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The ESOS evaluation report provides the following summary in 3.2.6:
'Part 6 of the Act is concerned with enforcement. It covers sanctions for non-compliance, automatic suspension and cancellation, Immigration Minister suspension certificates and criminal offences.
It makes provision for the Minister to take a range of actions against a registered provider if the Minister believes on reasonable grounds that the registered provider or an associate of the registered provider is breaching, or has breached, the Act, the National Code or a condition of the provider’s registration. The Minister may:
- Impose one or more conditions on the registered provider's registration either generally or in respect of any one or more specified courses;
- Suspend the registered provider's registration for any one or more specified courses; or
- Cancel the registered provider’s registration for any one or more specified courses.
The Minister may take one or more of those actions against a registered provider if the Minister believes on reasonable grounds that because of financial difficulty or any other reason the provider might not be able to provide courses to its accepted students, or refund course money to its accepted students.
The Minister may also take action against a registered provider if the Minister believes on reasonable grounds that a provider that is providing the course with the registered provider is engaging, or has engaged, in misleading or deceptive conduct.
Automatic suspension of registration applies when the designated authority for the State suspends the approval of that course for the provider, or the provider fails to pay its annual Fund contribution or special levy.
Automatic cancellation of registration applies when a provider ceases to be approved for a course for a State, a provider who is an individual becomes bankrupt, or a winding up order is made in respect of a provider that is a body corporate.
The Immigration Minister may give an Immigration Minister's suspension certificate to a registered provider if, in the Immigration Minister's opinion, a significant number of the provider's (or an associate provider's) overseas students or intending overseas students are entering or remaining in Australia for purposes not contemplated by their visas. The power to give an Immigration Minister's suspension certificate must be exercised by the Immigration Minister personally.
Suspension certificates remain in effect for six months, and it is an offence, punishable up to a maximum of two years imprisonment, to continue to promote providers or courses to overseas students while the Certificate is in effect.
The ESOS Act specifies the maximum penalties that will apply under the Crimes Act 1914 for breaches of the ESOS Act. Providers are liable for fines equivalent to a maximum 60 penalty units (currently set at $110 in section 4AA of the Crimes Act) for each separate offence for breaches relating to:
- Notification about accepted students as specified in section 19(1) of the Act;
- The provision of particulars of any breach by an accepted student of a student visa condition as specified in section 19(2) of the Act;
- The provision of notice to students about breaches of visa conditions as specified in section 20 of the Act; and
- Record keeping as specified in section 21 of the Act.
Regulation 4.1 also lists the penalty units that apply for breaches of particular elements of the National Code.
Under the Act, providers are also liable for a maximum penalty of between six months to two years imprisonment for:
- Failing to identify the registered provider in written material (six months);
- Providing false or misleading information (12 months);
- Intentionally breaching a condition of access to the electronic notification system (six months); or
- Bogus provision of courses that not genuine with the intention to facilitate, or is reckless in facilitating, a breach of student visa conditions (two years, 100 penalty points or both).'
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