| C2004C05801 | OVERSEAS STUDENTS (REFUNDS) ACT 1990
- Updated as at 30 July 1993 (HISTACT CHAP 1177 #DATE 30:07:1993)
*1* The Overseas Students (Refunds) Act 1990 as shown in this reprint comprises Act No. 128, 1990 amended as indicated in the Tables below. Table of Acts Act Date Date of Application, Number and of Assent commencement saving or year transitional provisions Overseas Students (Refunds) Act 1990 128, 1990 28 Dec 1990 28 Dec 1990 Corporate Law Reform Act 1992 210, 1992 24 Dec 1992 Part 2 (ss. 4-20), ss. 21-26 (1), 27, 28 (2), 174-176, 178-181 and Part 7 (ss. 182-185): 1 Feb 1993 (see Gazette 1993, No. S25) Ss. 26 (2) and 28 (1): 1 Feb 1994 Parts 4 and 5 (ss. 29-173) and 177: 23 June 1993 (see Gazette 1993, No. S186) Remainder: Royal Assent - Table of Amendments ad=added or inserted am=amended rep=repealed rs=repealed and substituted Provision affected How affected S. 5 am. No. 210, 1992 OVERSEAS STUDENTS (REFUNDS) ACT 1990 - LONG TITLE
SECT
An Act to facilitate the refunding of payments made by
overseas students unable to undertake or complete courses
of study in Australia, and for other purposes
OVERSEAS STUDENTS (REFUNDS) ACT 1990 - SECT 1
Short title
SECT
1. This Act may be cited as the Overseas Students (Refunds) Act 1990.*1*
SEE NOTES TO FIRST ARTICLE OF THIS CHAPTER .
OVERSEAS STUDENTS (REFUNDS) ACT 1990 - SECT 2
Commencement
SECT
2. This Act commences on the day on which it receives the Royal Assent.*1*
SEE NOTES TO FIRST ARTICLE OF THIS CHAPTER .
OVERSEAS STUDENTS (REFUNDS) ACT 1990 - SECT 3
Interpretation
SECT
3. In this Act, unless the contrary intention appears:
"assigned debt" means a debt that:
(a) was owed by an educational institution to an overseas student; and
(b) has been assigned to the Commonwealth;
"educational institution" has the meaning given in section 4;
"officer" has the same meaning as in the Public Service Act 1922;
"overseas student" means a person who has made payments to an educational
institution in connection with a course of study at the institution and is
not:
(a) an Australian citizen, a New Zealand citizen or a permanent resident of
Australia; or
(b) a dependant of such a person;
"permanent resident" means a person who has been granted, or who is included
in, an entry permit under the Migration Act 1958 that is in force, other than
a temporary entry permit within the meaning of that Act;
"proceedings to which this Act applies" means proceedings taken by the
Commonwealth in connection with the recovery of an assigned debt, being
proceedings that take place at a time when the overseas student who assigned
the debt is not in Australia.
OVERSEAS STUDENTS (REFUNDS) ACT 1990 - SECT 4
Educational institutions
SECT
4. (1) An institution is an educational institution for the purposes of this
Act if:
(a) the institution is in Australia; and
(b) the institution:
(i) is a higher education institution within the meaning of the
Employment, Education and Training Act 1988; or
(ii) is a technical and further education institution within the meaning
of that Act; or
(iii) is a school within the meaning of that Act (other than a primary
school); or
(iv) is, or has been, engaged in the provision of education, and is
determined in writing by the Minister to be an educational institution for the
purposes of this Act.
(2) The Minister must inform an institution that is the subject of a
determination under subparagraph (1) (b) (iv) that the determination has been
made.
(3) The determination is a disallowable instrument for the purposes of
section 46A of the Acts Interpretation Act 1901.
OVERSEAS STUDENTS (REFUNDS) ACT 1990 - SECT 5
Power to obtain information and documents
SECT
5. (1) The Secretary of the Department, or an officer of the Department
authorised in writing by the Secretary to issue notices under this section,
may, by a notice in writing, require an educational institution, or an agent
of an educational institution, to supply, within 14 days or such longer period
specified in the notice:
(a) the particulars of overseas students who are, or have been, enrolled at
the institution, or from whom the institution has received money; or
(b) the originals or certified copies of specified documents or records
relating to such students or to any persons acting on behalf of such
students;
to the extent that the particulars, documents or other records are in the
possession or control of the institution or agent.
(2) An educational institution, or an agent of an educational institution,
that receives such a notice and fails to comply with it is guilty of an
offence.
Penalty: $3,000.
(3) An educational institution, or an agent of an educational institution,
that, in purported compliance with such a notice, knowingly furnishes
information that is false or misleading in a material particular is guilty of
an offence.
Penalty: Imprisonment for 12 months.
Note: If an offence is only expressed to be punishable by imprisonment,
subsections 4B (2) and (3) of the Crimes Act 1914 allow a court to substitute
an appropriate fine.
(4) A reference in subsections (2) and (3) to an educational institution
includes a reference to:
(a) if the institution is a body corporate:
(i) a liquidator or official manager of the institution; and
(ii) a receiver, or receiver and manager, of property of the
institution; and
(iii) an administrator, within the meaning of the Corporations Law, of
the
institution; and
(iv) an administrator of a deed of company arrangement executed by the
institution under Part 5.3A of that Law; and
(b) if the institution is not a body corporate - a person who has the
executive responsibility for the operation of the institution and:
(i) if that person is a natural person - a person appointed as the
trustee
in bankruptcy of that person; or
(ii) if that person is a body corporate:
(A) a liquidator or official manager of that person; or
(B) a receiver, or receiver and manager, of property of that person; or
(C) an administrator, within the meaning of the Corporations Law, of
that
person; or
(D) an administrator of a deed of company arrangement
executed by that person under Part 5.3A of that Law.
OVERSEAS STUDENTS (REFUNDS) ACT 1990 - SECT 6
Procedure for establishing identity of assignors
SECT
6. (1) The regulations may prescribe procedures for establishing the
identity of an overseas student from whom it is proposed that the Commonwealth
accept the assignment of a debt owed by an educational institution.
(2) The procedures may be specified to relate to a particular country or
class of countries.
OVERSEAS STUDENTS (REFUNDS) ACT 1990 - SECT 7
Evidence of identity
SECT
7. (1) If, in proceedings to which this Act applies, it is established that
the procedures prescribed for the purposes of section 6 were followed, the
assignors identity is taken, for the purposes of the proceedings, to have been
established accordingly unless the contrary is proved.
(2) In such proceedings, a certificate, signed by a person referred to in
subsection (3) and stating that the procedures were followed, is prima facie
evidence of that fact.
(3) For the purposes of subsection (2), the certificate may be signed by a
person who:
(a) is within a class of persons determined in writing by the Minister for
the purposes of this section; and
(b) acted on the Commonwealth's behalf in the assignment of the debt
concerned.
(4) If:
(a) the Commonwealth gives, to another party to proceedings to which this
Act applies, reasonable notice that the Commonwealth proposes to rely on such
a certificate; and
(b) the notice is given together with a copy of the certificate;
the other party must not, in the proceedings, call into question the
certificate unless that party has given the Commonwealth reasonable notice of
its intention to do so.
OVERSEAS STUDENTS (REFUNDS) ACT 1990 - SECT 8
Admission of statutory declarations in evidence
SECT
8. (1) In proceedings to which this Act applies, a statutory declaration, by
the overseas student who assigned the debt, that complies with the
requirements of the Statutory Declarations Act 1959 is prima facie evidence of
the facts stated in the declaration.
(2) For the purposes of this section, a declaration that is made before an
Australian citizen, or a permanent resident, who is:
(a) a member of the staff of an Australian embassy or consulate; and
(b) a person of a kind specified in the regulations;
is taken to have been made before a person of a kind referred to in section 8
of the Statutory Declarations Act 1959.
(3) If:
(a) the Commonwealth gives, to another party to proceedings to which this
Act applies, reasonable notice that the Commonwealth proposes to rely on a
statutory declaration of a kind referred to in subsection (1); and
(b) the notice is given together with a copy of the declaration;
the other party must not require the person who made the declaration to be
available for cross-examination on the declaration in the proceedings unless
that party has given the Commonwealth reasonable notice of its intention to do
so.
OVERSEAS STUDENTS (REFUNDS) ACT 1990 - SECT 9
Conduct by directors, servants and agents
SECT
9. (1) Where, in proceedings for an offence against this Act, it is
necessary to establish the state of mind of a body corporate in relation to
particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by a director, servant or agent of the
body corporate acting within the scope of his or her office, employment or
engagement; and
(b) that the director, servant or agent had the state of mind.
(2) Any conduct engaged in on behalf of a body corporate by a director,
servant or agent of the body corporate acting within the scope of his or her
office, employment or engagement is taken, for the purposes of a prosecution
for an offence against this Act, to have been engaged in also by the body
corporate.
(3) Where, in proceedings for an offence against this Act, it is necessary
to establish the state of mind of a person other than a body corporate in
relation to particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by a servant or agent of the person
acting within the scope of his or her office, employment or engagement; and
(b) that the servant or agent had the state of mind.
(4) Any conduct engaged in on behalf of a person other than a body corporate
by a servant or agent of the person acting within the scope of his or her
office, employment or engagement is taken, for the purposes of a prosecution
for an offence against this Act, to have been engaged in also by the
first-mentioned person.
(5) A reference in this section to a person acting within the scope of his
or her office, employment or engagement in relation to a body corporate or
another person does not include conduct by the first-mentioned person engaged
in with the intention of doing harm, or concealing harm done by him or her or
another, to the body corporate or other person.
(6) A reference in subsection (1) or (3) to the state of mind of a person
includes a reference to:
(a) the knowledge, intention, opinion, belief or purpose of the person; and
(b) the person's reasons for the intention, opinion, belief or purpose.
(7) A reference in this section to a director of a body corporate includes a
reference to a constituent member of a body corporate incorporated for a
public purpose by a law of the Commonwealth, of a State or of a Territory.
(8) A reference in this section to engaging in conduct includes a reference
to failing or refusing to engage in conduct.
(9) A reference in this section to an offence against this Act includes a
reference to an offence created by section 5, 6, 7 or 7A, or subsection 86
(1), of the Crimes Act 1914 that relates to this Act.
OVERSEAS STUDENTS (REFUNDS) ACT 1990 - SECT 10
Delegation
SECT
10. The Minister may, in writing, delegate to:
(a) the Secretary of the Department; or
(b) a person who holds, or performs the duties of, a Senior Executive
Service office within the Department;
all or any of the Minister's powers under this Act.
OVERSEAS STUDENTS (REFUNDS) ACT 1990 - SECT 11
Regulations
SECT
11. The Governor-General may make regulations, not inconsistent with this
Act, prescribing all matters necessary or convenient to be prescribed for
carrying out or giving effect to this Act.
|