ESOS Penalties

Comments from DEEWR (formerly DEST)

Sanctions for non-compliance

Where there are reasonable grounds for the Minister (or Minister’s delegate) to believe that a registered provider or an associate of a registered provider is breaching, or has breached the Education Services for Overseas Students Act 2000 (the ESOS Act), the Education Services for Overseas Students Regulations 2001 (ESOS Regulations), the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students (National Code), or a condition on the provider’s registration, the Minister may impose one or more sanctions against the provider. Sanctions include suspension or cancellation action or the imposition of conditions on a provider’s registration. A breach of certain provisions of the ESOS Act or National Code may also be an offence.

Before a sanction can be imposed on a provider’s registration, a written notice stating that the Minister intends to impose a sanction, and giving the provider time to make written submissions about the matter, must be sent to the provider.

Conditions

Under section 83 of the ESOS Act, the Minister may impose one or more conditions on a registered provider’s registration if the provider:

  • is breaching, or has breached, the ESOS Act, the National Code, or a condition on the provider’s registration; or
  • might not be able to provide courses or refund money to accepted students because of financial difficulty or any other reason; or
  • is engaging, or has engaged, in misleading or deceptive conduct in connection with recruitment or the provision of courses to overseas students.

Examples of conditions that may be imposed are:

  • that a limitation be placed on the number of further overseas students that a provider may enrol;
  • the provider not deal with a specified agent in relation to overseas students or intending overseas students;
  • the provider not deal with a specified agent in relation to overseas students or intending overseas students;
  • the provider must not accept any new students from a particular country;
  • the provider must not provide a specified course.

Suspension

Under section 83 of the ESOS Act, the Minister may suspend a registered provider’s registration for any one or more courses for any one or more States if the provider:

  • is breaching, or has breached, the ESOS Act, the National Code, or a condition on the provider’s registration; or
  • might not be able to provide courses or refund money to accepted students because of financial difficulty or any other reason; or
  • is engaging, or has engaged, in misleading or deceptive conduct in connection with recruitment or courses.

A registered provider’s registration for a course is automatically suspended if:

  • a designated authority for a State or Territory suspends the approval of that course for the provider (section 89 of the ESOS Act); or
  • the provider fails to comply with a reminder notice to pay an amount of annual contribution or special levy given by the Fund Manager under section 75 of the ESOS Act (section 90 ESOS Act.

The effect of suspension for a provider whose registration is suspended for a course for a State is that the provider must not:

  • recruit or enrol any overseas students or intending overseas students for the course provided by the provider in that State; or
  • solicit or accept any money from an overseas student or an intending overseas student for the course provided by the provider in that State; or
  • permit an accepted student to begin the course in that State, if an accepted student of the provider has not begun the course.

Cancellation

Under section 83 of the ESOS Act, the Minister may cancel a registered provider’s registration for any one or more courses for any one or more States if the provider:

  • is breaching, or has breached, the ESOS Act, the National Code, or a condition on the provider’s registration; or
  • might not be able to provide courses or refund money to accepted students because of financial difficulty or any other reason; or
  • is engaging, or has engaged, in misleading or deceptive conduct in connection with recruitment or courses; or
  • if the provider ceases to provide courses while the provider is suspended.

A provider’s registration for a course is automatically cancelled if:

  • a designated authority for a State cancels the approval of that course for the provider (section 91 of the ESOS Act); or,
  • in the case of an individual, the provider becomes bankrupt, or, in the case of a body corporate, if a winding-up order is made in respect of a provider (section 92 ESOS Act).

The effect of cancellation is that the name and all other particulars in relation to the provider will be removed from CRICOS.

Offences

The breach of certain provisions of the ESOS Act or the National Code may be a criminal offence. For example:

  • breach of information provision requirements (subsection 19(1) ESOS Act) - maximum penalty: 60 penalty units;
  • breach of information provision requirements concerning breach by accepted student of student visa condition relating to attendance or academic performance (subsection 19(2) ESOS Act) - maximum penalty: 60 penalty units;
  • breach of requirement to send accepted student notice of visa breaches (section 20 ESOS Act ) - maximum penalty: 60 penalty units;
  • breach of record keeping requirement (section 21 ESOS Act) maximum penalty: 60 penalty units;
  • providing false or misleading information (section 108 ESOS Act) - maximum penalty: imprisonment 12 months;
  • changes to provider details (paragraph 14 National Code) maximum penalty - 10 penalty units;
  • marketing information (paragraph 21 National Code) maximum penalty - 1 penalty unit.

A penalty unit is currently $110 for an individual; and penalty units are multiplied by 5 for corporate providers (section 4AA of the Crimes Act 1914).

Infringement notices

Under section 106 of the ESOS Act, the Minister may give a registered provider an infringement notice seeking payment of a penalty as an alternative to prosecution for offences for breaches of sections 104(1) or 105 of the ESOS Act.

Section 104(1) requires that a provider give the Secretary information about accepted students within 14 days when specified events occur (see subsection 19(1) ESOS Act) - maximum penalty: 4 penalty units by infringement notice; 60 penalty units if dealt with by a court (for an individual).

Section 105 requires providers to keep records of each accepted student (see section 21 ESOS Act) - maximum penalty: 4 penalty units by infringement notice; 60 penalty units if dealt with by a court (for an individual).

The time for payment of an infringement notice is 28 days.

Providers who choose to pay the infringement penalty are discharged from any further liability for the offence. Payment of an infringement penalty does not count as conviction for an offence.

Powers to investigate

DEEWR has a range of monitoring and investigation powers to ensure compliance with the ESOS Act and the National Code. These powers are exercisable in regard to a monitoring purpose, or to locate evidential material.

Production notices

Where the Secretary of DEEWR (or Secretary’s delegate) believes an individual has, or has access to, information or documents that are relevant to a monitoring purpose, the Secretary may issue a written notice requiring the individual to:

  • give information or documents relevant to a monitoring purpose to an authorised employee; or
  • show such documents to an authorised employee; or
  • make copies of documents and give the copies to an authorised employee.

Examples of the types of information or documents that may be requested include student records, students’ addresses, academic transcripts, student attendance records and the provider’s business record as they relate to the obligations of the ESOS Act or the National Code.

It is an offence to fail to comply with a Production Notice, give false or misleading information, or provide a false or misleading document.

Attendance notices

Where the Secretary of DEEWR believes an the individual has, or has access to, information or documents that are relevant to a monitoring purpose, the Secretary may issue a written notice requiring the individual to attend before an authorised employee and answer questions about the matter.

It is an offence to fail to comply with an Attendance Notice, give false or misleading information, or provide a false or misleading document.

Monitoring powers

An authorised employee of DEEWR may enter premises occupied by a registered provider for the purpose of providing courses, or any premises that there might be a thing or activity that is relevant to a monitoring purpose (section 130 ESOS Act). Authorised employees can only do this if the occupier of the premises has consented and the employee has shown his/her identity card if requested, or the authorised employee is entering under a monitoring warrant.

An authorised employee may use such assistance and force as is necessary and reasonable to enter premises and may, where relevant to a monitoring purpose:

  • search the premises for any thing;
  • examine any such thing;
  • examine any activity;
  • take photographs or make video or audio recordings;
  • inspect, take extracts or make copies of any document;
  • ask questions;
  • secure things until a search warrant is obtained to seize them;
  • take onto the premises any equipment or materials required to exercise monitoring powers; and
  • operate facilities and equipment.

Under section 134 of the ESOS Act, it is an offence with a maximum penalty of imprisonment for 6 months to fail to answer questions or to give or show documents to an authorised employee who is authorised to enter the premises by a monitoring warrant. However a person in this situation will not be guilty of an offence if, in answering a question or giving a document they might tend to incriminate themselves or expose themselves to a penalty (subsection 134(2) ESOS Act).

Under sections 135 and 136 of the ESOS Act, it is an offence with a maximum penalty of imprisonment for 12 months to give false or misleading material when answering questions or to give or show documents that are false or misleading in material particulars to an authorised employee who is authorised to enter the premises by a monitoring warrant.

Search powers

An authorised employee may enter any premises if it is suspected that there may be evidential material on the premises. Authorised employees can only do this if the occupier of the premises has consented and the authorised employee has shown his/her identity card (if requested), or the authorised employee is entering under a search warrant.
An authorised employee may use such assistance and force as is necessary and reasonable to enter premises and may:

  • search the premises for evidential material;
  • examine the evidential material;
  • take photographs or make video or audio recordings or sketches on the premises of the evidential material;
  • inspect any documentary evidential material;
  • take extracts from or make copies of the evidential material;
  • take onto the premises any equipment and materials that the authorised employee requires for the purpose of exercising powers in relation to the premises;
  • operate equipment on premises to determine whether it contains evidential material; and
  • seize equipment containing evidential material.

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