Part 7 · Education Services for Overseas Students Act 2000

Contents

Part 7 · Monitoring, investigation and enforcement

Division 1 · Guide to this Part

111AGuide to this Part#

• The ESOS agency for a registered provider can give a production notice (requiring a person to give information or documents) or an attendance notice (requiring a person to attend and answer questions) under Division 2. The TPS Director may also give a production notice under that Division.

• This Part also applies Parts 2, 3, 5 and 6 of the Regulatory Powers Act. Those Parts deal with monitoring, investigation, infringement notices and enforceable undertakings.

Division 1B · Compliance audits

112ACompliance audits#

(1)The ESOS agency for a registered provider may conduct an audit of the registered provider for the purpose of determining whether the registered provider is complying, or has complied, with:

(a)this Act; or

(b)the national code; or

(c)if the ELICOS Standards or Foundation Program Standards apply in relation to the registered provider—those Standards.

(2)An audit conducted under subsection (1) is to be known as a compliance audit.

(3)If a compliance audit of a registered provider is being conducted by the ESOS agency for the registered provider, the registered provider must:

(a)cooperate fully with the ESOS agency in relation to the compliance audit; and

(b)provide the ESOS agency with all reasonable facilities and assistance in relation to the compliance audit.

Note: If the registered provider breaches subsection (3), the ESOS agency may take action against the registered provider under section 83.

Division 2 · Notices requiring information and documents

Subdivision A · Production notices

113ESOS agency for a registered provider may give a production notice#

(1)This section applies if the ESOS agency for a registered provider reasonably believes that a relevant individual of the provider has, or has access to, information or documents that are relevant to a monitoring purpose.

(2)The ESOS agency may give the relevant individual a written notice requiring him or her to:

(a)give any information or documents relevant to the monitoring purpose to an authorised officer of the agency; or

(b)show any such documents to an authorised officer of the agency; or

(c)make copies of any such documents and give the copies to an authorised officer of the agency.

Note: The ESOS agency may also give the relevant individual an attendance notice: see section 116.

Information and documents may be required in a particular form

(3)If the information or documents are in a particular form then the production notice may require the information or documents to be given in that form.

113ATPS Director may give a production notice#

(1)This section applies if the TPS Director reasonably believes that a relevant individual of a registered provider has, or has access to, information or documents that are relevant to the performance of the TPS Director’s functions under Part 5 of this Act.

(2)The TPS Director may give the relevant individual a written notice requiring the individual:

(a)to give any such information or documents to a TPS officer; or

(b)to show any such documents to a TPS officer; or

(c)to make copies of any such documents and give the copies to a TPS officer.

(3)If the information or documents are in a particular form then the notice may require the information or documents to be given in that form.

114Contents of the production notice#

(1)A production notice must:

(a)state that it is given under section 113 or 113A; and

(b)set out the effects of sections 120 and 121; and

(ba)if the notice is given under section 113—set out the effect of section 122; and

(bb)if the notice is given under section 113A—set out the effect of section 122A; and

(c)state how and by when the information or documents must be given or shown.

Time for production of information or documents

(2)In so far as the notice covers information or documents:

(a)that relate to any extent to the calendar year in which the notice is given; and

(b)that are required to be given or shown on the premises where they are currently located;

the time mentioned in paragraph (1)(c) must be at least 24 hours after the notice is given.

(3)In so far as the notice covers any other information or documents, the time mentioned in paragraph (1)(c) must be at least 72 hours after the notice is given.

115Serving production notices#

(1)The ESOS agency for a registered provider must give a production notice under section 113 to a relevant individual of the provider:

(a)by delivering it to the individual personally; or

(b)by:

(i)leaving it at the address of the individual’s place of residence or business last known to the ESOS agency; and

(ii)taking reasonably practicable action to draw the individual’s attention to the notice; or

(c)by sending it by ordinary or any other class of pre-paid post to the individual’s place of residence or business last known to the ESOS agency.

(1A)The TPS Director must give a production notice under section 113A to a relevant individual of a registered provider:

(a)by delivering it to the relevant individual personally; or

(b)by:

(i)leaving it at the address of the relevant individual’s place of residence or business last known to the TPS Director; and

(ii)taking reasonably practicable action to draw the relevant individual’s attention to the notice; or

(c)by sending it by ordinary or any other class of pre-paid post to the relevant individual’s place of residence or business last known to the TPS Director.

(2)However, if the ESOS agency uses the method in paragraph (1)(c) or the TPS Director uses the method in paragraph (1A)(c), the time mentioned in paragraph 114(1)(c) must be at least 14 days after the notice is given (instead of at least 24 hours or 72 hours).

Note: Section 29 of the Acts Interpretation Act 1901 sets out when the notice is taken to have been given if the notice is posted to the individual.

Subdivision B · Attendance notices

116Attendance notices#

(2)The ESOS agency may give the relevant individual written notice requiring the individual to attend before an authorised officer of the agency and answer questions about the matter.

Note: The ESOS agency may also give the relevant individual a production notice: see section 113.

117Contents of the attendance notice#

(1)An attendance notice given to a relevant individual of a registered provider must:

(a)state that it is given under section 116; and

(b)set out the effects of sections 120, 121 and 122; and

(c)state where and when the individual is to attend.

The time mentioned in paragraph (c) must be at least 14 days after the notice is given.

(2)An attendance notice may be included in the same document as a production notice, if the notices are being given to the same relevant individual of a registered provider.

Subdivision C · Common rules for production and attendance notices

118Scales of expenses#

The regulations may prescribe scales of expenses to be allowed to persons required to give information or documents under this Division.

120Offence: failing to comply with a notice#

(1)A person who refuses or fails to comply with a production or attendance notice commits an offence.

Penalty: Imprisonment for 6 months.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

(2)However, a person does not commit an offence in relation to a production notice if the person complied with the notice to the extent that it was practicable to do so within the period allowed by the notice.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code.

121Offence: giving false or misleading information#

A person who gives false or misleading information in the course of complying or purporting to comply with a production or attendance notice commits an offence.

Penalty: Imprisonment for 12 months.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

122Offence: giving false or misleading document to authorised officer#

(1)A person who gives or shows an authorised officer of the ESOS agency for a registered provider a document that is false or misleading in a material particular, in the course of complying or purporting to comply with a production or attendance notice given by the agency, commits an offence.

Penalty: Imprisonment for 12 months.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

(2)However, the person does not commit the offence if the document is accompanied by a written statement signed by the person:

(a)stating that the document is, to the person’s knowledge, false or misleading in the material particular concerned; and

(b)setting out or referring to the material particular.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code.

122AOffence: giving false or misleading document to TPS officer#

(1)A person commits an offence if:

(a)the person is given a production notice under section 113A; and

(b)the person gives or shows a TPS officer a document in compliance or purported compliance with the notice; and

(c)the document is false or misleading in a material particular.

Penalty: Imprisonment for 12 months.

(2)Subsection (1) does not apply to a person if the document is accompanied by a written statement signed by the person:

(a)stating that the document is, to the person’s knowledge, false or misleading in the material particular concerned; and

(b)setting out or referring to the material particular.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code.

123Information and documents that incriminate a person#

(1)A person is not excused from the requirement to comply with a production or attendance notice on the ground that doing so might tend to incriminate the person or expose the person to a penalty.

(2)However, if the person is an individual:

(a)the information, document or answer to the question; or

(b)any other information, document or thing obtained as a direct or indirect result of complying with a notice;

is not admissible in evidence against the individual in any criminal proceedings other than proceedings under, or arising out of, section 121 or 122.

124Copies of documents#

Authorised officer etc.

(1)An authorised officer of the ESOS agency for a registered provider, or a person covered by subsection (2) who has the authorised officer’s permission, may:

(a)inspect a document given or shown to the authorised officer under this Division; and

(b)make and retain copies of, or take and retain extracts from, such a document; and

(c)retain a copy of a document given to the authorised officer in accordance with a requirement covered by paragraph 113(2)(c) (copies of documents given under production notices).

(2)This subsection covers a person if the person is an employee of the same ESOS agency as the authorised officer.

TPS Director etc.

(3)The TPS Director or a TPS officer may:

(a)inspect a document given or shown to a TPS officer under this Division; and

(b)make and retain copies of, or take and retain extracts from, such a document; and

(c)retain a copy of a document given to a TPS officer under this Division.

125Retaining of documents by authorised officer etc.#

(1)An authorised officer of the ESOS agency for a registered provider, or a person covered by subsection (3) who has the authorised officer’s permission, may retain a document given to the authorised officer under this Division:

(a)for the purposes of this Act; or

(b)for the purposes of an investigation as to whether an offence has been committed; or

(c)to enable evidence of an offence to be secured for the purposes of a prosecution.

(2)However, the document must not be retained for longer than 60 days after the authorised officer was given the document.

Note: The authorised officer may apply to retain the document for a further period: see section 128.

(3)This subsection covers a person if the person is an employee of the same ESOS agency as the authorised officer.

125ARetaining of documents by TPS officer#

(1)If a TPS officer is given a document under this Division, the TPS officer may retain the document:

(a)for the purposes of this Act; or

(b)for the purposes of an investigation as to whether an offence has been committed; or

(c)to enable evidence of an offence to be secured for the purposes of a prosecution.

(2)However, the document must not be retained for longer than 60 days after the TPS officer was given the document.

Note: The TPS officer may apply to retain the document for a further period: see section 128A.

126Owner of document must be given copy#

(1)A person who retains a document under section 125 must as soon as practicable:

(a)certify a copy of the document to be a true copy; and

(b)give the copy to the person (the owner) otherwise entitled to possession of the document.

(1A)If a TPS officer retains a document under section 125A, the TPS officer must as soon as practicable:

(a)certify a copy of the document to be a true copy; and

(b)give the copy to the person (the owner) otherwise entitled to possession of the document.

(2)The certified copy must be received in all courts and tribunals as evidence as if it had been the original.

Owner may inspect etc. original document

(3)Until the certified copy is given, the owner, or a person authorised by the owner, may inspect and make copies of, or take and retain extracts from, the original document at the times and places that the person retaining the document, or the TPS officer, thinks appropriate.

127Returning of documents#

(1)This section applies 60 days after a document is given under this Division to either of the following persons (the holder):

(a)an authorised officer of the ESOS agency for a registered provider;

(b)a TPS officer.

(2)The holder must take reasonable steps to return the document to the person who gave the holder the document or to the owner if that person is not entitled to possess it.

(3)However, the holder does not have to take those steps if:

(a)the holder may retain the document because of an order under section 129; or

(b)the holder is otherwise authorised (by a law, or an order of a court, of the Commonwealth or a State) to retain, destroy or dispose of the document.

128Authorised officer etc. may apply to retain document for a further period#

(1)An authorised officer of the ESOS agency for a registered provider given a document under this Division, or another person (the permitted person) who is retaining such a document under section 125, may apply to a magistrate or ART member for an order that the officer or permitted person may retain the document for a further period.

Time limit for application

(2)The application must be made before the end of:

(a)60 days after the document was given to the authorised officer; or

(b)a period previously specified in an order of a magistrate or ART member under section 129.

Persons affected by notice to be notified if practicable

(3)Before making the application, the officer or permitted person must:

(a)take reasonable steps to discover which persons’ interests would be affected by the retention of the document; and

(b)if it is practicable to do so, notify each person who the officer or permitted person believes to be such a person of the proposed application.

128ATPS officer may apply to retain document for a further period#

(1)If a TPS officer is given a document under this Division, the TPS officer may apply to a magistrate or ART member for an order that the officer may retain the document for a further period.

(2)The application must be made before the end of:

(a)60 days after the document was given to the TPS officer; or

(b)a period previously specified in an order of a magistrate or ART member under section 129.

(3)Before making the application, the TPS officer must:

(a)take reasonable steps to discover which persons’ interests would be affected by the retention of the document; and

(b)if it is practicable to do so, notify each person who the officer believes to be such a person of the proposed application.

129Magistrate or ART member may order retention for further period#

(1)The magistrate or ART member may order that the person who made the application under section 128 may retain the document if the magistrate or ART member is satisfied that it is necessary for the person to retain it:

(a)for the purposes of this Act; or

(b)for the purposes of an investigation as to whether an offence has been committed; or

(c)to enable evidence of an offence to be secured for the purposes of a prosecution.

(2)The order must specify the period for which the person may retain the document.

Power conferred personally

(3)The power in subsection (1) conferred on a magistrate is conferred on the magistrate:

(a)in a personal capacity; and

(b)not as a court or a member of a court.

Power need not be accepted

(4)A magistrate need not accept the power conferred by subsection (1).

Protection and immunity

(5)A magistrate exercising a power conferred by subsection (1) has the same protection and immunity as if the magistrate were exercising the power:

(a)as the court of which the magistrate is a member; or

(b)as a member of the court of which the magistrate is a member.

Division 3 · Monitoring

130Monitoring powers#

Provisions subject to monitoring

(1)A provision is subject to monitoring under Part 2 of the Regulatory Powers Act if it is:

(a)a provision of this Act; or

(b)a provision of the national code; or

(c)a provision of the ELICOS Standards or Foundation Program Standards; or

(d)an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act.

Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether this Act has been complied with. It includes powers of entry and inspection.

Information subject to monitoring

(2)Information given in compliance or purported compliance with one or more of the following provisions is subject to monitoring under Part 2 of the Regulatory Powers Act:

(a)a provision of this Act;

(b)a provision of the national code;

(c)a provision of the ELICOS Standards or Foundation Program Standards.

Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the information is correct. It includes powers of entry and inspection.

Matter subject to monitoring

(3)A matter is subject to monitoring under Part 2 of the Regulatory Powers Act if it is determining whether a registered provider, because of financial difficulty or any other reason, might not be able to:

(a)provide courses to its accepted students; or

(b)refund amounts to its accepted students under Division 2 of Part 5 of this Act.

Related provisions

(4)For the purposes of Part 2 of the Regulatory Powers Act:

(a)a provision covered by subsection 115(1) of the TEQSA Act is related to the provisions mentioned in subsection (1) of this section; and

(b)a provision covered by subsection 115(2) of the TEQSA Act is related to the information mentioned in subsection (2) of this section.

Authorised applicant

(5)For the purposes of Part 2 of the Regulatory Powers Act, an authorised officer of the ESOS agency for a registered provider is an authorised applicant in relation to the provisions mentioned in subsection (1), the information mentioned in subsection (2) and the matter mentioned in subsection (3).

Authorised person

(6)For the purposes of Part 2 of the Regulatory Powers Act, an authorised officer of the ESOS agency for a registered provider is an authorised person in relation to the provisions mentioned in subsection (1), the information mentioned in subsection (2) and the matter mentioned in subsection (3).

Issuing officer

(7)For the purposes of Part 2 of the Regulatory Powers Act, a magistrate is an issuing officer in relation to the provisions mentioned in subsection (1), the information mentioned in subsection (2) and the matter mentioned in subsection (3).

Relevant chief executive

(8)For the purposes of Part 2 of the Regulatory Powers Act, the relevant chief executive in relation to the provisions mentioned in subsection (1), the information mentioned in subsection (2) and the matter mentioned in subsection (3) is:

(a)to the extent that Part relates to an authorised person who is an authorised officer of TEQSA—the Chief Executive Officer of TEQSA; or

(b)to the extent that Part relates to an authorised person who is an authorised officer of the National VET Regulator—the National VET Regulator; or

(c)to the extent that Part relates to an authorised person who is an authorised officer of the Secretary—the Secretary; or

(d)to the extent that Part relates to an authorised person who is an authorised officer of any other entity—the head (however described) of that entity.

(9)The relevant chief executive covered by paragraph (8)(a), (b) or (c) may, in writing, delegate the powers and functions mentioned in subsection (10) to:

(a)for the Chief Executive Officer of TEQSA—a member of the staff of TEQSA (within the meaning of the TEQSA Act) who is:

(i)an SES employee or an acting SES employee; or

(ii)an APS employee who holds or performs the duties of an Executive Level 1 or 2 position or an equivalent position; or

(b)for the National VET Regulator—a member of the staff of the Regulator (within the meaning of the NVETR Act) who is:

(i)an SES employee or an acting SES employee; or

(ii)an APS employee who holds or performs the duties of an Executive Level 1 or 2 position or an equivalent position; or

(c)for the Secretary—an SES employee, or an acting SES employee, in the Department.

(10)The powers and functions that may be delegated are:

(a)powers and functions under Part 2 of the Regulatory Powers Act in relation to the provisions mentioned in subsection (1), the information mentioned in subsection (2) and the matter mentioned in subsection (3); and

(b)powers and functions under the Regulatory Powers Act that are incidental to a power or function mentioned in paragraph (a).

(11)A person exercising powers or performing functions under a delegation under subsection (9) must comply with any directions of the relevant chief executive.

Relevant court

(12)For the purposes of Part 2 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the provisions mentioned in subsection (1), the information mentioned in subsection (2) and the matter mentioned in subsection (3):

(a)the Federal Court of Australia;

(b)the Federal Circuit and Family Court of Australia (Division 2).

Person assisting

(13)An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 2 of the Regulatory Powers Act in relation to the provisions mentioned in subsection (1), the information mentioned in subsection (2) and the matter mentioned in subsection (3).

Use of force in executing a monitoring warrant

(14)In executing a monitoring warrant under Part 2 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsection (1), the information mentioned in subsection (2) and the matter mentioned in subsection (3):

(a)an authorised person may use such force against things as is necessary and reasonable in the circumstances; and

(b)a person assisting the authorised person may use such force against things as is necessary and reasonable in the circumstances.

Extension to external Territories

(15)Part 2 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsection (1), the information mentioned in subsection (2) and the matter mentioned in subsection (3), extends to each external Territory mentioned in subsection 4B(1) of this Act.

Division 4 · Investigation

131Investigation powers#

Provisions subject to investigation

(1)A provision is subject to investigation under Part 3 of the Regulatory Powers Act if it is:

(a)an offence against this Act; or

(b)an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act.

Note: Part 3 of the Regulatory Powers Act creates a framework for investigating whether a provision has been contravened. It includes powers of entry, search and seizure.

Related provisions

(2)For the purposes of Part 3 of the Regulatory Powers Act, each of the following provisions is related to evidential material that relates to a provision mentioned in subsection (1):

(a)an offence against the TEQSA Act;

(b)a civil penalty provision of the TEQSA Act;

(c)an offence against the Crimes Act 1914 or the Criminal Code that relates to the TEQSA Act.

Authorised applicant

(3)For the purposes of Part 3 of the Regulatory Powers Act, an authorised officer of the ESOS agency for a registered provider is an authorised applicant in relation to evidential material that relates to a provision mentioned in subsection (1).

Authorised person

(4)For the purposes of Part 3 of the Regulatory Powers Act, an authorised officer of the ESOS agency for a registered provider is an authorised person in relation to evidential material that relates to a provision mentioned in subsection (1).

Issuing officer

(5)For the purposes of Part 3 of the Regulatory Powers Act, a magistrate is an issuing officer in relation to evidential material that relates to a provision mentioned in subsection (1).

Relevant chief executive

(6)For the purposes of Part 3 of the Regulatory Powers Act, the relevant chief executive in relation to evidential material that relates to a provision mentioned in subsection (1) is:

(a)to the extent that Part relates to an authorised person who is an authorised officer of TEQSA—the Chief Executive Officer of TEQSA; or

(b)to the extent that Part relates to an authorised person who is an authorised officer of the National VET Regulator—the National VET Regulator; or

(c)to the extent that Part relates to an authorised person who is an authorised officer of the Secretary—the Secretary; or

(d)to the extent that Part relates to an authorised person who is an authorised officer of any other entity—the head (however described) of that entity.

(7)The relevant chief executive covered by paragraph (6)(a), (b) or (c) may, in writing, delegate the powers and functions mentioned in subsection (8) to:

(a)for the Chief Executive Officer of TEQSA—a member of the staff of TEQSA (within the meaning of the TEQSA Act) who is:

(i)an SES employee or an acting SES employee; or

(ii)an APS employee who holds or performs the duties of an Executive Level 1 or 2 position or an equivalent position; or

(b)for the National VET Regulator—a member of the staff of the Regulator (within the meaning of the NVETR Act) who is:

(i)an SES employee or an acting SES employee; or

(ii)an APS employee who holds or performs the duties of an Executive Level 1 or 2 position or an equivalent position; or

(c)for the Secretary—an SES employee, or an acting SES employee, in the Department.

(8)The powers and functions that may be delegated are:

(a)powers and functions under Part 3 of the Regulatory Powers Act in relation to evidential material that relates to a provision mentioned in subsection (1); and

(b)powers and functions under the Regulatory Powers Act that are incidental to a power or function mentioned in paragraph (a).

(9)A person exercising powers or performing functions under a delegation under subsection (7) must comply with any directions of the relevant chief executive.

Relevant court

(10)For the purposes of Part 3 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to evidential material that relates to a provision mentioned in subsection (1):

(a)the Federal Court of Australia;

(b)the Federal Circuit and Family Court of Australia (Division 2).

Person assisting

(11)An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 3 of the Regulatory Powers Act in relation to evidential material that relates to a provision mentioned in subsection (1).

Use of force in executing an investigation warrant

(12)In executing an investigation warrant under Part 3 of the Regulatory Powers Act, as that Part applies in relation to evidential material that relates to a provision mentioned in subsection (1):

(a)an authorised person may use such force against things as is necessary and reasonable in the circumstances; and

(b)a person assisting the authorised person may use such force against things as is necessary and reasonable in the circumstances.

Extension to external Territories

(13)Part 3 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsection (1), extends to each external Territory mentioned in subsection 4B(1) of this Act.

Division 5 · Infringement notices

132Infringement notices#

Provisions subject to an infringement notice

(1)The following provisions of this Act are subject to an infringement notice under Part 5 of the Regulatory Powers Act:

(a)subsection 19(5);

(b)subsection 20(6);

(c)subsection 21(5);

(d)subsection 21A(1A);

(da)subsection 21B(7);

(e)subsection 46E(1);

(f)subsection 47F(1);

(g)subsection 47G(1).

Note: Part 5 of the Regulatory Powers Act creates a framework for using infringement notices in relation to provisions.

Infringement officer

(2)For the purposes of Part 5 of the Regulatory Powers Act, an authorised officer of the ESOS agency for a registered provider is an infringement officer in relation to the provisions mentioned in subsection (1).

Relevant chief executive

(3)For the purposes of Part 5 of the Regulatory Powers Act, the relevant chief executive in relation to the provisions mentioned in subsection (1) is:

(a)to the extent that Part relates to an infringement officer who is an authorised officer of TEQSA—the Chief Executive Officer of TEQSA; or

(b)to the extent that Part relates to an infringement officer who is an authorised officer of the National VET Regulator—the National VET Regulator; or

(c)to the extent that Part relates to an infringement officer who is an authorised officer of the Secretary—the Secretary; or

(d)to the extent that Part relates to an infringement officer who is an authorised officer of any other entity—the head (however described) of that entity.

(4)The relevant chief executive covered by paragraph (3)(a), (b) or (c) may, in writing, delegate the relevant chief executive’s powers and functions under Part 5 of the Regulatory Powers Act in relation to the provisions mentioned in subsection (1) to:

(a)for the Chief Executive Officer of TEQSA—a member of the staff of TEQSA (within the meaning of the TEQSA Act) who is:

(i)an SES employee or an acting SES employee; or

(ii)an APS employee who holds or performs the duties of an Executive Level 1 or 2 position or an equivalent position; or

(b)for the National VET Regulator—a member of the staff of the Regulator (within the meaning of the NVETR Act) who is:

(i)an SES employee or an acting SES employee; or

(ii)an APS employee who holds or performs the duties of an Executive Level 1 or 2 position or an equivalent position; or

(c)for the Secretary—an SES employee, or an acting SES employee, in the Department.

(5)A person exercising powers or performing functions under a delegation under subsection (4) must comply with any directions of the relevant chief executive.

Extension to external Territories

(6)Part 5 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsection (1), extends to each external Territory mentioned in subsection 4B(1) of this Act.

Division 6 · Enforceable undertakings

133Enforceable undertakings#

Enforceable provisions

(1)A provision is enforceable under Part 6 of the Regulatory Powers Act if it is:

(a)a provision of this Act; or

(b)a provision of the national code; or

(c)a provision of the ELICOS Standards or Foundation Program Standards.

Note: Part 6 of the Regulatory Powers Act creates a framework for accepting and enforcing undertakings relating to compliance with provisions.

Authorised person

(2)For the purposes of Part 6 of the Regulatory Powers Act, an authorised person in relation to the provisions mentioned in subsection (1) is:

(a)in relation to an undertaking by a registered higher education provider—the Chief Executive Officer of TEQSA; or

(b)in relation to an undertaking by a registered VET provider—the National VET Regulator; or

(c)in relation to an undertaking by an approved school provider—the Secretary; or

(d)in relation to an undertaking by any other registered provider—the head (however described) of the ESOS agency for the registered provider.

Relevant court

(3)For the purposes of Part 6 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the provisions mentioned in subsection (1):

(a)the Federal Court of Australia;

(b)the Federal Circuit and Family Court of Australia (Division 2).

Other undertakings

(4)An authorised person covered by subsection (2) may accept a written undertaking given by a registered provider that:

(a)the provider will take, or refrain from taking, specified action in order for the provider to comply with a condition of the provider’s registration; or

(b)the provider will take specified action directed towards ensuring that in the future the provider does not, or is unlikely to, contravene a condition of the provider’s registration.

The undertaking must be expressed to be an undertaking under this subsection.

(5)The power in subsection (4) is in addition to the power of an authorised person under subsection 114(1) of the Regulatory Powers Act.

(6)Part 6 of the Regulatory Powers Act, other than subsections 114(1) and (2) of that Act, applies to an undertaking accepted under subsection (4) of this section as if it were an undertaking accepted under subsection 114(1) of the Regulatory Powers Act.

Extension to external Territories

(7)Part 6 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsection (1) and an undertaking accepted under subsection (4), extends to each external Territory mentioned in subsection 4B(1) of this Act.

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