Contents
Part 7 · Enforcement
Division 1A · Simplified outline
97Simplified outline of this Part#
• There are administrative sanctions for non-compliant registered higher education providers.
• There are a range of offences and civil penalties for contraventions of this Act.
• The Regulatory Powers Act is triggered to allow a range of enforcement actions in relation to this Act.
• Authorised officers are permitted to enter premises under a monitoring warrant or with consent of the occupier and to exercise monitoring powers under that Act for the purposes of determining whether various provisions of this Act or instruments under this Act have been complied with.
• Authorised officers may enter premises and exercise investigation powers to determine whether there has been a contravention of provisions of this Act or an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act.
• A relevant court can order the payment of a civil penalty for a contravention of a civil penalty provision.
• Infringement notices can be issued for an alleged contravention of a civil penalty provision.
• Undertakings to comply with this Act may be accepted and enforced under the Regulatory Powers Act. If a person gives an undertaking, the undertaking may be enforced by a court order.
• A court can grant an injunction restraining a person from contravening a provision of this Act or requiring a person to comply with a provision of this Act. A court can also grant an injunction relating to online locations that facilitate provision of, or advertising of, academic cheating services.
Division 1 · Administrative sanctions
Subdivision A · Sanctions
98Provider is non-compliant#
This Subdivision applies if a registered higher education provider has:
(a)failed to meet the Threshold Standards; or
(b)breached a condition imposed on its registration; or
(ba)breached a condition imposed on its authorisation as an authorised offshore provider; or
(c)breached a condition imposed on the accreditation of a course of study accredited in relation to the provider; or
(d)failed to ensure that an accredited course in relation to the provider meets the Threshold Standards;
or if circumstances exist in relation to the provider that are of a kind specified in regulations made for the purposes of this section.
Note: TEQSA may impose conditions under section 32, 44J or 53 instead of, or in addition to, applying a sanction under this Subdivision.
99Sanctions about accredited course#
For a failure or breach relating to a course of study, TEQSA may:
(a)shorten the period of accreditation of the course of study; or
(b)cancel the accreditation of the course of study.
101Cancelling registration#
(1)TEQSA may cancel the provider’s registration.
(2)However, before doing so, TEQSA must give the provider and the Minister for each relevant State and Territory responsible for higher education:
(3)TEQSA must have regard to any representations received under subsection (2).
(4)Subsection (2) does not apply if TEQSA is satisfied that the circumstances require immediate action.
Subdivision B · Other matters
102Automatic cancellation if provider wound up#
A registered higher education provider’s registration is cancelled, by force of this section, if a winding-up order is made in respect of the provider.
Division 2 · Offences and civil penalty provisions
Note: There are offence and civil penalty provisions in Part 5A also.
105Offering a regulated higher education award if unregistered#
Offence
(1)A higher education provider commits an offence if the higher education provider is not a registered higher education provider.
Penalty: 300 penalty units.
Civil penalty
(2)A higher education provider contravenes this subsection if the higher education provider is not a registered higher education provider.
Civil penalty: 600 penalty units.
106Representing offer of a regulated higher education award if unregistered#
Offence
(1)A regulated entity commits an offence if:
(a)the entity represents that the entity:
(i)is offering, or will offer, a regulated higher education award; or
(ii)is conferring, or will confer, a regulated higher education award; and
(b)the entity is not a registered higher education provider.
Penalty: 300 penalty units.
Civil penalty
(2)A regulated entity contravenes this subsection if:
(a)the entity represents that the entity:
(i)is offering, or will offer, a regulated higher education award; or
(ii)is conferring, or will confer, a regulated higher education award; and
(b)the entity is not a registered higher education provider.
Civil penalty: 600 penalty units.
106AOffering a regulated higher education award offshore if not authorised#
Offence
(1)A higher education provider commits an offence if:
(a)the higher education provider offers or confers an Australian higher education award for the completion of an Australian course of study; and
(b)the course of study is an offshore provided Australian course of study; and
(c)the higher education provider is not an authorised offshore provider.
Penalty: 120 penalty units.
Civil penalty
(2)A higher education provider contravenes this subsection if:
(a)the higher education provider offers or confers an Australian higher education award for the completion of an Australian course of study; and
(b)the course of study is an offshore provided Australian course of study; and
(c)the higher education provider is not an authorised offshore provider.
Civil penalty: 240 penalty units.
107Offering an award without a course of study#
Offence
(1)A regulated entity commits an offence if:
(a)the entity offers or confers:
(i)an Australian higher education award; or
(ii)an overseas higher education award for the completion of a course of study provided wholly or mainly from Australian premises related to the award; and
(b)for one or more students, the entity offers or confers the award:
(i)without requiring the completion of a course of study; and
(ii)not as an honorary award.
Penalty: 300 penalty units.
Civil penalty
(2)A regulated entity contravenes this subsection if:
(a)the entity offers or confers:
(i)an Australian higher education award; or
(ii)an overseas higher education award for the completion of a course of study provided wholly or mainly from Australian premises related to the award; and
(b)for one or more students, the entity offers or confers the award:
(i)without requiring the completion of a course of study; and
(ii)not as an honorary award.
Civil penalty: 600 penalty units.
108Regulated entity represents itself as university#
Offence
(1)A regulated entity commits an offence if:
(a)the entity uses the word “university” to represent itself, or its operations, as a university in relation to:
(i)an Australian course of study; or
(ii)an overseas course of study, to the extent that the course of study is, or is to be, provided wholly or mainly from Australian premises that are related to an overseas higher education award; or
(iii)a regulated higher education award; and
(b)the entity is not a registered higher education provider registered in either the “Australian University” or “Overseas University” provider category.
Penalty: 300 penalty units.
Civil penalty
(2)A regulated entity contravenes this subsection if:
(a)the entity uses the word “university” to represent itself, or its operations, as a university in relation to:
(i)an Australian course of study; or
(ii)an overseas course of study, to the extent that the course of study is, or is to be, provided wholly or mainly from Australian premises that are related to an overseas higher education award; or
(iii)a regulated higher education award; and
(b)the entity is not a registered higher education provider registered in either the “Australian University” or “Overseas University” provider category.
Civil penalty: 600 penalty units.
Use of the word “university”
(3)Without limiting paragraph (1)(a) or (2)(a), an entity is taken to use the word “university” if the entity:
(a)uses a variant of that word; or
(b)uses that word, or a variant of that word, by itself or in combination with other words.
109Falsely representing entity as a registered higher education provider#
Offence
(1)A regulated entity commits an offence if:
(a)the entity represents that the entity is a registered higher education provider; and
(b)the representation is untrue.
Penalty: 300 penalty units.
Civil penalty
(2)A regulated entity contravenes this subsection if:
(a)the entity represents that the entity is a registered higher education provider; and
(b)the representation is untrue.
Civil penalty: 600 penalty units.
110Falsely representing that entity provides a course of study leading to a regulated higher education award#
Offence
(1)A regulated entity commits an offence if:
(a)the entity represents that it provides all or part of a course of study that leads to a regulated higher education award; and
(b)the representation is untrue.
Penalty: 120 penalty units.
Civil penalty
(2)A regulated entity contravenes this subsection if:
(a)the entity represents that it provides all or part of a course of study that leads to a regulated higher education award; and
(b)the representation is untrue.
Civil penalty: 240 penalty units.
111Falsely representing course of study is accredited#
Offence
(1)A regulated entity commits an offence if:
(a)the entity represents that a course of study is an accredited course in relation to an entity; and
(b)the representation is untrue.
Penalty: 120 penalty units.
Civil penalty
(2)A regulated entity contravenes this subsection if:
(a)the entity represents that a course of study is an accredited course in relation to an entity; and
(b)the representation is untrue.
Civil penalty: 240 penalty units.
112Providing an unaccredited course of study#
Offence
(1)A registered higher education provider commits an offence if:
(a)one or more entities provide all or part of a course of study; and
(b)the course of study leads to a regulated higher education award offered or conferred by the provider; and
(c)the course of study is not an accredited course in relation to the provider.
Penalty: 120 penalty units.
Civil penalty
(2)A registered higher education provider contravenes this subsection if:
(a)one or more entities provide all or part of a course of study; and
(b)the course of study leads to a regulated higher education award offered or conferred by the provider; and
(c)the course of study is not an accredited course in relation to the provider.
Civil penalty: 240 penalty units.
113Breach of condition of registration#
A registered higher education provider contravenes this section if:
(a)a condition is imposed on the provider’s registration; and
(b)the provider does an act or omits to do an act; and
(c)the act or omission breaches the condition.
Civil penalty: 120 penalty units.
113ABreach of condition of authorisation#
A registered higher education provider contravenes this section if:
(a)a condition is imposed on the provider’s authorisation as an authorised offshore provider; and
(b)the provider does an act or omits to do an act; and
(c)the act or omission breaches the condition.
Civil penalty: 120 penalty units.
114Breach of condition of accreditation#
A registered higher education provider contravenes this section if:
(a)a condition is imposed on the accreditation of a course of study accredited in relation to the provider; and
(b)the provider does an act or omits to do an act; and
(c)the act or omission breaches the condition.
Civil penalty: 120 penalty units.
114AProhibition on providing etc. academic cheating services#
Providing etc. an academic cheating service for a commercial purpose
(1)A person commits an offence if the person provides, offers to provide or arranges for a third person to provide an academic cheating service:
(a)to a student undertaking, with a higher education provider:
(i)an Australian course of study; or
(ii)an overseas course of study provided at Australian premises; and
(b)for a commercial purpose.
Penalty: 2 years imprisonment or 500 penalty units, or both.
(2)Strict liability applies to:
(a)paragraph (1)(a); and
(b)the physical element of circumstance in paragraphs (a) and (b) of the definition of academic cheating service in section 5.
Providing etc. an academic cheating service
(3)A person contravenes this subsection if the person provides, offers to provide or arranges for a third person to provide an academic cheating service to a student undertaking, with a higher education provider:
(a)an Australian course of study; or
(b)an overseas course of study provided at Australian premises.
Civil penalty: 500 penalty units.
Generally not necessary to prove provision etc. of an academic cheating service to a particular student
(4)In proceedings for a contravention of subsection (1) or (3), it is not necessary to prove that the person provided, offered to provide or arranged for a third person to provide an academic cheating service to a particular student.
(5)Subsection (4) does not apply in relation to proceedings for a contravention of subsection (1) or (3) (as that provision is given effect by paragraph 114C(4)(c)) if the student referred to in that subsection is an alien (within the meaning of paragraph 51(xix) of the Constitution).
114BProhibition on advertising academic cheating services#
(1)A person commits an offence if:
(a)the person advertises, or publishes or broadcasts an advertisement for, an academic cheating service to students undertaking, with a higher education provider:
(i)an Australian course of study; or
(ii)an overseas course of study provided at Australian premises; and
(b)either:
(i)the person does so for a commercial purpose; or
(ii)the academic cheating service has a commercial purpose.
Penalty: 2 years imprisonment or 500 penalty units, or both.
(2)A person contravenes this subsection if the person advertises, or publishes or broadcasts an advertisement for, an academic cheating service to students undertaking, with a higher education provider:
(a)an Australian course of study; or
(b)an overseas course of study provided at Australian premises.
Civil penalty: 500 penalty units.
114CAdditional operation of sections 114A and 114B#
(1)In addition to the effect they have in relation to higher education providers, sections 114A and 114B also have effect as provided by this section.
Note: For the meaning of higher education provider, see section 5.
Section 114A—trade and commerce
(2)Section 114A also has the effect it would have as if:
(a)each reference to providing an academic cheating service were expressly confined to a service that is, or is to be, provided in the course of trade and commerce to which paragraph 51(i) of the Constitution applies; or
(b)each reference to an offer to provide, or to an arrangement to provide, an academic cheating service were expressly confined to an offer or arrangement made in the course of trade and commerce to which paragraph 51(i) of the Constitution applies.
Section 114A—communications
(3)Section 114A also has the effect it would have as if:
(a)each reference to providing an academic cheating service were expressly confined to a service that is, or is to be, provided by means of a service to which paragraph 51(v) of the Constitution applies; or
(b)each reference to an offer to provide, or to an arrangement to provide, an academic cheating service were expressly confined to an offer or arrangement made by means of a service to which paragraph 51(v) of the Constitution applies.
Section 114A—aliens
(4)Section 114A also has the effect it would have as if:
(a)each reference to a person who provides, offers to provide or arranges for a third person to provide an academic cheating service were expressly confined to a person who is an alien (within the meaning of paragraph 51(xix) of the Constitution); or
(b)each reference to a third person in respect of whom an arrangement is made were expressly confined to a person who is an alien (within the meaning of paragraph 51(xix) of the Constitution); or
(c)each reference to a student were expressly confined to a person who is an alien (within the meaning of paragraph 51(xix) of the Constitution).
Sections 114A—constitutional corporations (other than higher education providers)
(5)Section 114A also has the effect it would have as if:
(a)each reference to a person who provides, offers to provide or arranges for a third person to provide an academic cheating service were expressly confined to a constitutional corporation; or
(b)each reference to a third person in respect of whom an arrangement is made were expressly confined to a constitutional corporation.
Section 114B—trade and commerce
(6)Section 114B also has the effect it would have as if:
(a)each reference to advertising, or publishing or broadcasting an advertisement for, an academic cheating service were expressly confined to a service that is, or is to be, provided in the course of trade and commerce to which paragraph 51(i) of the Constitution applies; or
(b)each reference to advertising, or publishing or broadcasting an advertisement for, an academic cheating service were expressly confined to advertising, publishing or broadcasting in the course of trade and commerce to which paragraph 51(i) of the Constitution applies.
Section 114B—communications
(7)Section 114B also has the effect it would have as if:
(a)each reference to advertising, or publishing or broadcasting an advertisement for, an academic cheating service were expressly confined to a service that is, or is to be, provided by means of a service to which paragraph 51(v) of the Constitution applies; or
(b)each reference to advertising, or publishing or broadcasting an advertisement for, an academic cheating service were expressly confined to advertising, publishing or broadcasting by means of a service to which paragraph 51(v) of the Constitution applies.
Section 114B—aliens
(8)Section 114B also has the effect it would have as if each reference to a person who advertises, or publishes or broadcasts an advertisement for, an academic cheating service were expressly confined to a person who is an alien (within the meaning of paragraph 51(xix) of the Constitution).
Section 114B—constitutional corporations
(9)Section 114B also has the effect it would have as if each reference to a person who advertises, or publishes or broadcasts an advertisement for, an academic cheating service were expressly confined to a constitutional corporation.
Division 3 · Monitoring
115Monitoring 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 an instrument made under subsection 58(1); or
(c)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 a provision of this Act, or of the Up-front Payments Guidelines, is subject to monitoring under Part 2 of the Regulatory Powers Act.
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.
Related provisions
(3)For the purposes of Part 2 of the Regulatory Powers Act:
(a)a provision covered by subsection 130(1) of the Education Services for Overseas Students Act 2000 is related to the provisions mentioned in subsection (1) of this section; and
(b)a provision covered by subsection 130(2) of the Education Services for Overseas Students Act 2000 is related to the information mentioned in subsection (2) of this section.
Authorised applicant
(4)For the purposes of Part 2 of the Regulatory Powers Act:
(a)the Chief Executive Officer and each Commissioner and authorised officer is an authorised applicant in relation to:
(i)a provision of this Act (except Part 5A); and
(ii)a provision of an instrument made under subsection 58(1); and
(iii)an offence against the Crimes Act 1914 or the Criminal Code that relates to a provision of this Act (except Part 5A); and
(iv)information given in compliance or purported compliance with a provision of this Act (except Part 5A) or of the Up-front Payments Guidelines; and
(b)each HESA investigator and authorised officer is an authorised applicant in relation to:
(i)a provision of Part 5A; and
(ii)an offence against the Crimes Act 1914 or the Criminal Code that relates to a provision of Part 5A; and
(iii)information given in compliance or purported compliance with a provision of Part 5A.
Authorised person
(5)For the purposes of Part 2 of the Regulatory Powers Act:
(a)an authorised officer is an authorised person in relation to:
(i)a provision of this Act (except Part 5A); and
(ii)a provision of an instrument made under subsection 58(1); and
(iii)an offence against the Crimes Act 1914 or the Criminal Code that relates to a provision of this Act (except Part 5A); and
(iv)information given in compliance or purported compliance with a provision of this Act (except Part 5A) or of the Up-front Payments Guidelines; and
(b)each HESA investigator and authorised officer is an authorised person in relation to:
(i)a provision of Part 5A; and
(ii)an offence against the Crimes Act 1914 or the Criminal Code that relates to a provision of Part 5A; and
(iii)information given in compliance or purported compliance with a provision of Part 5A.
Issuing officer
(6)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) and the information mentioned in subsection (2).
Relevant chief executive
(7)For the purposes of Part 2 of the Regulatory Powers Act:
(a)the Chief Executive Officer is a relevant chief executive in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2); and
(b)the Secretary is also a relevant chief executive in relation to:
(i)a provision of Part 5A; and
(ii)an offence against the Crimes Act 1914 or the Criminal Code that relates to a provision of Part 5A; and
(iii)information given in compliance or purported compliance with a provision of Part 5A.
Note: For delegation by the Chief Executive Officer, see subsection 154L(2). For delegation by the Secretary, see section 201A.
Relevant court
(11)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) and the information mentioned in subsection (2):
(a)the Federal Court;
(b)the Federal Circuit and Family Court of Australia (Division 2).
Person assisting
(12)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) and the information mentioned in subsection (2).
Extension to external Territories
(13)Part 2 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2), extends to every external Territory.
Division 4 · Investigation
116Investigation 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)a civil penalty provision of this Act; or
(c)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 Education Services for Overseas Students Act 2000;
(b)an offence against the Crimes Act 1914 or the Criminal Code that relates to the Education Services for Overseas Students Act 2000.
Authorised applicant
(3)For the purposes of Part 3 of the Regulatory Powers Act:
(a)the Chief Executive Officer and each Commissioner and authorised officer is an authorised applicant in relation to evidential material that relates to:
(i)an offence against this Act (except Part 5A); or
(ii)a civil penalty provision of this Act (except Part 5A); or
(iii)an offence against the Crimes Act 1914 or the Criminal Code that relates to a provision of this Act (except Part 5A); and
(b)each HESA investigator and authorised officer is an authorised applicant in relation to evidential material that relates to:
(i)an offence against Part 5A; or
(ii)a civil penalty provision of Part 5A; or
(iii)an offence against the Crimes Act 1914 or the Criminal Code that relates to a provision of Part 5A.
Authorised person
(4)For the purposes of Part 3 of the Regulatory Powers Act:
(a)an authorised officer is an authorised person in relation to evidential material that relates to:
(i)an offence against this Act (except Part 5A); or
(ii)a civil penalty provision of this Act (except Part 5A); or
(iii)an offence against the Crimes Act 1914 or the Criminal Code that relates to a provision of this Act (except Part 5A); and
(b)each HESA investigator and authorised officer is an authorised person in relation to evidential material that relates to:
(i)an offence against Part 5A; or
(ii)a civil penalty provision of Part 5A; or
(iii)an offence against the Crimes Act 1914 or the Criminal Code that relates to a provision of Part 5A.
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:
(a)the Chief Executive Officer is a relevant chief executive in relation to evidential material that relates to a provision mentioned in subsection (1); and
(b)the Secretary is also a relevant chief executive in relation to evidential material that relates to:
(i)an offence against Part 5A; or
(ii)a civil penalty provision of Part 5A; or
(iii)an offence against the Crimes Act 1914 or the Criminal Code that relates to a provision of Part 5A.
Note: For delegation by the Chief Executive Officer, see subsection 154L(2). For delegation by the Secretary, see section 201A.
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;
(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).
Extension to external Territories
(12)Part 3 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsection (1), extends to every external Territory.
Division 5 · Civil penalty provisions
117Civil penalty provisions#
Enforceable civil penalty provisions
(1)Each civil penalty provision of this Act is enforceable under Part 4 of the Regulatory Powers Act.
Note: Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.
Authorised applicant
(2)For the purposes of Part 4 of the Regulatory Powers Act:
(a)each of the following persons is an authorised applicant in relation to the civil penalty provisions of this Act (except a civil penalty provision of Part 5A):
(i)a Commissioner;
(ii)the Chief Executive Officer; and
(b)the Higher Education Tuition Protection Director is an authorised applicant in relation to the civil penalty provisions of Part 5A.
Note: For delegation by the Chief Executive Officer, see subsection 154L(2).
Relevant court
(5)For the purposes of Part 4 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the civil penalty provisions of this Act:
(a)the Federal Court;
(b)the Federal Circuit and Family Court of Australia (Division 2).
Maximum penalties
(6)Despite subsection 82(5) of the Regulatory Powers Act, the pecuniary penalty in relation to a contravention of a civil penalty provision of this Act (except subsection 114A(3) or 114B(2)) must not be more than the applicable pecuniary penalty specified for the provision.
Note: If a court is satisfied that a body corporate has contravened subsection 114A(3) or 114B(2) of this Act (about academic cheating services), under subsection 82(5) of the Regulatory Powers Act the court may determine a pecuniary penalty not exceeding an amount equal to 5 times the pecuniary penalty specified for the civil penalty provision.
Extension to external Territories
(7)Part 4 of the Regulatory Powers Act, as that Part applies in relation to the civil penalty provisions of this Act, extends to every external Territory.
Division 6 · Infringement notices
118Infringement notices#
Provisions subject to an infringement notice
(1)A civil penalty provision of this Act is subject to an infringement notice under Part 5 of the Regulatory Powers Act.
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:
(a)an authorised officer is an infringement officer in relation to the provisions mentioned in subsection (1) (except a provision of Part 5A); and
(b)the Higher Education Tuition Protection Director is an infringement officer in relation to a civil penalty provision of Part 5A.
Relevant chief executive
(3)For the purposes of Part 5 of the Regulatory Powers Act:
(a)the Chief Executive Officer is the relevant chief executive in relation to the provisions mentioned in subsection (1) (except a provision of Part 5A); and
(b)the Higher Education Tuition Protection Director is the relevant chief executive in relation to a civil penalty provision of Part 5A.
Note: For delegation by the Chief Executive Officer, see subsection 154L(2).
Division 7 · Enforceable undertakings
119Enforceable undertakings#
Enforceable provisions
(1)The provisions of this Act are enforceable under Part 6 of the Regulatory Powers Act.
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:
(a)each of the following persons is an authorised person in relation to a provision of this Act (except Part 5A):
(i)a Commissioner;
(ii)the Chief Executive Officer; and
Note: For delegation by the Chief Executive Officer, see subsection 154L(2). For delegation by the Secretary, see section 201A.
Relevant court
(5)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;
(b)the Federal Circuit and Family Court of Australia (Division 2).
Publication of undertakings
(6)An authorised person in relation to a provision mentioned in subsection (1) may publish an undertaking, given in relation to the provision by a regulated entity, on the Register.
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), extends to every external Territory.
Division 8 · Injunctions
127Injunctions—general#
Enforceable provisions
(1)The provisions of this Act are enforceable under Part 7 of the Regulatory Powers Act.
Note: Part 7 of the Regulatory Powers Act creates a framework for using injunctions to enforce provisions.
Authorised person
(2)For the purposes of Part 7 of the Regulatory Powers Act:
(a)each of the following persons is an authorised person in relation to a provision of this Act (except Part 5A):
(i)a Commissioner;
(ii)the Chief Executive Officer; and
Note: For delegation by the Chief Executive Officer, see subsection 154L(2). For delegation by the Secretary, see section 201A.
Relevant court
(5)For the purposes of Part 7 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;
(b)the Federal Circuit and Family Court of Australia (Division 2).
Extension to external Territories
(6)Part 7 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsection (1), extends to every external Territory.
127AInjunctions relating to online locations that facilitate provision of, or advertising of, academic cheating services#
Application for an injunction
(1)TEQSA may apply, on behalf of the Commonwealth, to the Federal Court to grant an injunction that requires a carriage service provider to take such steps as the Court considers reasonable to disable access to an online location that contravenes, or facilitates a contravention of, section 114A or 114B.
(2)The application under subsection (1) may also request that the injunction require an online search engine provider (other than a provider that is covered by a declaration under subsection (11)) to take such steps as the Court considers reasonable so as not to provide a search result that refers users to the online location.
Granting the injunction
(3)The Court may grant the injunction in the terms, and subject to the conditions, that the Court considers appropriate.
Note 1: For the matters that the Court may take into account when determining whether to grant the injunction, see subsection (7).
Note 2: The terms and conditions of the injunction that apply to a carriage service provider under subsection (1) may be different from those that apply to an online search engine provider under subsection (2).
(4)Without limiting subsection (3), the injunction may:
(a)require the carriage service provider to take reasonable steps to do either or both of the following:
(i)block domain names, URLs and IP addresses that provide access to the online location and that are specified in the injunction;
(ii)block domain names, URLs and IP addresses that the carriage service provider and TEQSA agree, in writing, have started to provide access to the online location after the injunction is made; and
(b)require the online search engine provider to take reasonable steps to do either or both of the following:
(i)not provide search results that include domain names, URLs and IP addresses that provide access to the online location and that are specified in the injunction;
(ii)not provide search results that include domain names, URLs and IP addresses that the online search engine provider and TEQSA agree, in writing, have started to provide access to the online location after the injunction is made.
Parties
(5)The parties to an action under subsection (1) are:
(a)TEQSA; and
(b)the carriage service provider; and
(c)if the application under subsection (1) also sought for the injunction to apply against an online search engine provider—the online search engine provider; and
(d)the person who operates the online location if, but only if, that person makes an application to be joined as a party to the proceedings.
Service
(6)TEQSA must notify:
(a)the carriage service provider; and
(b)if the application under subsection (1) also sought for the injunction to apply against an online search engine provider—the online search engine provider; and
(c)the person who operates the online location;
of the making of an application under subsection (1), but the Court may dispense, on such terms as it sees fit, with the notice required to be sent under paragraph (c) if the Court is satisfied that TEQSA is unable, despite reasonable efforts, to determine the identity or address of the person who operates the online location, or to send notices to that person.
Matters to be taken into account
(7)In determining whether to grant the injunction, the Court may take the following matters into account:
(a)whether disabling access to the online location is a proportionate response in the circumstances;
(b)if the application under subsection (1) also sought for the injunction to apply against an online search engine provider—whether not providing search results that refer users to the online location is a proportionate response in the circumstances;
(c)the impact on any person, or class of persons, likely to be affected by the grant of the injunction;
(d)whether it is in the public interest to disable access to the online location;
(e)if the application under subsection (1) also sought for the injunction to apply against an online search engine provider—whether it is in the public interest not to provide search results that refer users to the online location;
(f)whether TEQSA complied with subsection (6);
(g)any other remedies available under this Act;
(h)any other matter prescribed by the regulations;
(i)any other relevant matter.
Rescinding and varying injunctions
(8)The Court may:
(a)limit the duration of; or
(b)upon application, rescind or vary;
an injunction granted under this section.
(9)An application under subsection (8) may be made by:
(a)any of the persons referred to in subsection (5); or
(b)any other person prescribed by the regulations.
(10)An application under subsection (8) must not request the Court to vary the injunction so that it applies to an online search engine provider that is covered by a declaration under subsection (11).
Declarations excluding online search engine providers
(11)The Minister may, by legislative instrument, declare that:
(a)a particular online search engine provider; or
(b)an online search engine provider that is a member of a particular class;
must not be specified in an application under subsection (1) or (8).
Costs
(12)A carriage service provider or, if applicable, an online search engine provider is not liable for any costs in relation to the proceedings unless the provider enters an appearance and takes part in the proceedings.
Application of the Regulatory Powers Act
(13)Sections 122 to 125 of the Regulatory Powers Act apply in relation to an application under this section for the grant of an injunction, or to the grant of an injunction under this section, in a corresponding way to the way in which they apply to an application under section 121 of that Act for the grant of an injunction or to the grant of an injunction under section 121 of that Act.
Sourced from the Federal Register of Legislation at legislation.gov.au, © Commonwealth of Australia, licensed under CC BY 4.0. Compilations may have been reformatted.