(a) the Fund Manager, for a review by the Fund Manager; or
(b) the Secretary, for a review by the Panel.
(3) The fees must not amount to taxation.
If a review under this Subdivision results in a lower amount of annual
Fund contribution, then the Fund Manager must refund or remit the
difference.
If at any time the Fund Manager considers that the Fund does not have
enough money to meet its current or future liabilities, the Fund Manager may
require all registered providers who are liable to pay an annual Fund
contribution for that year to pay a special levy to the Fund
Manager.
The amount of each registered provider’s special levy must
correspond, so far as practicable, to the provider’s proportion of the
total of the annual Fund contributions required of registered providers for the
year.
Example: Assume that, as a registered provider, Anne was
required to pay an annual Fund contribution of $1,000, which represented 1% of
the total annual Fund contributions required from all registered providers for
the year. If the Fund Manager decided that special levies totalling $50,000 were
needed, Anne’s special levy would be $500 (1% of
$50,000).
(1) The Fund Manager must give a written notice to each registered
provider who is liable to pay an amount of special levy stating:
(a) the amount of the special levy; and
(b) the day by which the provider must pay the amount.
(2) The day mentioned in paragraph (1)(b) must be at least 14 days
after the notice is given to the registered provider.
(1) The Fund Manager must give a reminder notice to a registered provider
who has not paid an amount of annual Fund contribution or special levy by the
end of the due day.
(2) The reminder notice must:
(a) specify the amount that is still owing; and
(b) state that the registered provider must pay the amount, along with the
associated late payment penalty, by the end of the seventh day after the
reminder notice is given to the provider; and
(c) set out the effect of section 90.
Note: Section 90 provides that the provider’s
registration is automatically suspended if the provider does not comply with the
reminder notice.
(3) The Fund Manager must tell the Secretary if the registered provider
fails to comply with the reminder notice.
(1) A call is made on the Fund if the Fund Manager determines that, for an
overseas student or an intending overseas student in relation to a course
for which there is or was a registered provider:
(a) the provider is required to refund an amount to the student under
Division 2 of Part 3; and
(b) it appears that the provider will be unable to satisfy its obligations
to the student under that Division; and
(c) the student is not able to be placed promptly in a suitable
alternative course under a tuition assurance scheme or by any other
means.
(2) However, a call is not made on the Fund if the provider was exempt
under the regulations from making an annual Fund contribution to the Fund for
the year.
(1) If a call is made on the Fund, the Fund Manager must, as soon as
practicable:
(a) in consultation with the overseas student or intending overseas
student, place him or her in a course in Australia that the Fund Manager regards
as a suitable alternative course; or
(b) failing that—pay the student, out of the Fund, an amount equal
to the amount that the provider must still pay the student in order to satisfy
the refund requirements under Division 2 of Part 3.
(2) In placing a student in an alternative course, the Fund Manager may
spend more than the amount of that refund entitlement if the Fund Manager
considers that to do so would best promote the purpose of the Fund.
Cessation of student’s claim
(1) After the Fund Manager pays an amount under section 77 to or for
a student, the student ceases to have any claim against the provider in respect
of the student’s course money.
Provider must pay back Fund Manager
(2) Instead, the provider must pay the Fund Manager an amount equal to the
amount that the Fund Manager paid under section 77.
(3) The Fund Manager may recover that amount from the provider as a debt
due to the Commonwealth by action in a court of competent
jurisdiction.
Fund Manager may enforce security
(4) If the provider had granted the Fund Manager a charge or other
security over any of its assets, the Fund Manager may enforce the charge or
security in satisfaction, or partial satisfaction, of the debt.
The Fund Manager may invest money standing to the credit of the Fund that
is not immediately required for the purpose of the Fund:
(a) on deposit with an authorised deposit-taking institution (within the
meaning of the Banking Act 1959); or
(b) in securities of the Commonwealth or of a State; or
(c) in securities guaranteed by the Commonwealth or a State; or
(d) in any other manner that is consistent with sound commercial
practice.
Auditor to prepare written report
(1) As soon as practicable after the end of each calendar year, the Fund
Manager must arrange for an independent auditor to prepare a written report on
the financial state of the Fund.
(2) The auditor must be a person who:
(a) is registered, or is taken to be registered, as a company auditor
under Part 9.2 of the Corporations Law; or
(b) is a member of the Institute of Chartered Accountants in Australia,
the Australian Society of Certified Practising Accountants or any other body
prescribed for the purposes of subparagraph 1280(2)(a)(i) of the Corporations
Law; or
(c) is approved by the Secretary as an auditor for the purposes of this
section.
(3) The report must be given to the Minister.
Minister may require other reports
(4) The Minister may at any time give the Fund Manager a written notice
requiring the Fund Manager to arrange for other reports about the
Fund.
(5) The Minister must publish a copy of the notice in the
Gazette.
To avoid doubt, the Fund Manager does not have to pay income tax on
amounts of annual Fund contribution or special levy collected.
(1) If the Parliament passes an Act providing for the cessation of the
Fund, then any surplus money of the Fund at the time of the cessation must be
repaid to providers who were liable to pay an annual Fund contribution for the
year in which the cessation occurs.
(2) The regulations may provide for details of how those repayments are to
be worked out, and for other matters relating to such repayments.
(1) The Minister may take one or more of the actions listed in
subsection (3) against a registered provider if the Minister believes on
reasonable grounds that the registered provider or an associate of the
registered provider is breaching, or has breached, this Act, the national code
or a condition of the provider’s registration.
Note: Section 93 sets out the procedure for taking the
action.
(2) The Minister may also take one or more of those actions against a
registered provider for a course if the Minister believes on reasonable grounds
that a provider that is providing the course with the registered provider is
engaging, or has engaged, in misleading or deceptive conduct in connection
with:
(a) the recruitment of overseas students or intending overseas students to
the course; or
(b) the provision of the course to overseas students.
Note: Section 93 sets out the procedure for taking the
action.
(3) The actions are:
(a) to impose one or more conditions on the registered provider’s
registration for any one or more courses for any one or more States (see
section 86);
(b) to suspend the registered provider’s registration for all
courses for any one or more States (see section 95);
(c) to cancel the registered provider’s registration for all courses
for any one or more States.
The Minister may take action under section 83 even if he or she has
already taken other action under that section in relation to the same
matter.
The Minister may take action against a registered provider under
section 83 even if the provider was not yet registered at the time of the
relevant breach.
(1) Examples of the conditions that the Minister may impose under
section 83 are conditions that:
(a) there be no net increase, or only a limited net increase, in the
number of overseas students enrolled with the provider;
(b) the provider enrol only a limited number of new overseas
students;
(c) the provider not accept any new students from a specified
country;
(d) the provider not deal with a specified agent in relation to overseas
students or intending overseas students;
(e) the provider not provide a specified course.
(2) The examples do not limit the kinds of condition that the Minister may
impose.
The Minister may suspend the registration of a provider for a State if he
or she believes on reasonable grounds that because of financial difficulty or
any other reason the provider might not be able to:
(a) provide courses to its accepted students in that or any other State;
or
(b) refund course money to its accepted students.
Note 1: Section 93 sets out the procedure for taking
this action.
Note 2: Section 95 sets out the effect of
suspension.
The Minister may cancel the registration of a provider for a State if the
provider ceases to provide courses in the State to overseas students while the
provider’s registration for the State is suspended.
Note: Section 93 sets out the procedure for taking this
action.
(1) The registration of a provider for a course for a State is suspended
by force of this subsection if the designated authority for the State suspends
the approval of that course for the provider.
Note: Section 95 sets out the effect of
suspension.
(2) The Minister may remove the suspension after the State’s
suspension is removed.
Note: The registered provider must pay a reinstatement fee
for this: see section 171.
(1) The registration of a provider who fails to comply with a reminder
notice given under section 75 is suspended by force of this section for all
courses for all States.
(2) The Minister must remove the suspension when the provider has paid the
amount owing along with the associated late payment penalty.
Note: The registered provider must pay a reinstatement fee
for this: see section 171.
A provider’s registration for a course for a State is cancelled by
force of this section if the provider ceases to be an approved provider for that
course for that State.
The registration of a provider is cancelled for all courses for all
States by force of this section if:
(a) a provider who is an individual becomes bankrupt; or
(b) a winding-up order is made in respect of a provider that is a body
corporate.
(1) Before making a decision:
(a) to take action under Subdivision A or B of this Division; or
(b) not to remove a suspension under subsection 89(2);
the Minister must give the registered provider a written notice:
(c) stating that the Minister intends to make that decision and why;
and
(d) giving the provider:
(i) if Subdivision A applies—at least 24 hours; or
(ii) otherwise—at least 7 days;
to give the Minister written submissions about the matter.
(2) After considering any submission received within that period, if the
Minister still considers that he or she should make the decision, the Minister
may do so and must give the provider written notice of the decision.
The Minister may remove a condition on or suspension of a
provider’s registration at any time by giving the registered provider
written notice.
Note: A registered provider must pay a reinstatement fee for
this: see section 171.
(1) A provider whose registration is suspended for a State under this
Division must not:
(a) do any thing for the purpose of recruiting or enrolling overseas
students or intending overseas students for courses provided by the provider in
that State; or
(b) solicit or accept any money from an overseas student or an intending
overseas student for a course provided by the provider in that State;
or
(c) if an accepted student of the provider has not begun the
course—permit the student to begin the course.
(2) The provider is still registered for that State for all other
purposes.
(1) The Secretary must cause the Register to be altered appropriately
if:
(a) a provider’s registration is suspended or cancelled to any
extent; or
(b) a provider’s registration has a condition imposed on it;
or
(c) a provider’s registration has a suspension or condition
removed.
(2) However, a failure to do so does not affect the validity of the
relevant action.
(1) The Immigration Minister may give an Immigration Minister’s
suspension certificate to a registered provider if, in the Immigration
Minister’s opinion, a significant number of overseas students or intending
overseas students in respect of:
(a) the registered provider; or
(b) another provider that is an associate of the registered
provider;
are entering or remaining in Australia for purposes not contemplated by
their visas.
Matters that the Minister may consider
(2) In considering whether to give such a certificate, the Immigration
Minister may have regard to any of the following:
(a) the number of applications for student visas made by overseas students
and intending overseas students, in respect of the registered provider or
associate, that have been refused, where there were fraudulent statements made
or fraudulent documents given in connection with the application;
(b) the number of the registered provider’s or associate’s
accepted students who have breached conditions of their visas;
(c) the number of accepted students and former accepted students of the
registered provider or associate who remain in Australia unlawfully after
finishing their courses;
(d) any other matter set out in regulations made for the purposes of this
paragraph under the Migration Act 1958.
(3) Subsection (2) does not limit the matters to which the
Immigration Minister may have regard in considering whether to give a
certificate.
(4) For the purposes of paragraph (2)(a), it is immaterial whether or
not the fraudulent statements or documents were a reason for refusing the
application.
Power to be exercised personally
(5) The power to give an Immigration Minister’s suspension
certificate must be exercised by the Immigration Minister personally.
Written notice of intention to give certificate
(1) Before issuing the certificate, the Immigration Minister must give the
registered provider a written notice:
(a) stating that the Immigration Minister intends to give the provider an
Immigration Minister’s suspension certificate, and why; and
(b) giving the provider at least 7 days to give the Immigration Minister
written submissions about the matter.
(2) After considering any submission received within that period, the
Immigration Minister may give the registered provider the certificate if the
Immigration Minister still considers that he or she should do so.
Tabling certificate in Parliament
(3) The Immigration Minister must table a copy of the certificate in both
Houses of Parliament within 15 sitting days of giving it to the
provider.
Delegating function of giving written notice
(4) The Immigration Minister may, by signed writing, delegate to the
Secretary of his or her Department, or to an SES employee or acting SES employee
in that Department, the function of giving notices under
subsection (1).
An Immigration Minister’s suspension certificate must:
(a) state the day on which it takes effect; and
(b) set out why it has been given; and
(c) set out the effect of sections 100, 101 and 102.
(1) An Immigration Minister’s suspension certificate remains in
effect for the period of 6 months beginning on the day that it says it takes
effect.
(2) The Immigration Minister may revoke an Immigration Minister’s
suspension certificate at any time by giving the registered provider written
notice.
(1) A person is guilty of an offence if the person:
(a) makes an offer to an overseas student, an intending overseas student
or any other prescribed non-citizen for him or her to be provided with a course
in any State by a registered provider; or
(b) invites an overseas student, an intending overseas student or a
prescribed non-citizen to undertake, or apply to undertake, a course in any
State offered by a registered provider; or
(c) holds a registered provider out as able or willing to provide a course
in any State to overseas students or prescribed non-citizens;
while an Immigration Minister’s suspension certificate is in effect
for that registered provider.
Maximum penalty: Imprisonment for 2 years.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(2) The provider is still registered for all other purposes.
(3) In this section:
prescribed non-citizen means a non-citizen (within the
meaning of the Migration Act 1958) who is of a kind prescribed for the
purposes of this section in regulations made under that Act.
(1) Unless, by the end of the period for which an Immigration
Minister’s suspension certificate is in effect, the registered provider
has satisfied the Immigration Minister that he or she should not be given a
further certificate, the Immigration Minister may give the provider a further
Immigration Minister’s suspension certificate.
(2) The Immigration Minister does not have to follow the procedure in
subsections 98(1) and (2) in order to give a further Immigration
Minister’s suspension certificate.
Tabling further certificate in Parliament
(3) However, the Immigration Minister must table a copy of the further
certificate in both Houses of Parliament within 15 sitting days of giving it to
the provider.
Application of this section to further certificates
(4) This section applies to a further Immigration Minister’s
suspension certificate or certificates in the same way as it applies to an
original Immigration Minister’s suspension certificate.
(1) The Secretary must cause the Register to be altered appropriately if
the Immigration Minister has given or revoked an Immigration Minister’s
suspension certificate (or a further such certificate).
(2) However, a failure to do so does not affect the validity of the
certificate or revocation.
(1) A registered provider that breaches subsection 19(1) is guilty of a
separate offence for each event for which the required information is not
given.
Maximum penalty: 60 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: See section 4AA of the Crimes Act 1914
for the current value of a penalty unit.
(2) Strict liability applies to subsection (1).
(3) A registered provider that breaches subsection 19(2) is guilty of a
separate offence for each event for which the required information is not
given.
Maximum penalty: 60 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: See section 4AA of the Crimes Act 1914
for the current value of a penalty unit.
(4) A registered provider that breaches section 20 is guilty of a
separate offence for each breach for which the required notice is not
sent.
Maximum penalty: 60 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: See section 4AA of the Crimes Act 1914
for the current value of a penalty unit.
(1) A registered provider that breaches section 21 is guilty of a
separate offence for each student for whom the required records are not kept or
retained.
Maximum penalty: 60 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: See section 4AA of the Crimes Act 1914
for the current value of a penalty unit.
(2) Strict liability applies to subsection (1).
(1) The regulations may provide for the Minister to give a registered
provider an infringement notice requiring payment of a penalty for an offence
against subsection 104(1) or section 105 as an alternative to prosecution
for the offence.
(2) The amount of the penalty must be:
(a) for an individual—12 penalty units; or
(b) for a body corporate—60 penalty units.
Note: See section 4AA of the Crimes Act 1914 for
the current value of a penalty unit.
(3) The regulations may provide for matters concerning the infringement
notices.
(1) A person is guilty of an offence if the person in written material,
including in electronic form:
(a) makes an offer to an overseas student or an intending overseas student
to provide a course in the State to that student; or
(b) invites an overseas student or intending overseas student to
undertake, or to apply to undertake, a course in the State; or
(c) holds himself, herself or itself out as able or willing to provide the
course in the State to overseas students;
and the material fails to identify:
(d) the registered provider for the course for the State; and
(e) the number allocated to the registered provider under section 10;
and
(f) any other information prescribed by the regulations.
Maximum penalty: Imprisonment for 6 months.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
A person is guilty of an offence if the person provides false or
misleading information in complying or purporting to comply with any of the
following provisions:
(a) section 13 (fund manager may require information);
(b) section 19 (giving information about accepted
students);
(c) section 20 (sending students notice of visa breaches);
(d) subsection 26(1) or (3) (disclosure obligations of registered
providers).
Maximum penalty: Imprisonment for 12 months.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(1) This section applies if a computer system is established for the
purpose of receiving and storing information about accepted students that is
given to the Secretary under section 19.
(2) The Secretary may give any person access to the system for the
purposes of this Act.
Access may be given subject to conditions
(3) The access may be given subject to conditions that the Secretary
determines in writing relating to the use of the system and of the means of
obtaining access to the system.
(4) The Secretary must give the person a copy of the conditions.
Offence: breaching conditions
(5) The person is guilty of an offence if the person:
(a) intentionally breaches a condition; and
(b) knows that, or is reckless as to whether, that conduct is a breach of
the condition.
Maximum penalty: Imprisonment for 6 months.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: A person who obtains access to information on the
system without authority could be guilty of an offence against Part VIA of
the Crimes Act 1914.
(1) A person is guilty of an offence if:
(a) the person intentionally provides, purports to provide or offers to
provide a course to overseas students; and
(b) the course is not genuine; and
(c) in engaging in the conduct mentioned in paragraph (a), the person
intends to facilitate, or is reckless as to facilitating, a breach of one or
more conditions of any of the students’ visas (whether or not a breach in
fact occurs).
Maximum penalty: Imprisonment for 2 years, 100 penalty units or
both.
(2) The fault element for paragraph (1)(b) is knowledge.
(3) For the purposes of subsection (1), a course is not
genuine if it is provided without serious regard to reasonable
standards of education or training (including standards relating to attendance
and participation by students) or if the course is a sham.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: See section 4AA of the Crimes Act 1914
for the current value of a penalty unit.
(1) A power conferred on a magistrate by section 129, 138, 144, 150,
154 or 165 is conferred on the magistrate in a personal capacity and not as a
court or a member of a court.
(2) The magistrate need not accept the power conferred.
A magistrate exercising a power mentioned in subsection 111(1) has the
same protection and immunity as if he or she were exercising that power as, or
as a member of, the court of which the magistrate is a member.
(1) This section applies if the Secretary reasonably believes that an
individual specified in subsection (4) has, or has access to, information
or documents that are relevant to a monitoring purpose.
(2) The Secretary may give the individual a written notice requiring him
or her to:
(a) give any information or documents relevant to the monitoring purpose
to an authorised employee; or
(b) show any such documents to an authorised employee; or
(c) make copies of any such documents and give the copies to an authorised
employee.
Note: The Secretary may also give the individual an
attendance notice: see section 116.
Information and documents may be required in a particular
form
(3) If the information or documents are in a particular form then the
production notice may require the information or documents to be given in that
form.
Individuals who may be given production notices
(4) The individuals who may be given a production notice are:
(a) an officer or employee of a registered provider; or
(b) a consultant to a registered provider; or
(c) a partner in a registered provider; or
(d) an individual trading as a registered provider.
(1) A production notice must:
(a) state that it is given under section 113; and
(b) set out the effects of sections 120, 121 and 122; and
(c) state how and by when the information or documents must be given or
shown.
Time for production of information or documents
(2) In so far as the notice covers information or documents:
(a) that relate to any extent to the calendar year in which the notice is
given; and
(b) that are required to be given or shown on the premises where they are
currently located;
the time mentioned in paragraph (1)(c) must be at least 24 hours after
the notice is given.
(3) In so far as the notice covers any other information or documents, the
time mentioned in paragraph (1)(c) must be at least 72 hours after the
notice is given.
(1) The Secretary must give a production notice to an
individual:
(a) by delivering it to the individual personally; or
(b) by:
(i) leaving it at the address of the individual’s place of residence
or business last known to the Secretary; and
(ii) taking reasonably practicable action to draw the individual’s
attention to the notice; or
(c) by sending it by ordinary or any other class of pre-paid post to the
individual’s place of residence or business last known to the
Secretary.
(2) However, if the Secretary uses the method in paragraph (1)(c),
the time mentioned in paragraph 114(1)(c) must be at least 14 days after the
notice is given (instead of at least 24 hours or 72 hours).
Note: Section 29 of the Acts Interpretation Act
1901 sets out when the notice is taken to have been given if the notice is
posted to the individual.
(1) This section applies if the Secretary reasonably believes that an
individual specified in subsection (3) has, or has access to, information
or documents that are relevant to a monitoring purpose.
(2) The Secretary may give the individual written notice requiring the
individual to attend before an authorised employee and answer questions about
the matter.
Note: The Secretary may also give the individual a
production notice: see section 113.
Individuals who may be given attendance notices
(3) The individuals who may be given an attendance notice are:
(a) an officer or employee of a registered provider; or
(b) a consultant to a registered provider; or
(c) a partner in a registered provider; or
(d) an individual trading as a registered provider.
(1) An attendance notice must:
(a) state that it is given under section 116; and
(b) set out the effects of sections 120, 121 and 122; and
(c) state where and when the individual is to attend.
The time mentioned in paragraph (c) must be at least 14 days after the
notice is given.
(2) An attendance notice may be included in the same document as a
production notice, if the notices are being given to the same
individual.
The regulations may prescribe scales of expenses to be allowed to persons
required to give information or documents under this Division.
A person is entitled to be paid by the Commonwealth reasonable
compensation for complying with a requirement covered by paragraph 113(2)(c)
(copies of documents given under production notices).
(1) A person who refuses or fails to comply with a production or
attendance notice is guilty of an offence.
Maximum penalty: Imprisonment for 6 months.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(2) However, a person is not guilty of an offence in relation to a
production notice if the person complied with the notice to the extent that it
was practicable to do so within the period allowed by the notice.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (2): see subsection 13.3(3) of the Criminal
Code.
A person who gives false or misleading information in the course of
complying or purporting to comply with a production or attendance notice is
guilty of an offence.
Maximum penalty: Imprisonment for 12 months.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(1) A person who gives or shows an authorised employee a document that is
false or misleading in a material particular, in the course of complying or
purporting to comply with a production or attendance notice, is guilty of an
offence.
Maximum penalty: Imprisonment for 12 months.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(2) However, the person is not guilty of the offence if the document is
accompanied by a written statement signed by the person:
(a) stating that the document is, to the person’s knowledge, false
or misleading in the material particular concerned; and
(b) setting out or referring to the material particular.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (2): see subsection 13.3(3) of the Criminal
Code.
(1) A person is not excused from the requirement to comply with a
production or attendance notice on the ground that doing so might tend to
incriminate the person or expose the person to a penalty.
(2) However, if the person is an individual:
(a) the information, document or answer to the question; or
(b) any other information, document or thing obtained as a direct or
indirect result of complying with a notice;
is not admissible in evidence against the individual in any criminal
proceedings other than proceedings under, or arising out of, section 121 or
122.
An authorised employee, or another employee of the Department with an
authorised employee’s permission, may:
(a) inspect a document given or shown to the authorised employee under
this Division; and
(b) make and retain copies of, or take and retain extracts from, such a
document; and
(c) retain a copy of a document given to the authorised employee in
accordance with a requirement covered by paragraph 113(2)(c) (copies of
documents given under production notices).
(1) An authorised employee, or another employee of the Department with an
authorised employee’s permission, may retain a document given to the
authorised employee under this Division:
(a) for the purposes of this Act; or
(b) for the purposes of an investigation as to whether an offence has been
committed; or
(c) to enable evidence of an offence to be secured for the purposes of a
prosecution.
(2) However, the document must not be retained for longer than 60 days
after the authorised employee was given the document.
Note: The authorised employee may apply to retain the
document for a further period: see section 128.
(1) An employee retaining a document under section 125 must as soon
as practicable:
(a) certify a copy of the document to be a true copy; and
(b) give the copy to the person (the owner)
otherwise entitled to possession of the document.
(2) The certified copy must be received in all courts and tribunals as
evidence as if it had been the original.
Owner may inspect etc. original document
(3) Until the certified copy is given, the owner, or a person authorised
by the owner, may inspect and make copies of, or take and retain extracts from,
the original document at the times and places that the employee thinks
appropriate.
(1) This section applies 60 days after a document is given to an
authorised employee under this Division.
(2) The authorised employee must take reasonable steps to return the
document to the person who gave the employee the document or to the owner if
that person is not entitled to possess it.
(3) However, the authorised employee does not have to take those steps
if:
(a) the authorised employee may retain the document because of an order
under section 129; or
(b) the authorised employee is otherwise authorised (by a law, or an order
of a court, of the Commonwealth or a State) to retain, destroy or dispose of the
document.
(1) An authorised employee given a document under this Division, or
another employee who is currently retaining such a document, may apply to a
magistrate or tribunal member for an order that the employee may retain the
document for a further period.
Time limit for application
(2) The application must be made before the end of:
(a) 60 days after the document was given to the authorised employee;
or
(b) a period previously specified in an order of a magistrate or tribunal
member under section 129.
Employee must try to notify those affected
(3) Before making the application, the employee must:
(a) take reasonable steps to discover which persons’ interests would
be affected by the retention of the document; and
(b) if it is practicable to do so, notify each person who the employee
believes to be such a person of the proposed application.
(1) The magistrate or tribunal member may order that the employee who made
the application under section 128 may retain the document if the
magistrate or tribunal member is satisfied that it is necessary for the employee
to retain it:
(a) for the purposes of this Act; or
(b) for the purposes of an investigation as to whether an offence has been
committed; or
(c) to enable evidence of an offence to be secured for the purposes of a
prosecution.
(2) The order must specify the period for which the employee may retain
the document.
(1) An authorised employee may for a monitoring purpose:
(a) enter any premises:
(i) occupied by a registered provider for the purposes of providing
courses; or
(ii) at which it is reasonable to believe there might be a thing belonging
to or possessed by the provider, or an activity conducted by or with the consent
of the provider, that is relevant to a monitoring purpose; and
(b) exercise the monitoring powers set out in section 131.
(2) An authorised employee is not authorised to enter premises under
subsection (1) unless:
(a) the occupier of the premises has consented to the entry and the
employee has shown his or her identity card if requested by the occupier;
or
Note: Section 157 sets out the requirements for
obtaining the occupier’s consent.
(b) the entry is made under a monitoring warrant.
Note: Monitoring warrants are issued under section 138
or subsection 165(2).
(1) For the purposes of this Division, the following are the
monitoring powers that an authorised employee may exercise in
relation to premises under section 130:
(a) to search the premises, and any receptacle on the premises,
for any thing on the premises belonging to or possessed by the provider that
might be relevant to a monitoring purpose;
(b) to examine any such thing;
(c) to examine any activity that is conducted on the premises by, or with
the consent of, the provider that might be relevant to a monitoring
purpose;
(d) to take photographs or make video or audio recordings or sketches on
the premises of any such activity or thing;
(e) to inspect any document on the premises belonging to or possessed by
the provider that might be relevant to a monitoring purpose;
(f) to take extracts from or make copies of any such document;
(g) to take onto the premises any equipment and materials that the
authorised employee requires for the purpose of exercising powers in relation to
the premises;
(h) to secure a thing, until a search warrant is obtained to seize it,
being a thing:
(i) that the employee finds during the exercise of monitoring powers on
the premises; and
(ii) that the employee believes on reasonable grounds is evidential
material; and
(iii) that the employee believes on reasonable grounds would be lost,
destroyed or tampered with before the warrant can be obtained;
(i) the powers in subsections (2), (3) and (5).
Operating equipment
(2) For the purposes of this Division, the monitoring powers
include the power to operate equipment that is on the premises to see
whether:
(a) the equipment; or
(b) a disk, tape or other storage device that:
(i) is on the premises; and
(ii) can be used with the equipment or is associated with it;
contains information belonging to the provider that is relevant to a
monitoring purpose.
Removing disks etc. and documents
(3) For the purposes of this Division, the monitoring powers
include the following powers in relation to information described in
subsection (2) that is found in the exercise of the power under that
subsection:
(a) to operate facilities that are on the premises to put the information
in documentary form and remove the documents so produced;
(b) to operate such facilities to transfer the information to a disk, tape
or other storage device that:
(i) is brought to the premises for the exercise of the power; or
(ii) is on the premises and the use of which for that purpose has been
agreed to in writing by the provider or occupier (as appropriate);
(c) to remove from the premises a disk, tape or other storage device to
which the information has been transferred in exercise of the power under
paragraph (b).
(4) The powers mentioned in subsections (2) and (3) must be exercised
in accordance with section 148.
Securing evidence of other offences
(5) If an authorised employee, during a search of premises, reasonably
believes that there is on the premises a thing that might afford evidence of the
commission of an offence against this Act, the Crimes Act 1914 or the
Criminal Code, the monitoring powers include securing the
thing pending the obtaining of a warrant to seize it.
An authorised employee who is only authorised to enter premises because
the occupier of the premises consented to the entry may:
(a) ask the occupier to:
(i) answer any questions that are relevant to a monitoring purpose;
and
(ii) give or show the authorised employee any document requested by the
employee that is relevant to the matter; or
(b) ask any person on the premises to answer any questions that may
facilitate the exercise of monitoring powers in relation to the
premises.
Note: A person could be guilty of an offence if, in
complying or purporting to comply with this section, the person gives false or
misleading information or shows a document that is false or misleading in a
material particular: see sections 135 and 136.
An authorised employee who is authorised to enter premises by a
monitoring warrant may:
(a) require the occupier of the premises to:
(i) answer any questions that are relevant to a monitoring purpose;
and
(ii) give or show the employee any document requested by the employee that
is relevant to a monitoring purpose; or
(b) require any person on the premises to answer any questions that may
facilitate the exercise of monitoring powers in relation to the
premises.
Note 1: A person could be guilty of an offence if the person
fails to comply with a requirement under this section: see
section 134.
Note 2: A person could be guilty of an offence if, in
complying or purporting to comply with this section, the person gives false or
misleading information or shows a document that is false or misleading in a
material particular: see sections 135 and 136.
(1) A person is guilty of an offence if the person refuses or fails to
comply with a requirement under section 133 (employee on premises under
warrant may ask questions).
Maximum penalty: Imprisonment for 6 months.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(2) However, a person is not guilty of an offence if answering the
question or giving or showing the document might tend to incriminate the person
or expose the person to a penalty.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (2): see subsection 13.3(3) of the Criminal
Code.
A person who gives false or misleading information in the course of
complying or purporting to comply with section 132 or 133 (employee may ask
questions) is guilty of an offence.
Maximum penalty: Imprisonment for 12 months.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(1) A person who gives or shows an authorised employee a document that is
false or misleading in a material particular, in the course of complying or
purporting to comply with section 132 or 133 (employee may ask questions),
is guilty of an offence.
Maximum penalty: Imprisonment for 12 months.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(2) However, the person is not guilty of an offence if the document is
accompanied by a written statement signed by the person:
(a) stating that the document is, to the person’s knowledge, false
or misleading in the material particular concerned; and
(b) setting out or referring to the material particular.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (2): see subsection 13.3(3) of the Criminal
Code.
(1) An authorised employee may apply to a magistrate or tribunal member
for a monitoring warrant in relation to premises mentioned in subsection 130(1)
(including premises in a State other than the magistrate’s or tribunal
member’s State).
Note: Monitoring warrants may also be obtained by telephone,
fax or other electronic means in urgent circumstances: see
section 165.
(2) The employee must give the magistrate or tribunal member an
information on oath or affirmation that sets out the grounds for seeking the
warrant.
The magistrate or tribunal member may issue a monitoring warrant if he or
she is satisfied that it is reasonably necessary that one or more authorised
employees have access to the premises mentioned in subsection 130(1) for a
monitoring purpose.
(1) The magistrate or tribunal member may require an authorised employee
or other person to give the magistrate or tribunal member further information on
oath or affirmation concerning the grounds on which the monitoring warrant is
being sought before issuing it.
(2) The information may be given orally or by affidavit.
(3) The magistrate or tribunal member must not issue the warrant until the
employee or other person has given the required information.
(1) A monitoring warrant must:
(a) authorise one or more authorised employees:
(i) to enter the premises; and
(ii) to exercise the powers under section 131 in relation to the
premises; and
(b) state whether the entry is authorised at any time of the day or night
or during specified hours of the day or night; and
(c) state the day and time at which it ceases to have effect (which must
be no later than 7 days after it is issued); and
(d) state the purpose for which the warrant is issued; and
(e) state that the warrant is issued under section 138.
(2) The authorised employees do not have to be named in the
warrant.
(1) This section applies if an authorised employee has reasonable grounds
for suspecting that there may be evidential material on any premises.
(2) The authorised employee may:
(a) enter the premises; and
(b) exercise the search powers set out in section 142; and
(c) if the entry is under warrant—seize the evidential material, if
the authorised employee finds it on the premises.
(3) However, an authorised employee is not authorised to enter premises
under subsection (2) unless:
(a) the occupier of the premises has consented to the entry and the
employee has shown his or her identity card if requested by the occupier;
or
Note: Section 157 sets out the requirements for
obtaining the occupier’s consent.
(b) the entry is made under a search warrant.
Note: Search warrants are issued under section 144 or
subsection 165(3).
(1) For the purposes of this Division, the following are the search
powers that an authorised employee may exercise in relation to premises
under section 141:
(a) to search the premises, and any receptacle on the premises, for
the evidential material;
(b) to examine the evidential material;
(c) to take photographs or make video or audio recordings or sketches on
the premises of the evidential material;
(d) to inspect any documentary evidential material;
(e) to take extracts from or make copies of the evidential
material;
(f) to take onto the premises any equipment and materials that the
authorised employee requires for the purpose of exercising powers in relation to
the premises;
(g) the powers in subsections (2), (3) and (5).
Operating equipment
(2) For the purposes of this Division, the search powers
include the power to operate equipment that is on the premises to see
whether:
(a) the equipment; or
(b) a disk, tape or other storage device that:
(i) is on the premises; and
(ii) can be used with the equipment or is associated with it;
contains evidential material.
Removing disks etc. and documents
(3) For the purposes of this Division, the search powers
include the following powers in relation to the evidential material that is
found in the exercise of the power under subsection (2):
(a) to seize the equipment or any disk, tape or other associated storage
device;
(b) to operate facilities that are on the premises to put the material in
documentary form and remove the documents so produced;
(c) to operate such facilities to transfer the material to a disk, tape or
other storage device that:
(i) is brought to the premises for the exercise of the power; or
(ii) is on the premises and the use of which for that purpose has been
agreed to in writing by the provider or occupier (as appropriate);
(d) to remove from the premises a disk, tape or other storage device to
which the evidential material has been transferred in exercise of the power
under paragraph (c).
(4) The powers mentioned in subsections (2) and (3) must be exercised
in accordance with section 148.
(5) An authorised employee may seize equipment under paragraph (3)(a)
only if:
(a) it is not practicable to put the material in documentary form as
mentioned in paragraph (3)(b) or to copy the material as mentioned in
paragraph (3)(c); or
(b) possession by the occupier of the equipment could constitute an
offence.
(6) An authorised employee may seize equipment under paragraph (3)(a)
or remove the documents under paragraph (3)(b) only if the employee entered
the premises under a warrant.
Securing evidence of other offences
(7) If an authorised employee, during a search of premises, reasonably
believes that there is on the premises a thing that might afford evidence of the
commission of an offence against this Act, the Crimes Act 1914 or the
Criminal Code, then the search powers include securing the
thing pending the obtaining of a warrant to seize it.
Note: Section 151 allows for things to be seized
without a warrant in emergencies.
(1) An authorised employee may apply to a magistrate or tribunal member
for a search warrant in relation to the premises mentioned in subsection 141(1)
(including premises in a State other than the magistrate’s or tribunal
member’s State).
Note: Search warrants may also be obtained by telephone, fax
or other electronic means in urgent circumstances: see
section 165.
(2) The employee must give the magistrate or tribunal member an
information on oath or affirmation that sets out the grounds for seeking the
warrant.
The magistrate or tribunal member may issue a search warrant if he or she
is satisfied that there are reasonable grounds for suspecting that there may be
evidential material on the premises.
(1) The magistrate or tribunal member may require an authorised employee
or other person to give the magistrate or tribunal member further information on
oath or affirmation concerning the grounds on which the search warrant is being
sought before issuing it.
(2) The information may be given orally or by affidavit.
(3) The magistrate or tribunal member must not issue the warrant until the
employee or other person has given the required information.
(1) A search warrant must:
(a) authorise one or more authorised employees:
(i) to enter the premises; and
(ii) to exercise the powers under section 142 in relation to the
premises; and
(b) state whether the entry is authorised at any time of the day or night
or during specified hours of the day or night; and
(c) state the day and time at which it ceases to have effect (which must
be no later than 7 days after it is issued); and
(d) state the purpose for which the warrant is issued; and
(e) state that the warrant is issued under section 144.
(2) The authorised employees must be named in the warrant.
An authorised employee may use such assistance and force as is necessary
and reasonable in entering the premises under a monitoring warrant or a search
warrant and exercising the powers under section 131 or 142.
In order to exercise search powers or monitoring powers, an authorised
employee or a person assisting may operate electronic equipment on the premises
if he or she reasonably believes that this can be done without damaging the
equipment or data recorded on the equipment.
Note: Compensation may be payable in certain circumstances
if the equipment or data is damaged: see section 160.
(1) This section applies if the authorised employee or a person assisting
reasonably believes that:
(a) there is on the premises:
(i) if the authorised employee is on the premises under
section 130—information belonging to the provider concerned that is
relevant to a monitoring purpose; or
(ii) if the authorised employee is on the premises under
section 141—evidential material;
that might be accessible by operating electronic equipment that is on the
premises; and
(b) expert assistance is required to operate the equipment; and
(c) if he or she does not take action under subsection (2), the
information might be destroyed, altered or otherwise interfered with.
(2) The authorised employee or person assisting may do whatever is
necessary to secure the equipment.
Authorised employee must give notice
(3) Before doing so, the authorised employee or person assisting must give
notice to the occupier of the premises of:
(a) his or her intention to secure equipment; and
(b) the fact that the equipment may be secured for up to 24
hours.
Time limit on securing equipment
(4) The equipment may only be secured until the earlier of:
(a) 24 hours later; or
(b) the equipment being operated by the expert.
(1) If an authorised employee or a person assisting reasonably believes
that the expert assistance will not be available within 24 hours, he or she may
apply to a magistrate or tribunal member for an extension of the
period.
(2) The authorised employee or a person assisting must give notice to the
occupier of the premises of his or her intention to apply for an extension. The
occupier is entitled to be heard in relation to that application.
(3) Subdivision B of Divisions 3 and 4 relating to the issue of
monitoring warrants and search warrants apply, with such modifications as are
necessary, to the issue of an extension.
(1) This section applies when an authorised employee is on premises under
section 130 or 141 if the employee reasonably suspects that:
(a) a thing relevant to an offence against this Act, the Crimes Act
1914 or the Criminal Code is on the premises; and
(b) it is necessary to exercise a power under subsection (2) in order
to prevent the thing from being concealed, lost or destroyed; and
(c) it is necessary to exercise the power without the authority of a
monitoring warrant or a search warrant because the circumstances are so serious
and urgent.
(2) The authorised employee may:
(a) search the premises, and any receptacle on the premises, for the
thing; and
(b) seize the thing if he or she finds it there; and
(c) either:
(i) if the employee is on the premises under
section 130—exercise the powers mentioned in subsections 131(2) and
(3); or
(ii) if the employee is on the premises under
section 141—exercise the powers mentioned in subsections 142(2) and
(3);
in relation to the thing.
(1) This section applies to an authorised employee when one of the
following happens in respect of a thing seized under section 151:
(a) the reason for the thing’s seizure no longer exists or it is
decided that the thing is not to be used in evidence; or
(b) the period of 60 days after the thing’s seizure ends.
(2) The authorised employee must take reasonable steps to return the thing
to the person from whom it was seized or to the owner if that person is not
entitled to possess it.
(3) However, the authorised employee does not have to take those steps
if:
(a) in a paragraph (1)(b) case:
(i) proceedings in respect of which the thing might afford evidence have
been instituted before the end of the 60 days and have not been completed
(including an appeal to a court in relation to those proceedings); or
(ii) the authorised employee may retain the thing because of an order
under section 153; or
(b) in any case—the authorised employee is otherwise authorised (by
a law, or an order of a court or a tribunal, of the Commonwealth or a State) to
retain, destroy or dispose of the thing; or
(c) the thing is forfeited or forfeitable to the Commonwealth or is the
subject of a dispute as to ownership.
(1) This section applies if an authorised employee has seized a thing
under section 151 and proceedings in respect of which the thing might
afford evidence have not commenced before the end of:
(a) 60 days after the seizure; or
(b) a period previously specified in an order of a magistrate or tribunal
member under section 154.
(2) The authorised employee may apply to a magistrate or tribunal member
for an order that the employee may retain the thing for a further
period.
Authorised employee must try to notify those affected
(3) Before making the application, the authorised employee must:
(a) take reasonable steps to discover which persons’ interests would
be affected by the retention of the thing; and
(b) if it is practicable to do so, notify each person who the employee
believes to be such a person of the proposed application.
(1) The magistrate or tribunal member may order that the authorised
employee who made an application under section 153 may retain the
thing if the magistrate or tribunal member is satisfied that it is necessary for
the employee to do so:
(a) for the purposes of an investigation as to whether an offence has been
committed; or
(b) to enable evidence of an offence to be secured for the purposes of a
prosecution.
(2) The order must specify the period for which the employee may retain
the thing.
(1) The occupier of the premises to which a monitoring warrant or a search
warrant relates must provide the authorised employee executing the warrant and
any person assisting that employee with all reasonable facilities and assistance
for the effective exercise of their powers.
(2) A person is guilty of an offence if the person breaches
subsection (1).
Maximum penalty: 10 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: See section 4AA of the Crimes Act 1914
for the current value of a penalty unit.
(1) An authorised employee may enter premises under section 130 or
141 with the consent of the occupier of the premises at any reasonable time of
the day or night.
(2) However, the authorised employee must leave the premises if the
occupier asks the employee to do so.
(1) Before obtaining the consent of a person for the purposes of paragraph
130(2)(a) or 141(3)(a), the authorised employee must inform the person that he
or she may refuse consent.
(2) An entry of an authorised employee with the consent of a person is not
lawful unless the person voluntarily consents to the entry.
An authorised employee executing a monitoring warrant or a search warrant
must, before entering premises under the warrant:
(a) announce that he or she is authorised to enter the premises;
and
(b) give a person on the premises (if there is one) an opportunity to
allow entry to the premises.
(1) If a monitoring warrant or a search warrant is being executed on
premises and the occupier of the premises is present, the authorised employee
must make a copy of the warrant available to the occupier.
(2) The authorised employee must identify himself or herself to that
person.
(1) This section applies if:
(a) damage is caused to equipment as a result of it being operated as
mentioned in section 148; or
(b) the data recorded on the equipment is damaged or programs associated
with its use are damaged or corrupted;
because:
(c) insufficient care was exercised in selecting the person who was to
operate the equipment; or
(d) insufficient care was exercised by the person operating the
equipment.
Amount of compensation
(2) The Commonwealth must pay the owner of the equipment, or the user of
the data or programs, such reasonable compensation for the damage or corruption
as they agree on.
(3) However, if the owner or user and the Commonwealth fail to agree, the
owner or user may institute proceedings in the Federal Court for such reasonable
amount of compensation as the Court determines.
(4) In determining the amount of compensation payable, regard is to be had
to whether the occupier of the premises and his or her employees and agents, if
they were available at the time, provided any appropriate warning or guidance on
the operation of the equipment.
(5) Compensation is payable out of money appropriated by the
Parliament.
Damage to data
(6) For the purposes of subsection (1), damage to data
includes damage by erasure of data or addition of other data.
(1) If a monitoring warrant or a search warrant is being executed at
premises and the occupier of the premises is present, the occupier is entitled
to observe the execution of the warrant.
(2) The right to observe the execution of the warrant ceases if the
occupier impedes that execution.
(3) This section does not prevent the execution of the warrant in 2 or
more areas of the premises at the same time.
(1) The Secretary must give each authorised employee an identity
card.
(2) An identity card must:
(a) be in a form approved in writing by the Secretary; and
(b) include a recent photograph of the employee.
Offence: failing to return identity card
(3) A person is guilty of an offence if:
(a) the person holds or held an identity card; and
(b) the person ceases to be an authorised employee; and
(c) the person does not, as soon as is practicable after so ceasing,
return the identity card to the Secretary.
Maximum penalty: 1 penalty unit.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: See section 4AA of the Crimes Act 1914
for the current value of a penalty unit.
(4) This offence is one of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
Defence: lost or destroyed card
(5) However, the person is not guilty of the offence if the identity card
was lost or destroyed.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (5): see subsection 13.3(3) of the Criminal
Code.
Authorised employee must always carry identity card
(6) An authorised employee must carry an identity card at all times when
exercising powers under Division 3, 4 or 5.
An authorised employee is not entitled to exercise any powers under
Division 3, 4 or 5 in relation to premises if:
(a) the occupier of the premises requests the authorised employee to show
his or her identity card to the occupier; and
(b) the authorised employee fails to comply with the request.
(1) An authorised employee may apply to a magistrate or tribunal member
for a monitoring warrant or a search warrant by telephone, fax or other
electronic means if the employee thinks it necessary to do so because of urgent
circumstances.
(2) The magistrate or tribunal member may require communication by voice
to the extent that it is practicable in the circumstances.
(3) Before making the application, the authorised employee must prepare an
information on oath or affirmation that sets out the grounds for seeking the
warrant.
(4) However, the employee may make the application before the information
has been sworn or affirmed, if necessary.
Procedure before issuing the warrant
(1) Before issuing the warrant the magistrate or tribunal member
must:
(a) consider the information prepared under subsection 164(3);
and
(b) receive any further information that the magistrate or tribunal member
may require about the grounds on which the warrant is being sought.
Issuing monitoring warrant by telephone etc.
(2) The magistrate or tribunal member may issue a monitoring warrant if
the magistrate or tribunal member is satisfied:
(a) that it is reasonably necessary that one or more authorised employees
have access to the premises for a monitoring purpose; and
(b) that there are reasonable grounds for issuing the warrant by
telephone, fax or other electronic means.
Issuing search warrant by telephone etc.
(3) The magistrate or tribunal member may issue a search warrant if the
magistrate or tribunal member is satisfied:
(a) that there are reasonable grounds for suspecting that there might be
evidential material on the premises; and
(b) that there are reasonable grounds for issuing the warrant by
telephone, fax or other electronic means.
Obligations on magistrate or tribunal member
(1) If the magistrate or tribunal member issues a warrant under
section 165, the magistrate or tribunal member must complete and sign a
warrant that is the same as the monitoring warrant or search warrant that the
magistrate or tribunal member would have issued if the application had been made
under section 137 or 143.
(2) The magistrate or tribunal member must also:
(a) inform the authorised employee of:
(i) the terms of the warrant; and
(ii) the day and time when it was signed; and
(iii) the time at which it ceases to have effect (which must be no later
than 48 hours after it is signed); and
(b) record on the warrant the reasons for issuing it.
Obligations on authorised employees
(3) The authorised employee must:
(a) complete a form of warrant in the terms given to the authorised
employee by the magistrate or tribunal member; and
(b) write on it the magistrate’s or tribunal member’s name and
the day and time when the warrant was signed.
Obligations on authorised employee
(1) An authorised employee who completes a form of warrant under
section 166 must send the magistrate or tribunal member who signed the
monitoring warrant or search warrant:
(a) the form of warrant completed by the authorised employee;
and
(b) the information duly sworn or affirmed in connection with the
warrant.
(2) The form of warrant and information must be sent by the end of the day
after the earlier of:
(a) the day on which the warrant ceases to have effect; or
(b) the day on which the warrant is executed.
Obligations on magistrate or tribunal member
(3) The magistrate or tribunal member must:
(a) attach the monitoring warrant or search warrant signed by the
magistrate or tribunal member under section 166 to the form of warrant and
information; and
(b) deal with the documents in the same way that the magistrate or
tribunal member would have dealt with them if the application for the warrant
had been made under section 137 or 143.
The form of warrant completed under section 166 is authority for any
exercise of a power that the monitoring warrant or search warrant issued under
section 165 is authority for, if the form of warrant is in accordance with
the terms of the monitoring warrant or search warrant.
A court must assume (unless the contrary is proved) that an exercise of
power was not authorised by a monitoring warrant or search warrant if the
warrant signed by the magistrate or tribunal member under section 166 is
not produced in evidence.
Minister’s delegation
(1) The Minister may, by signed writing, delegate to the Secretary, or to
an SES employee or acting SES employee in the Department, all or any of the
Minister’s powers under this Act.
Secretary’s delegation
(2) The Secretary may, by signed writing, delegate to an SES employee or
acting SES employee in the Department, all or any of the Secretary’s
powers under this Act.
(1) A registered provider is liable to pay a reinstatement fee if the
suspension of, or a condition on, the registration of the provider is removed
under subsection 89(2) or 90(2) or section 94.
When fee must be paid
(2) The fee must be paid by the day stated in a written notice that the
Secretary gives to the provider.
(3) The day stated in the notice must be at least 28 days after the day
the notice is given.
Amount of reinstatement fee
(4) The amount of the reinstatement fee is:
(a) $100 for 2000; and
(b) for a later year (the current year), the amount worked
out by multiplying the reinstatement fee for the year before the current year by
the indexation factor that applies to the current year.
(5) The indexation factor that applies to the current year
is worked out using the following formula:
where:
index number for a quarter means the All Groups Consumer
Price Index number that is the weighted average of the 8 capital cities and is
published by the Australian Statistician for that quarter.
previous September quarter means the September quarter before
the recent September quarter.
recent September quarter means the September quarter in the
year before the current year.
(6) The indexation factor worked out under subsection (5) must be
rounded up or down to 3 places (rounding up in the case of exactly halfway
between).
(7) The amount worked out under paragraph (4)(b) must be rounded to
the nearest whole dollar (rounding up in the case of 50 cents).
(8) If at any time (whether before or after the commencement of this
section) the Australian Statistician has changed or changes the reference base
for the Consumer Price Index, then, for the purposes of applying this section
after the change, only index numbers published in terms of the new reference
base are to be used.
(1) A registered provider must pay a late payment penalty for
any:
(a) annual registration charge; or
(b) reinstatement fee; or
(c) annual Fund contribution or special levy;
payable by the provider that remains unpaid after the time when it became
due for payment.
Amount of penalty
(2) The amount of the penalty is 20% per year on the unpaid amount
calculated from the day when the original amount became due for
payment.
(1) The following are recoverable as debts due to the Commonwealth by
action in a court of competent jurisdiction:
(a) annual registration charge;
(b) reinstatement fee or late payment penalty;
(c) annual Fund contribution (other than a provider’s first annual
Fund contribution) or special levy.
(2) In the case of an amount that relates to the Fund, the Fund Manager
may recover the debt on behalf of the Commonwealth.
The following persons are jointly and severally liable to pay an amount
for which a registered provider that is an unincorporated body is liable under
this Act, the Education Services for Overseas Students (Registration Charges)
Act 1997 or the Education Services for Overseas Students (Assurance Fund
Contributions) Act 2000:
(a) the principal executive officer of the provider at the time the
liability arose;
(b) if there was a body (however described) that governed, managed or
conducted the affairs of the provider at that time—each of the persons who
were members of that body at that time.
Giving information to government agencies and the Fund
Manager
(1) For the purposes of:
(a) promoting compliance with this Act and the national code; or
(b) assisting with the regulation of providers; or
(c) promoting compliance with the conditions of a particular student visa
or visas, or of student visas generally; or
(d) facilitating the monitoring and control of immigration;
the Secretary may give information obtained or received for the purposes of
this Act to:
(e) an agency of the Commonwealth, or of a State, that is responsible for
or otherwise concerned with immigration or the regulation of providers;
or
(f) the Fund Manager.
Giving information to registered providers
(2) For the purposes of:
(a) promoting compliance with this Act and the national code; or
(b) promoting compliance with the conditions of a particular student visa
or visas, or of student visas generally;
the Secretary may give information relating to an accepted student’s
student visa to the registered provider for the accepted student.
(1) An application may be made to the Administrative Appeals Tribunal for
the review of:
(a) a decision that an approved provider should not be registered under
section 9; or
(b) a decision to take any action under section 83, 87 or 88;
or
(c) a decision not to remove a suspension under subsection
89(2).
(2) If such a decision is made and a written notice of the decision is
given to a person whose interests are affected by the decision, the notice must
include:
(a) a statement to the effect that application may be made to the
Administrative Appeals Tribunal under the Administrative Appeals Tribunal Act
1975 for review of the decision; and
(b) if the person is entitled to reasons for the decision under
section 28 of that Act—a statement to the effect that the person
may request, under that section, a statement that includes reasons for the
decision.
(3) A breach of subsection (2) does not affect the validity of the
decision concerned.
The Governor-General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Act.