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Education Services for Overseas Students Bill 2000

Part 6 Enforcement

Division 1 Conditions, suspension and cancellation

Subdivision A Sanctions for non-compliance etc.

83   Minister may impose sanctions for non-compliance etc.

             (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.

84   Minister may take further action

                   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.

85   Minister may take action for breaches occurring before provider was registered

                   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.

86   Examples of conditions

             (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.

Subdivision B Suspension and cancellation by the Minister

87   Suspension for financial difficulty etc.

                   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.

88   Cancellation if suspended providers cease to provide courses

                   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.

Subdivision C Automatic suspension and cancellation

89   Automatic suspension for loss of approval

             (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.

90   Automatic suspension for non-payment of annual Fund contribution or special levy

             (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.

91   Automatic cancellation of registration for provider who ceases to be approved for a course for a State

                   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.

92   Automatic cancellation for bankruptcy

                   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.

Subdivision D Common rules for conditions, suspension and cancellation

93   Procedure for taking action etc.

             (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 and, in the Secretary’s opinion, the circumstances of the possible breach require urgent action—at least 24 hours; or

                             (ii)  if Subdivision A otherwise applies—at least 72 hours; or

                            (iii)  if Subdivision B or subsection 89(2) applies—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.

94   Minister may remove condition or suspension

                   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.

95   Effect of suspension

             (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.

96   Updating the Register

             (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.



 

Division 2 Immigration Minister’s suspension certificate

97   Immigration Minister may give a registered provider a suspension certificate

             (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.

98   Procedure for issuing certificate

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).

99   Content of certificate

                   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.

100   Duration of certificate

             (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.

101   Effect of certificate: offence

             (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.

102   Further certificates

             (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.

103   Updating the Register

             (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.



 

Division 3 Offences

104   Notification requirements

             (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.

105   Record-keeping

             (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).

106   Infringement notices

             (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—4 penalty units; or

                     (b)  for a body corporate—20 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.

107   Failing to identify registered provider in written material

             (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.

108   Providing false or misleading information

                   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.

109   Access to electronic notification system

             (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 .

110   Bogus providers

             (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.