Part 3Obligations on registered providers

## Part 1—Introduction #### 1.01 Name of Regulations These Regulations are the Education Services for Overseas Students Regulations 2001. #### 1.02 Commencement These Regulations commence on 4 June 2001. #### 1.03 Definitions In these Regulations: > Act means the Education Services for Overseas Students Act 2000. > agreed starting day, for a course provided to a student, means the day on which the course is scheduled to start, or a later day agreed between the provider for the course and the student. > confirmation of enrolment means the information a registered provider must give under section 19 of the Act when a person becomes an accepted student of the provider. > non‑government school means a school in a State that is not conducted by or on behalf of the Government of a State, but does not include a school conducted for profit. > PRISMS (Provider Registration and International Student Management System) means the electronic system of that name used to process information given under section 19 of the Act. > public provider means: (a) a government school; or (b) a vocational education and training institution that is owned or controlled (whether directly or indirectly) by a State or Territory; or (c) a Table A provider within the meaning of the Higher Education Support Act 2003. > student visa means a visa of a subclass mentioned in the definition of student visa in regulation 1.03 of the Migration Regulations 1994, whenever granted, other than: (a) a visa granted to: (i) a Foreign Affairs student (within the meaning of the Migration Regulations 1994); or (ii) a Defence student (within the meaning of the Migration Regulations 1994); or (b) a visa granted to a person who satisfies the secondary criteria, but not the primary criteria, under the Migration Regulations 1994 for the grant of the visa; or (c) a visa granted to a person as a secondary exchange student within the meaning of the Migration Regulations 1994; or (d) a visa granted to a person as an overseas student who has been approved under a scholarship scheme, or an exchange scheme, sponsored by the Commonwealth to undertake a course of study or training in Australia. > university means an institution of higher education specified in Table A of the definition of institution in subsection 4(1) of the Higher Education Funding Act 1988. > Note: For the definitions of the following terms, see section 5 of the Act: (a) accepted student; (b) authorised officer; (c) course; (d) ESOS agency; (e) overseas student; (f) provide; (g) provider; (h) Register; (i) registered provider; (j) tuition fees. #### 2.01 Information to be entered on the Register (1) For paragraph 14A(4)(i) of the Act, the following information must be entered on the Register for each provider registered to provide a course or courses at a location or locations: (a) the address of the provider’s place of business; (b) if the provider is not an individual—the address of the provider’s registered office; (c) the provider’s postal address (if different from the address mentioned in paragraph (a) or (b)); (d) the provider’s telephone number and e‑mail address (if any); (e) the provider’s Australian Business Number or Australian Company Number; (f) the provider’s trading name or names; (g) the estimated annual number of full‑time equivalent domestic students enrolled with the provider, excluding students enrolled for online study only; (h) the maximum number of overseas students, approved by the ESOS agency for the provider, to whom the provider may provide the course or courses. (2) For paragraph 14A(4)(i) of the Act, the information that must be entered on the Register for each course that the provider mentioned in subregulation (1) is registered to provide is: (a) the level and field of study of the course; and (aa) the duration of the course, including any holiday breaks; and (b) the estimated total of the tuition fees payable by a student for the course; and (c) the estimated total of the non‑tuition fees payable by a student for the course; and (d) whether the provider only accepts payment in arrears; and (e) each location where the course will be provided, including: (i) the address of the location; and (ii) the period of approval for the course at the location; and (iii) the telephone number, email address (if any) and primary contact, for the location; and (iv) the maximum number of students on a student visa to whom the provider may provide the course in the location; and (f) whether the course is provided: (i) by the owner‑operator of the provider mentioned in subregulation (1); or (ii) under an arrangement with another registered provider; or (iii) under an arrangement with a non‑registered provider. > Note: Examples of levels of study of courses for paragraph (a): 1 Primary. 2 Secondary. 3 Diploma. 4 Bachelor degree. 5 Masters coursework. 6 PhD. 7 Non award. 8 Foundation studies. 9 English language intensive courses for overseas students. > Note: Examples of fields of study of courses for paragraph (a): 1 Business administration. 2 English language study. 3 Visual and performing arts. 4 Education. ## Part 3—Obligations on registered providers ### Division 3.1—Information and records #### 3.01 Prescribed details about accepted students For paragraph 19(1)(a) of the Act, the following details are prescribed for a person who becomes an accepted student of a provider: (a) the student’s full name; (b) the student’s gender; (c) the student’s date of birth; (d) the student’s country of birth; (e) the student’s nationality; (ea) if the student is under 18 years old: (i) the current residential address, mobile phone number (if any) and email address (if any) of a person other than the provider who has legal authority to act on the student’s behalf; and (ii) the relationship of the person to the student; > Note: Example: A parent or guardian. (f) the unique identifier of the student’s course and its location; (g) the agreed starting day of the course; (h) the day when the student is expected to complete the course; (i) the amount of tuition fees that the provider received for the student for the course before confirming the student’s enrolment using PRISMS; (ia) if the provider is not a public provider—the start and end dates of the period to which the amount mentioned in paragraph (i) relates; (ib) the amount of non‑tuition fees that the provider received for the student for the course before confirming the student’s enrolment using PRISMS; (j) the total amount of tuition fees that the student is required to pay to the provider to undertake the full course in accordance with the written agreement entered into with the student; (l) if the student has undertaken a test specified in a legislative instrument made for paragraph 476.213(a) or 485.212(a) of Schedule 2 to the Migration Regulations 1994 to determine the student’s level of comprehension of English, the name of the test and the score the student received for the test; (n) if the student was in Australia when he or she became an accepted student, the number of the student’s passport; (o) if the student holds an Australian visa, the number of the visa. #### 3.02 Prescribed information about accepted students who do not begin courses when expected (1) For paragraph 19(1)(c) of the Act, the following information is prescribed for an accepted student who does not begin his or her course when expected: (a) the information mentioned in paragraphs 3.01(a) to (h) for the student (if the provider has not already given that information using PRISMS); (b) the student’s current residential address, mobile phone number (if any) and email address (if any) (if the student has given that information to the provider). (2) However, the information need not be given about an accepted student if, before the student’s expected starting day: (a) the student asks the provider for a later starting day; and (b) the request is made on health or compassionate grounds; and (c) the provider agrees to a later starting day for the student. #### 3.03 Other prescribed matters relating to accepted students (1) For paragraph 19(1)(f) of the Act, the following are prescribed matters relating to an accepted student who terminates his or her studies before the course is completed: (a) the information mentioned in paragraphs 3.01(a) to (h) for the student (if the provider has not already given that information using PRISMS); (b) the student’s current residential address, mobile phone number (if any) and email address (if any) (if the student has given that information to the provider). (2) For paragraph 19(1)(f) of the Act, the following are prescribed matters relating to an accepted student who changes his or her course, or whose course changes in duration: (a) the information mentioned in paragraphs 3.01(a) to (h) for the student (if the provider has not already given that information using PRISMS); (b) the student’s current residential address, mobile phone number (if any) and email address (if any) (if the student has given that information to the provider). (2A) For paragraph 19(1)(f) of the Act, the following are prescribed matters relating to an accepted student where the location at which the student’s course is provided changes: (a) the information mentioned in paragraphs 3.01(a) to (h) for the student (if the provider has not already given that information using PRISMS); (b) the student’s current residential address, mobile phone number (if any) and email address (if any) (if the student has given that information to the provider). (3) For paragraph 19(1)(f) of the Act, the following are prescribed matters relating to an accepted student whose studies have been deferred or suspended: (a) the proposed duration of any deferment of studies; (b) the proposed duration of any suspension of studies. (4) For paragraph 19(1)(f) of the Act, the following are prescribed matters relating to an accepted student whose studies have been suspended or deferred by the provider or at the request of the student: (a) any change to the proposed end date of the deferment of studies; (b) any change to the proposed end date of the suspension of studies. (5) For paragraph 19(1)(f) of the Act, the following are prescribed matters relating to an accepted student of a provider that is not a public provider, for whom the provider receives tuition fees during a calendar month: (a) the amount of each payment made; (b) the date the payment was made; (c) the start and end dates of the period to which the payment relates. #### 3.03A Prescribed condition of student visa For subsections 19(2) and 20(1) of the Act, a prescribed condition of a student visa is visa condition 8202, set out in Schedule 8 to the Migration Regulations 1994. > Note: Subsection 19(2) of the Act requires a registered provider to give particulars of any breach by an accepted student of a prescribed condition of a student visa. Under subsection 19(3) of the Act, the information must be entered in the computer system established by the Secretary under section 109 of the Act. #### 3.04 Details of which a registered provider must keep records For subsection 21(2) of the Act, the records of each accepted student who is enrolled with a provider or who has paid any tuition fees for a course provided by the provider must include the following details: (a) the amount of money that the student has paid to the provider, including the separate identification of tuition fees and non‑tuition fees; (b) for an amount of tuition fees that the student has paid to the provider for a course: (i) whether the amount was paid for the full course or part of the course; and (ii) if the amount was paid for the full course, the duration of the course; and (iii) if the amount was paid for part of the course, the duration of that part of the course; (c) copies of written agreements to which the provider and student are parties; (d) any amounts that: (i) have become payable, directly or indirectly, to the provider by the student for the student to undertake a course; and (ii) have not been paid; (e) the amount that a student will be charged to access the student’s records. #### 3.05 Electronic records If records kept for the purpose of section 21 of the Act are kept electronically, they must be backed up. #### 3.06 Fees for accessing records The fee for a student to access a record mentioned in regulation 3.04 must not exceed the cost incurred by the provider in providing access to that record. ## Part 6—Enforcement—infringement notices #### 6.01 Purpose of Part 6 For section 106 of the Act, this Part provides a procedure under which a registered provider who is alleged to have committed an offence to which section 106 of the Act applies may, as an alternative to having the matter dealt with by a court, dispose of the matter by payment of a monetary penalty (an infringement notice penalty) specified in a notice (an infringement notice) served on the provider. #### 6.02 Infringement notices (1) If there are reasonable grounds for believing that a registered provider has committed an offence to which section 106 of the Act applies, the ESOS agency for the provider may serve an infringement notice, or cause an infringement notice to be served, on the provider in accordance with regulation 6.03. (2) The notice must set out the following information: (a) the name of the provider served and the address of the provider’s place of business; (b) the provision of the Act that it is alleged has been contravened; (c) details of the alleged offence, including the day, and (if appropriate) the time, on which it is alleged to have been committed; (d) the maximum penalty that may be imposed by a court for the offence; (e) the amount payable as the infringement notice penalty; (f) a statement that, if the provider prefers that the matter not be dealt with by a court, the provider may signify that preference by paying the infringement notice penalty: (i) before the end of 28 days after the day the notice is served; or (ii) if a further period is allowed by the ESOS agency under regulation 6.04—before the end of that further period; or (iii) if payment by instalments is permitted under regulation 6.05—in accordance with the permission; (g) how, and where, the infringement notice penalty may be paid; (h) a statement that if, before the end of 28 days after service of the notice, the provider notifies the ESOS agency, in the manner set out in the infringement notice, of any facts or matters that the provider believes ought to be taken into account in relation to the alleged offence: (i) time for payment of the penalty will be extended to the extent necessary to enable a decision to be made about those facts or matters; and (ii) the ESOS agency must consider the matters mentioned in subregulation 6.06(5); (i) a statement of the matters, mentioned in subregulation 6.06(5), that the ESOS agency must consider; (j) a statement that, if the infringement notice penalty is paid in time: (i) the provider’s liability for the offence is discharged; and (ii) further proceedings cannot be taken against the provider for the offence; and (iii) the provider is not taken to have been convicted of the offence; (k) a statement to the effect that, if none of the things mentioned in paragraph (f) or (h) is done within the time specified, the provider may be prosecuted for the alleged offence; (l) the name of the person who serves the notice. (3) An infringement notice may contain any other information that the ESOS agency considers necessary. (4) The notice must be served on the provider not more than 12 months after the alleged commission of the offence. > Note: The infringement notice penalty in respect of an offence is: (a) for an individual—4 penalty units; or (b) for a body corporate—20 penalty units. See Act, subsection 106(2). #### 6.03 Service of infringement notices (1) An infringement notice may be served on an individual: (a) personally; or (b) by sending it by pre‑paid post to the last‑known place of residence or business of the individual; or (c) by leaving the notice: (i) at the last‑known place of residence or business of the individual; and (ii) with a person, apparently over the age of 16 years, who appears to live or work at the place. (2) An infringement notice may be served on a body corporate: (a) by sending it by pre‑paid post to the last‑known place of business or the registered office of the body corporate; or (b) by leaving the notice: (i) at the last‑known place of business or the registered office of the body corporate; and (ii) with a person, apparently over the age of 16 years, who appears to live or work at the place. #### 6.04 Extension of time to pay (1) On written application by a provider on whom an infringement notice has been served, the ESOS agency for the provider may grant, if satisfied that in all the circumstances it is reasonable to do so, a further period for payment of the infringement notice penalty, whether or not the period of 28 days after the date of service of the notice has ended. (2) If application is made after the end of the 28 day period, the application must include an explanation why the alleged offender could not deal with the notice within that period. (3) The ESOS agency must: (a) grant or refuse a further period; and (b) give the applicant written notice of the decision; and (c) if the decision is a refusal—mention in the notice the reasons for refusal. (4) The provider must pay the penalty: (a) if a further period is granted—before the end of that period; or (b) if the decision is a refusal—before the end of the later of: (i) 7 days after receiving notice of the refusal; or (ii) the 28 day period. #### 6.05 Payment by instalments (1) If: (a) an infringement notice has been served on a provider; and (b) the ESOS agency for the provider is satisfied that in all the circumstances it is proper to do so; the ESOS agency may make an arrangement with the provider (whether or not the period of 28 days after the date of service of the notice has ended) for the payment of the amount of the infringement notice penalty by instalments. (2) The ESOS agency must: (a) grant or refuse to make an arrangement; and (b) give the provider written notice of the decision; and (c) if the decision is a refusal—mention in the notice the reasons for refusal. (3) The provider must pay the penalty: (a) if an arrangement is made—in accordance with the arrangement; or (b) if the decision is a refusal—before the end of the later of: (i) the 28 day period; and (ii) 7 days after receiving notice of the refusal. #### 6.06 If infringement notice disputed (1) If: (a) an infringement notice has been served on a provider; and (b) the ESOS agency for the provider is satisfied that in all the circumstances it is proper to do so; the ESOS agency may withdraw the notice (whether or not the ESOS agency has received a notice under paragraph 6.02(2)(h)). (2) If, before the end of 28 days after receiving an infringement notice, a provider gives the ESOS agency for the provider notice under paragraph 6.02(2)(h), the ESOS agency must decide whether to withdraw the infringement notice. (3) The ESOS agency must: (a) withdraw, or refuse to withdraw, the notice; and (b) give the provider written notice of the decision; and (c) if the decision is a refusal—mention in the notice the reasons for refusal. (4) If the ESOS agency decides to refuse to withdraw an infringement notice, notice of that decision must state that: (a) if the amount of the infringement notice penalty is paid within 28 days after notice of the decision is given to the provider, the provider will not be prosecuted for the alleged offence; and (b) if that amount is not paid in accordance with paragraph (a), the provider may be prosecuted for the alleged offence. (5) In making a decision, the ESOS agency must consider: (a) the facts or matters set out in the notice (if any) given under paragraph 6.02(2)(h); and (b) the circumstances in which the offence mentioned in the notice is alleged to have been committed; and (c) whether the provider has been convicted previously of an offence to which section 106 of the Act applies; and (d) whether an infringement notice has previously been given to the provider for an offence of the same kind as the offence mentioned in the notice; and (e) any other matter the ESOS agency considers relevant to the decision. > Note: Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them. #### 6.07 Payment of penalty if infringement notice not withdrawn If: (a) an infringement notice has been served on a provider; and (b) the ESOS agency for the provider refuses to withdraw the infringement notice; the provider must pay the infringement notice penalty before the end of 28 days after receiving notice of the refusal. #### 6.08 Effect of payment of infringement notice penalty (1) If a provider, who is served with an infringement notice, pays the infringement notice penalty in accordance with this Part: (a) the provider’s liability in respect of the offence is discharged; and (b) further proceedings cannot be taken against the provider for the offence; and (c) the provider is not convicted of the offence. (2) Subregulation (1) applies to a provider who makes an arrangement to pay the infringement notice penalty by instalments, only if the provider makes payments in accordance with the arrangement. #### 6.09 Admissions under paragraph 6.02(2)(h) Evidence of an admission made by a provider in a notice under paragraph 6.02(2)(h) is inadmissible in proceedings against the provider for the alleged offence. #### 6.10 Matter not to be taken into account in determining sentence (1) This regulation applies if a provider served with an infringement notice: (a) elects not to pay the infringement notice penalty; and (b) is prosecuted for, and convicted of, the alleged offence mentioned in the infringement notice. (2) In determining the penalty to be imposed, the court must not take into account the fact that the provider chose not to pay the infringement notice penalty. #### 6.11 Evidence for hearing (1) At the hearing of a prosecution for an offence mentioned in an infringement notice, the following certificates are evidence of the facts stated in the certificate: (a) a certificate signed by an authorised officer of the ESOS agency for the alleged offender and stating that: (i) the infringement notice was served on the alleged offender; and (ii) the infringement notice penalty has not been paid in accordance with this Part; (b) a certificate signed by an authorised officer of the ESOS agency for the alleged offender and stating that the notice was withdrawn on a day specified in the certificate; (c) a certificate signed by an authorised officer of the ESOS agency for the alleged offender and stating that: (i) a further period was refused, under regulation 6.04, for payment of the infringement notice penalty; and (ii) the infringement notice penalty has not been paid in accordance with this Part; (d) a certificate signed by an authorised officer of the ESOS agency for the alleged offender and stating that: (i) for regulation 6.04, the further time mentioned in the certificate for payment of the infringement notice penalty was granted; and (ii) the infringement notice penalty was not paid in accordance with the notice or within the further time. (2) A certificate that purports to have been signed by an authorised officer of the ESOS agency for the alleged offender is taken to have been signed by that authorised officer unless the contrary is proved. #### 6.12 Payment of penalty by cheque If a cheque is given to the Commonwealth in payment of all or part of the amount of an infringement notice penalty, the payment is taken not to have been made unless the cheque is honoured on presentation. #### 6.13 Infringement notice not compulsory, etc Nothing in this Part is to be taken: (a) to require that a provider suspected of having committed an offence to which section 106 of the Act applies be served an infringement notice; or (b) to affect the liability of a provider to be prosecuted for an alleged offence, if: (i) an infringement notice is not served on the provider for the offence; or (ii) an infringement notice is served, and withdrawn; or (c) to limit the penalty that may be imposed by a court on a provider convicted of an offence. > Note: Part 7 has been reserved for future use.