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Education Services for Overseas Students Bill 2000

Part 1 Introduction

   

1   Short title

                   This Act may be cited as the Education Services for Overseas Students Act 2000 .

2   Commencement

             (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.

3   Crown to be bound

             (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.

4   Criminal Code applies

                   The Criminal Code applies to all offences against this Act.

5   Definitions

                   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authority for the State to provide that course in the State to overseas students, other than an approval that has been withdrawn by that authority.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.

6   Meaning of associate

             (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.

7   Meaning of course money

             (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 organi zation (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.