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Education Services for Overseas Students Bill 2000

Part 2 Registration of approved providers

   

8   Offence: providing or promoting a course without a registered provider

             (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 .

9   Registering approved providers

             (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.

10   The Register

             (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.

11   Approved providers must notify the Secretary and designated authority of previous breaches etc.

             (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).

12   Initial registration charge

             (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.

13   Fund Manager may require information

             (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.

14   Notifying States if the Minister suspects non-compliance with this Act or the national code

             (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.