Commonwealth Consolidated Acts

EDUCATION SERVICES FOR OVERSEAS STUDENTS ACT 2000 - SECT 8

             (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 that particular course for that particular State; or

                      (f)  the person does so in accordance with an arrangement that the person has with a registered provider for that particular course for a State.

Maximum penalty:    Imprisonment for 2 years.

Note 1:       This means that, if 2 or more providers jointly provide a course, 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 a 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 .