Education Providers Registration (Overseas Students) Act 1991
An Act to regulate the provision of educational services offered to certain overseas students, to provide for the registration of persons and bodies offering those educational services and to provide for the registration of courses and services offered to certain overseas students
[Royal Assent 18 December 1991]
Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:
PART 1 - Preliminary
This Act may be cited as the Education Providers Registration (Overseas Students) Act 1991 .
This Act commences on 1 January 1991, but if this Act does not receive the Royal Assent on or before that day, this Act is deemed to have commenced on that day.
In this Act, unless the contrary intention appears –authorized officer means the Secretary or a person declared or appointed to be an authorized officer under section 24 ;certificate of registration means a certificate of registration issued under section 16 ;education provider means a person who, or a body, organization or association which, provides an education service;education service means any instruction, training or prescribed means of education, whether given as a course or otherwise;enrol means to enrol a person for the purposes of providing the person with an education service;overseas student means a student in relation to whom a fee is paid for an education service, but does not include –(a) an Australian citizen or the dependant of an Australian citizen; or(b) a New Zealand citizen or the dependant of a New Zealand citizen; or(c) a permanent resident in Australia or the dependant of such a permanent resident; or(d) a refugee;registered means registered under this Act;registered education provider means an education provider which has been granted registration under section 8 ;registered education service means an education service which has been granted registration under section 13 ;regulations means regulations made and in force under this Act;Secretary means the Secretary of the Department.
(1) This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, the Crown in all its other capacities.(2) Nothing in this Act renders the Crown in right of Tasmania liable to be prosecuted for an offence against this Act.
PART 2 - Prohibitions Relating to Unregistered Person, &c.
5. Prohibitions relating to unregistered person, &c.
(1) An education provider which is not registered shall not –(a) enrol an overseas student; or(b) offer to, or enter into an agreement to, enrol an overseas student; or(c) advertise any education service for overseas students; or(d) provide any education service for overseas students.Penalty: Fine not exceeding 200 penalty units or imprisonment for a term not exceeding 3 years, or both.(2) An education provider which is registered shall not –(a) enrol an overseas student for an education service that is not registered; or(b) offer to, or enter into an agreement to, enrol an overseas student for such an education service; or(c) advertise such an education service for overseas students; or(d) provide such an education service for overseas students.Penalty: Fine not exceeding 200 penalty units or imprisonment for a term not exceeding 3 years, or both.
PART 3 - Registration
Division 1 - Registration of education provider
6. Application for registration of education provider
(1) An education provider which proposes to provide an education service for overseas students may apply to the Secretary for registration.(2) An application shall –(a) be in a form approved by the Secretary; and(b) include details relating to the matters specified in section 8 (2) ; and(c) be accompanied by the prescribed fee, if any.(3) On receipt of an application, the Secretary may require the education provider to provide such information and documents as the Secretary considers relevant to the application.(4) An education provider shall provide any information and documents required by the Secretary under subsection (3) .(5) An applicant shall notify the Secretary of any change which affects the information included in an application or provided under subsection (4) immediately after the change has occurred.
7. Recommendation of Secretary
The Secretary shall –(a) forward an application for registration made under section 6 to the Minister; and(b) provide the Minister with the recommendations of the Secretary in relation to the application.
8. Grant of registration of education provider
(1) On receiving an application made under section 6 , the Minister may grant or refuse to grant registration of the education provider.(2) In determining whether to grant registration, the Minister shall consider –(a) the financial viability of the education provider; and(b) the safeguards provided by the education provider in respect of any fees paid in relation to an overseas student in the event of –(i) the closure of the education service; or(ii) [Section 8 Subsection (2) amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] the education provider becoming bankrupt, applying to take the benefit of any law for the relief of bankrupt or insolvent debtors, becoming subject to external administration under the Corporations Act, compounding with creditors or making an assignment of its remuneration or estate for the benefit of creditors; and(c) the facilities provided for overseas students; and(d) the support services provided by the education provider to overseas students, including any orientation service, assistance in finding accommodation, counselling service and the procedures for resolving the grievances of students; and(e) the systems provided by the education provider to monitor its compliance with any conditions to which the registration would be subject; and(f) the financial systems of the education provider in respect of any fees paid to the education provider in relation to the accommodation or living expenses of overseas students.(3) The Minister may grant registration of an education provider –(a) for a period not exceeding 3 years; and(b) subject to such conditions as are determined by the Minister and specified in the certificate of registration.(4) The Minister shall notify the education provider, in writing, of the decision made under subsection (1) .
9. Conditions of registration of education provider
(1) The conditions to which registration may be subject may include any one or more of the following conditions:(a) that the education provider shall hold –(i) a policy of indemnity insurance approved by the Minister; or(ii) a guarantee approved by the Minister;(b) that the education provider shall participate in an indemnity scheme approved by the Minister;(c) that any fees paid in relation to an overseas student shall be paid into such accounts and trust accounts as are approved by the Minister;(d) that the education provider shall have the accounting and financial records relating to overseas students audited by an auditor who is a member of The Institute of Chartered Accountants in Australia, the Australian Society of Accountants or any other prescribed body in accordance with any prescribed audit requirements.(2) A registered education provider shall comply with the conditions to which registration is subject.Penalty: Fine not exceeding 50 penalty units.
10. Re-applying for registration of education provider
(1) In this section, expiry day means the day on which the period of registration of an education provider ends.(2) A registered education provider may re-apply for registration –(a) under section 6 ; and(b) within the period of 90 days before the expiry day.(3) Where –that registration takes effect on the day after the expiry day.(a) a registered education provider has re-applied for registration within the period specified in subsection (2) (b) ; and(b) the Minister grants that registration –(4) Where –the education provider shall be deemed to be registered until the Minister has granted or refused to grant that registration or the application is withdrawn.(a) a registered education provider has re-applied for registration within the period specified in subsection (2) (b) ; and(b) the Minister has not granted or refused to grant that registration on or before the expiry day; and(c) the application for registration has not been withdrawn –(5) Where the Minister, on a day later than the expiry day, refuses to grant the registration of an education provider, that refusal shall take effect on the day specified in the notice notifying the education provider of that refusal.
Division 2 - Registration of education service
11. Application for registration of education service
(1) An education provider which proposes to provide an education service for overseas students may apply to the Secretary for registration of that education service.(2) An application shall –(a) be in a form approved by the Secretary; and(b) include details relating to the matters specified in section 13 (2) ; and(c) be accompanied by the prescribed fee, if any.(3) An application under this section may be combined with an application under section 6 .(4) On receipt of an application, the Secretary may require the education provider to provide such information and documents as the Secretary considers relevant to the application.(5) An education provider shall provide any information and documents required by the Secretary under subsection (4) .(6) An applicant shall notify the Secretary of any change which affects the information included in an application or provided under subsection (5) immediately after the change has occurred.
12. Recommendation of Secretary
The Secretary shall –(a) forward an application made under section 11 to the Minister; and(b) provide the Minister with the recommendations of the Secretary in relation to the application.
13. Grant of registration of education service
(1) On receiving an application made under section 11 , the Minister may grant or refuse to grant registration of the education service.(2) In determining whether to grant registration of an education service, the Minister shall consider –(a) the ability of the education provider to provide the education service; and(b) whether the fee proposed to be charged in relation to the education service complies with the guidelines for the imposition of fees in respect of overseas students issued under the Higher Education Funding Act 1988 of the Commonwealth in relation to such an education service.(3) The Minister may grant registration of an education service –(a) for a period not exceeding the period for which the education provider is registered; and(b) subject to such conditions as are determined by the Minister and specified in the certificate of registration.(4) The Minister shall notify the education provider, in writing, of the decision made under subsection (1) .
14. Conditions of registration of education service
A registered education provider shall comply with the conditions to which the registration of an education service provided by that education provider is subject.Penalty: Fine not exceeding 50 penalty units.
15. Re-applying for registration of education service
(1) In this section, expiry day means the day on which the period of registration of an education service ends.(2) A registered education provider may re-apply for registration of a registered education service –(a) under section 11 ; and(b) within the period of 90 days before the expiry day.(3) Where –that registration takes effect on the day after the expiry day.(a) a registered education provider has re-applied for the registration of an education service within the period specified in subsection (2) (b) ; and(b) the Minister grants that registration –(4) Where –the education service shall be deemed to be registered until the Minister has granted or refused to grant that registration or the application is withdrawn.(a) a registered education provider has re-applied for the registration of an education service within the period specified in subsection (2) (b) ; and(b) the Minister has not granted or refused to grant that registration on or before the expiry day; and(c) the application for registration has not been withdrawn –(5) Where the Minister, on a day later than the expiry day, refuses to grant the registration of an education service, that refusal shall take effect on the day specified in the notice notifying the education provider of that refusal.
Division 3 - Certificate of registration
16. Issue of certificate of registration
Upon payment of the prescribed fee, if any, the Secretary shall issue a certificate of registration to an education provider which has been granted registration under section 8 .
17. Authority of registration of education provider
Registration of an education provider, while it is in force, authorizes the registered education provider to provide, offer and advertise a registered education service to overseas students –(a) subject to and in accordance with the conditions to which the registration of the education provider is subject; and(b) subject to and in accordance with the conditions to which the registration of the education service is subject.
18. Surrender of certificate of registration
(1) A registered education provider may surrender a certificate of registration by delivering it to the Secretary together with a notice, in writing, authorizing the Secretary to cancel the registration of the education provider.(2) On receiving a certificate of registration and a notice under subsection (1) , the Secretary shall cancel the registration of the education provider.
19. Cancellation of registration, &c.
(1) Where disciplinary action is required, the Minister may –(a) reprimand a registered education provider; or(b) reprimand a registered education provider and vary the conditions to which the registration of the education provider or an education service is subject; or(c) cancel the registration of an education provider or an education service.(2) For the purposes of subsection (1) , disciplinary action is required where –(a) the registered education provider obtained registration under section 8 or 13 improperly; or(b) the registered education provider, or a person acting with the authority of the registered education provider, has been convicted of an offence against any law in relation to any dealings by the registered education provider or that person with, or in relation to, an overseas student; or(c) the registered education provider has failed to comply with a condition to which the registration of the education provider or the education service is subject; or(d) the Minister considers the exercise of a power under subsection (1) would be in the public interest.(3) The Minister shall not exercise a power under subsection (1) unless the Minister has first afforded the registered education provider an opportunity to make submissions.(4) Where the Minister has varied the conditions to which the registration of a registered education provider or a registered education service is subject or cancelled that registration, the Minister shall notify the registered education provider, in writing, of that variation or cancellation.(5) A variation of conditions or a cancellation of registration under this section takes effect on the day specified in the notice referred to in subsection (4) .(6) Where the Minister has cancelled the registration of an education provider or an education service, the education provider shall not re-apply for registration or for the registration of that education service within the period specified in the notice referred to in subsection (4) .(7) Where the Minister has cancelled the registration of an education provider or an education service, the Minister may –(a) arrange for any overseas student being provided with an education service by that education provider, or with that education service whose registration has been cancelled, to be provided with a similar education service by another registered education provider or an education provider in another State or a Territory of the Commonwealth; and(b) require that education provider to make such refund in relation to any fees paid in relation to an overseas student as the Minister determines to be appropriate.(8) An education provider shall comply with a requirement under subsection (7) (b) to make a refund.Penalty: Fine not exceeding 100 penalty units.(9) Where the Minister has cancelled the registration of an education provider, the Minister may require that education provider to surrender its certificate of registration to the Secretary.(10) An education provider shall comply with a requirement to surrender its certificate of registration made under subsection (9) .Penalty: Fine not exceeding 25 penalty units.
20. Amendment, &c., of certificate of registration
(1) The Secretary may require a registered education provider to deliver to the Secretary its certificate of registration where –(a) the conditions to which the registration of the education provider or an education service provided by the education provider is subject have been varied under section 19 ; or(b) the registration of an education service provided by the education provider has been cancelled under section 19 ; or(c) an education service to be provided by the education provider has been granted registration under section 13 ; or(d) the term of registration of a registered education service ends and that education service is not registered again.(2) A registered education provider shall comply with a requirement under subsection (1) .Penalty: Fine not exceeding 25 penalty units.(3) The Secretary may amend a certificate of registration delivered to the Secretary under this section.(4) In subsection (3) , amend includes –(a) omitting any matter; and(b) inserting any matter; and(c) omitting any matter and substituting other matter; and(d) cancelling the certificate of registration and issuing another certificate of registration.(5) The Secretary shall provide the registered education provider with the amended certificate of registration.
Division 4 - Miscellaneous
[Section 21 Substituted by No. 73 of 2001, Sched. 1, Applied:01 Jul 2002] An education provider aggrieved by the refusal of the Minister to grant –may apply to the Magistrates Court (Administrative Appeals Division) for a review of the refusal.(a) registration of the education provider; or(b) registration of an education service –
(1) A registered education provider shall keep such records as may be prescribed by the regulations in relation to –(a) overseas students; and(b) fees paid in respect of overseas students; and(c) registered education services provided or advertised to overseas students.Penalty: Fine not exceeding 25 penalty units.(2) A registered education provider shall provide the Secretary with such returns and such copies of the records as the Secretary may require.Penalty: Fine not exceeding 25 penalty units.
(1) The Secretary shall keep a register of registered education providers and the registered education services provided for, or offered to, overseas students by those education providers.(2) The register shall be made available at all reasonable times for inspection by any person.
PART 4 - Authorized Officers
(1) The Secretary is an authorized officer for the purposes of this Act.(2) [Section 24 Subsection (2) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] The Minister may declare that State Service officers and State Service employees who hold the appointments specified in the declaration are authorized officers for the purposes of this Act.
25. Functions of authorized officer
An authorized officer shall carry out any investigation or inquiry that is necessary or desirable for the purposes of –(a) allowing the Secretary to make a recommendation under section 7 or 12 ; or(b) informing the Minister of all relevant matters in relation to an application for registration made under section 6 or 11 ; or(c) informing the Minister of all relevant matters in relation to the necessity or desirability of taking disciplinary action under section 19 and the taking of that disciplinary action; or(d) determining whether an education provider is contravening section 5 ; or(e) determining whether a registered education provider is complying with this Act and any conditions to which the registration of the registered education provider or a registered education service offered by it is subject; or(f) detecting any offence against this Act.
26. Powers of authorized officer
(1) For the purpose of carrying out an investigation or inquiry under this Act, an authorized officer may do any or all of the following things at all reasonable times:(a) enter any place which the authorized officer knows or reasonably believes is used by an education provider in relation to the provision of an education service;(b) enter any place which the authorized officer knows or reasonably believes is used by an education provider as an office;(c) in any place lawfully entered, search for, examine, take possession of, make copies of or take extracts from any documents or other records –(i) relating to the provision of education services or accommodation to overseas students; or(ii) relating to the advertising of an education service to overseas students; or(iii) relating to the enrolment of, or an offer to enrol, an overseas student; or(iv) relating to payment of any fee in respect of an overseas student; or(v) relevant to an application for registration made under section 6 or 11 ;(d) in any place lawfully entered, require the education provider or any person employed in that place to answer any question asked by the authorized officer;(e) make such inquiries as the authorized officer considers necessary or desirable.(2) An authorized officer who has not obtained a warrant under subsection (4) shall not forcibly enter any place referred to in subsection (1) .Penalty: Fine not exceeding 50 penalty units or imprisonment for a period not exceeding 9 months, or both.(3) An authorized officer who has not obtained a warrant under subsection (4) or does not have the permission of the occupier to enter any premises which are, or any part of premises which is, used as a dwelling shall not enter those premises or that part of premises.Penalty: Fine not exceeding 50 penalty units or imprisonment for a period not exceeding 9 months, or both.(4) Where a magistrate is satisfied by evidence on oath upon the complaint of an authorized officer that there is reasonable cause to permit entry to any place referred to in subsection (1) for the purposes specified in that subsection, the magistrate may issue a warrant directed to the authorized officer to enter the place specified in the warrant for the purpose of exercising in that place the powers conferred on the authorized officer by this Act.(5) A warrant issued under this section shall, for a period of one month from its issue, be sufficient authority –(a) to the authorized officer to whom it is directed and to all persons acting in aid of the authorized officer to enter the place specified in the warrant; and(b) to the authorized officer to whom it is directed to exercise in respect of the place specified in the warrant all the powers conferred on an authorized officer by this Act.(6) Where any information is obtained by an authorized officer under this section, evidence of that information or the obtaining of that information is not admissible against any person in any civil or criminal proceedings, except in proceedings against that person for an offence under this Act.
27. Powers of authorized officer to require delivery of document
(1) Where an authorized officer has reason to believe that a person has possession of any document or other record which is relevant to a matter under this Act, the authorized officer may require that person to deliver that document or other record, or a copy of that document or other record, as directed.(2) A requisition under subsection (1) may specify that the document, other record or copy is to be delivered –(a) at a specified place; and(b) to the Secretary or any other authorized officer; and(c) at, by or within a specified time; and(d) in person, by certified mail, or in another specified manner.(3) Where any information is obtained by an authorized officer under this section, evidence of that information or the obtaining of that information is not admissible against any person in any civil or criminal proceedings, except in proceedings against that person for an offence under this Act.
28. Possession of document, &c., by authorized officer
(1) Where an authorized officer has taken or required possession of any document or other record for the purposes of this Act, that authorized officer may retain that document or other record for so long as is necessary for those purposes.(2) Any person otherwise entitled to possession of a document or other record retained by an authorized officer under subsection (1) is, if the person so requests it, entitled to be furnished as soon as practicable with a copy of that document or other record certified by the Secretary to be a true copy.(3) A certified copy of a document or other record referred to in subsection (2) shall be received in all courts and elsewhere as evidence of the matters contained in that copy as if it were the original.
29. Obstruction, &c., of authorized officer
(1) A person shall not –(a) assault, resist, impede or obstruct an authorized officer exercising powers or performing functions under this Act, or attempt so to do; or(b) use threatening, abusive or insulting language to an authorized officer exercising powers or performing functions under this Act or to any person assisting that authorized officer; or(c) fail to provide information when lawfully requested to do so by an authorized officer; or(d) provide false or misleading information to an authorized officer; or(e) fail to comply with a lawful request, direction or requisition of an authorized officer; or(f) fail to produce to an authorized officer any document or record whatsoever in the person's possession or at the person's disposal when lawfully required to do so; or(g) impersonate an authorized officer.Penalty: Fine not exceeding 20 penalty units.(2) Where a person is convicted of an offence against subsection (1) (c) , (d) , (e) or (f) , the court may order that person to –which was the subject of the offence, as the case may require.(a) provide the information; or(b) comply with the lawful request, direction or requisition; or(c) produce to an authorized officer the document or record –(3) Where any information is obtained by an authorized officer under this section, evidence of that information or the obtaining of that information is not admissible against any person in any civil or criminal proceedings, except in proceedings against that person for an offence under this Act.
PART 5 - Miscellaneous
30. False or misleading information
A person shall not make, or cause to be made, a statement or representation that the person knows or believes to be false or misleading in a material particular when –(a) making an application under this Act; or(b) furnishing any information, document or record under this Act; or(c) keeping any record under this Act.Penalty: Fine not exceeding 25 penalty units.
(1) Where –that director or person, as well as the body corporate, is guilty of the offence and is liable to a penalty not exceeding that prescribed for the offence.(a) an offence under this Act has been committed by a body corporate; and(b) the offence is proved to have been committed with the consent or connivance of, or attributable to any neglect on the part of, any director or other person concerned in the management of the body corporate or any person who was purporting to act in any such capacity –(2) Subsection (1) does not apply in relation to a director or person who could not have prevented the commission of the offence by the exercise of reasonable diligence.
(1) The Secretary may sign a certificate certifying any one or more of the following matters:(a) that an education provider or an education service was or was not registered at the time specified in the certificate;(b) that any provision set out in the certificate was, at the time specified in the certificate, a condition to which the registration of an education provider or an education service was subject.(2) A certificate purporting to be signed by the Secretary certifying any matter specified in subsection (1) is admissible in any proceedings and is evidence of the matters so certified.
(1) The Minister, the Secretary, an authorized officer or any other person shall not incur any personal liability in respect of any act done or omitted to be done in good faith –(a) in the performance or exercise, or the purported performance or exercise, of any function or power under this Act; or(b) in the administration or execution, or the purported administration or execution, of this Act.(2) No action shall lie against the Crown in right of Tasmania or the Minister, the Secretary, an authorized officer or any other person in relation to any opinion, recommendation, certificate or registration given or effected, or purportedly given or effected, under this Act.
No proceedings against or conviction of any person for an offence against this Act shall affect any civil right or remedy available against that person independently of this Act.
(1) [Section 35 Subsection (1) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] The Secretary may, by instrument in writing, delegate to an authorized officer or a State Service officer or State Service employee the performance of any of the Secretary's functions and the exercise of any of the Secretary's powers under this Act (other than this power of delegation) that are specified in that instrument.(2) The Secretary may, by instrument in writing, revoke wholly or in part or vary a delegation made under this section.(3) A function or power, the performance or exercise of which has been delegated under this section, may, while the delegation remains unrevoked, be performed or exercised from time to time in accordance with the terms of the delegation.(4) A delegation under this section may be made subject to any conditions or limitations that are specified in the instrument of delegation.(5) Notwithstanding any delegation under this section, the Secretary may continue to perform or exercise all or any of the functions or powers delegated.(6) Any act or thing done by or to a person while acting in the exercise of a delegation under this section shall have the same force and effect as if the act or thing had been done by or to the Secretary and shall be deemed to have been done by or to the Secretary.(7) An instrument purporting to be signed by a person as a delegate of the Secretary shall be received in evidence in all courts and before all persons acting judicially as if it were an instrument executed by the Secretary and, until the contrary is proved, shall be deemed to be an instrument signed by a delegate of the Secretary under this section.
(1) The Governor may make regulations for the purposes of this Act.(2) Without limiting the generality of subsection (1) , the Governor may make regulations for or in respect of fees payable in relation to –(a) applications under this Act; and(b) the issue of a certificate of registration and a duplicate certificate of registration.(3) Regulations may be made so as to apply differently according to matters, limitations or restrictions, whether as to time, circumstance or otherwise, specified in the regulations.(4) The regulations may –(a) provide that a contravention of, or a failure to comply with, any of the regulations is an offence; and(b) in respect of such an offence, provide for the imposition of a penalty of a fine not exceeding 10 penalty units and, in the case of a continuing offence, a further penalty of a fine not exceeding 1 penalty unit for each day during which the offence continues.
37. Temporary registration of certain education providers, &c.
An education provider or an education service which was included in the Register of Approved Full Fee Studies issued by the Commonwealth Department of Employment, Education and Training as at 1 June 1990 is deemed to be registered for the period commencing on 1 January 1991 and ending on 30 June 1992.
Until an order is made under section 4 of the Administrative Arrangements Act 1990 –(a) the administration of this Act is assigned to the Minister for Education and the Arts; and(b) the Department responsible to the Minister for Education and the Arts is the Department of Education and the Arts.