Education Legislation Amendment (Provider Integrity and Other Measures) Act 2017 (83 of 2017)
Schedule 3 Amendment of the Higher Education Support Act 2003
Part 1 Amendments
Higher Education Support Act 2003
37 At the end of Chapter 5
Add:
Part 5-8 - Regulatory powers
215-1 What this Part is about
Certain persons have monitoring and investigation powers under the Regulatory Powers Act to ensure this Act is being complied with.
This Part also provides for the application of the Regulatory Powers Act in relation to civil penalties, infringement notices, enforceable undertakings and injunctions.
215-5 Monitoring powers
(1) The provisions of this Act (other than Schedule 1A) are subject to monitoring under Part 2 of the *Regulatory Powers Act.
Note 1: 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.
Note 2: Schedule 1A of this Act contains separate monitoring and investigation powers in relation to matters dealt with in that Schedule: see Subdivision 5A-C of that Schedule.
(2) Information given in compliance or purported compliance with a provision mentioned in subsection (1) 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.
(3) For the purposes of Part 2 of the *Regulatory Powers Act as it applies in relation to the provisions mentioned in subsection (1):
(a) each *HESA investigator and *TEQSA investigator is an authorised applicant; and
(b) each HESA investigator and TEQSA investigator is an authorised person; and
(c) a *judicial officer is an issuing officer; and
(d) for an authorised person who is a HESA investigator, the *Secretary is the relevant chief executive; and
(e) for an authorised person who is a TEQSA investigator, the Chief Executive Officer of *TEQSA is the relevant chief executive; and
(f) each *applicable court is a relevant court.
(4) 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 this Act (other than Schedule 1A).
215-10 Investigation powers
(1) A provision is subject to investigation under Part 3 of the *Regulatory Powers Act if it is:
(a) a *civil penalty provision of this Act (other than Schedule 1A); or
(b) an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act (other than Schedule 1A).
Note 1: 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.
Note 2: Schedule 1A of this Act contains separate monitoring and investigation powers in relation to matters dealt with in that Schedule: see Subdivision 5A-C of that Schedule.
(2) For the purposes of Part 3 of the *Regulatory Powers Act as it applies in relation to the provisions mentioned in subsection (1):
(a) each *HESA investigator and *TEQSA investigator is an authorised applicant; and
(b) each HESA investigator and TEQSA investigator is an authorised person; and
(c) a *judicial officer is an issuing officer; and
(d) for an authorised person who is a HESA investigator, the *Secretary is the relevant chief executive; and
(e) for an authorised person who is a TEQSA investigator, the Chief Executive Officer of *TEQSA is the relevant chief executive; and
(f) each *applicable court is a relevant court.
(3) 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 this Act (other than Schedule 1A).
215-15 Civil penalty provisions
(1) Each *civil penalty provision of this Act (other than Schedule 1A) is enforceable under Part 4 of the *Regulatory Powers Act.
Note 1: 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.
Note 2: Schedule 1A of this Act contains separate monitoring and investigation powers in relation to matters dealt with in that Schedule: see Subdivision 5A-A of that Schedule.
(2) For the purposes of Part 4 of the *Regulatory Powers Act as it applies in relation to the provisions mentioned in subsection (1):
(a) each of the following is an authorised applicant:
(i) the *Secretary;
(ii) an SES employee, or an acting SES employee, in the Department; and
(b) each *applicable court is a relevant court.
215-20 Infringement notices
(1) A *civil penalty provision of this Act (other than Schedule 1A) is subject to an infringement notice under Part 5 of the *Regulatory Powers Act.
Note 1: Part 5 of the Regulatory Powers Act creates a framework for using infringement notices in relation to provisions.
Note 2: Schedule 1A of this Act contains separate monitoring and investigation powers in relation to matters dealt with in that Schedule: see Subdivision 5A-B of that Schedule.
(2) For the purposes of Part 5 of the *Regulatory Powers Act as it applies in relation to the provisions mentioned in subsection (1):
(a) each of the following is an infringement officer:
(i) a member of the staff of TEQSA (within the meaning of the *TEQSA Act) who is an SES employee or an acting SES employee;
(ii) a member of the staff of TEQSA (within the meaning of the *TEQSA Act) who is an APS employee who holds or performs the duties of an Executive Level 2 position or an equivalent position;
(iii) an SES employee, or an acting SES employee, in the Department; and
(b) the relevant chief executive is:
(i) for an infringement notice given by an infringement officer covered by subparagraph (a)(i) or (ii) - the Chief Executive Officer of *TEQSA; or
(ii) for an infringement notice given by an infringement officer covered by subparagraph (a)(iii) - the *Secretary.
215-25 Enforceable undertakings
(1) The provisions of this Act (other than Schedule 1A) 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.
(2) For the purposes of Part 6 of the *Regulatory Powers Act as it applies in relation to the provisions mentioned in subsection (1):
(a) the *Secretary is an authorised person; and
(b) each *applicable court is a relevant court.
215-30 Injunctions
(1) The provisions of this Act (other than Schedule 1A) 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.
(2) For the purposes of Part 7 of the *Regulatory Powers Act as it applies in relation to the provisions mentioned in subsection (1):
(a) the *Secretary is an authorised person; and
(b) each *applicable court is a relevant court.
215-35 Appointment of investigators
(1) The *Secretary may, in writing, appoint a person as a HESA investigator .
(2) The Chief Executive Officer of *TEQSA may, in writing, appoint a member of the staff of TEQSA (within the meaning of the *TEQSA Act) as a TEQSA investigator .
(3) A person must not be appointed as a *HESA investigator, or a *TEQSA investigator, unless the appointer is satisfied that the person has the knowledge or experience necessary to properly exercise the powers of such an investigator.
(4) A *HESA investigator, and a *TEQSA investigator, must, in exercising powers as such, comply with any directions of the appointer.
(5) If a direction is given under subsection (4) in writing, the direction is not a legislative instrument.
215-40 Delegation of regulatory powers
(1) The *Secretary may, in writing, delegate his or her powers and functions under the *Regulatory Powers Act as it applies in relation to this Act (other than Schedule 1A), to an SES employee, or an acting SES employee, in the Department.
(2) The Chief Executive Officer of *TEQSA may, in writing, delegate his or her powers and functions under the *Regulatory Powers Act as it applies in relation to this Act, to a member of the staff of TEQSA (within the meaning of the *TEQSA Act) who is:
(a) an SES employee or an acting SES employee; or
(b) an APS employee who holds or performs the duties of an Executive Level 2 position or an equivalent position.
(3) A person exercising powers or performing functions under a delegation under subsection (1) or (2) must comply with any directions of the delegator.
215-45 Contravening offence and civil penalty provisions
(1) This section applies if a provision of this Act provides that a person contravening another provision of this Act (the conduct provision ) commits an offence or is liable to a civil penalty.
(2) For the purposes of this Act, and the *Regulatory Powers Act to the extent that it relates to this Act, a reference to a contravention of an offence provision or a *civil penalty provision includes a reference to a contravention of the conduct provision.
215-50 Certain references to higher education provider include references to agent
A reference in a *civil penalty provision in this Act to a higher education provider includes a reference to a person acting on behalf of the provider.
215-55 Other enforcement action
To avoid doubt, taking action under this Part does not limit the taking of action under any other provision of this Act.