ESOS Act offences and jail terms in 2026: a plain-English list
A plain-English list of the ESOS Act 2000 offences carrying jail terms in 2026, covering the 2-year and 6-month penalties and the Criminal Code note.
Under the Education Services for Overseas Students Act 2000 (ESOS Act 2000), the imprisonment penalties set out in the offence provisions covered here are two years and six months. According to the Australian Government’s Federal Register of Legislation text for the Education Services for Overseas Students Act 2000 (as at September 2026), two of the offence provisions covered in this article carry a jail term: section 101 carries imprisonment for 2 years and section 107 carries imprisonment for 6 months. This article covers those two provisions and is not a complete list of every offence in the Act. Both provisions carry a note that Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. This article is general information only and is not personalised advice on your circumstances — for a specific matter, rely on the official legislation and any professional guidance you obtain, and remember that the Act can change, so the latest official version is the one to check.
What are the ESOS Act 2000 imprisonment penalties in 2026?
The table below sets out the two offence provisions covered here that specify a jail term, using the wording of the Act itself.
| Section | What the offence covers | Jail term stated in the Act |
|---|---|---|
| s 101(1) | Making an offer to an overseas student, intending overseas student or prescribed non-citizen to be provided with a course; inviting such a person to undertake or apply to undertake a course; or holding out a registered provider as able or willing to provide a course — while an Immigration Minister’s suspension certificate is in effect for that provider. | Imprisonment for 2 years |
| s 107 | In written material (including electronic form), making an offer, inviting a student to undertake or apply for a course, or holding oneself out as able or willing to provide a course at a location, where the material fails to identify the registered provider, the provider’s unique identifier allocated under paragraph 14A(4)(d), or any other information prescribed by the regulations. | Imprisonment for 6 months |
The 6-month period in section 100 is the duration of a suspension certificate, not a term of imprisonment, so it is not listed here as a penalty.
Who counts as a registered provider?
The offences refer to a registered provider. Under s 10, the ESOS agency for a provider may register the provider to provide a course or courses at a location or locations if the provider meets the registration requirements, and the ESOS agency must use a risk management approach when considering whether to register the provider. A note to s 10 states that the Minister may determine that the ESOS agency is not required to, or must not, deal with applications for registration for a period (see section 14C). This matters because both the 2-year and 6-month offences are framed around offers, invitations or holding out in relation to a registered provider or a course provided by one.
When does the 2-year jail term apply?
The 2-year penalty in s 101 applies to three kinds of conduct while an Immigration Minister’s suspension certificate is in effect for the registered provider: making an offer for a person to be provided with a course at any location by the provider; inviting the person to undertake or apply to undertake a course offered by the provider; or holding the provider out as able or willing to provide a course to overseas students or prescribed non-citizens (s 101(1)). The offence applies to offers or invitations made to an overseas student, an intending overseas student, or a "prescribed non-citizen", which is defined in s 101(3) as a non-citizen within the meaning of the Migration Act 1958 who is of a kind prescribed for this section in regulations under that Act. Section 101(2) confirms that the provider is still registered for all other purposes while the certificate is in effect, so the suspension certificate does not by itself cancel registration.
What is an Immigration Minister’s suspension certificate, and how long does it last?
A suspension certificate is the trigger for the 2-year offence. Under s 100(1), an Immigration Minister’s suspension certificate remains in effect for the period of 6 months beginning on the day that it says it takes effect. Under s 100(2), the Immigration Minister may revoke the certificate at any time by giving the registered provider written notice. This 6-month period is the life of the certificate; it is not a penalty or a jail term. Because the certificate is central to the s 101 offence, understanding when it starts and ends is essential to understanding when the 2-year exposure applies.
Can a suspension certificate be extended or replaced?
Yes. Under s 102(1), unless by the end of the period for which the certificate is in effect the registered provider has satisfied the Immigration Minister that a further certificate should not be given, the Immigration Minister may give the provider a further Immigration Minister’s suspension certificate. The Minister does not have to follow the procedure in subsections 98(1) and (2) in order to give a further certificate (s 102(2)). However, s 102(3) requires the Minister to table a copy of the further certificate in both Houses of Parliament within 15 sitting days of giving it to the provider. Under s 102(4), these rules apply to a further certificate (or certificates) in the same way as they apply to an original certificate.
What conduct carries the 6-month jail term?
The 6-month penalty in s 107 is about written material. A person commits an offence if, in written material including electronic form, the person makes an offer to an overseas student or intending overseas student to provide a course at a location; invites such a student to undertake or apply to undertake a course at a location; or holds himself, herself or itself out as able or willing to provide the course at a location to overseas students — and the material fails to identify any one or more of the following: the registered provider for the course (s 107(d)); the unique identifier allocated to the registered provider under paragraph 14A(4)(d) (s 107(e)); or any other information prescribed by the regulations (s 107(f)). In plain terms, if written or electronic advertising, offers or invitations do not name the registered provider or its allocated identifier, the person responsible can be liable to the 6-month penalty.
How do the Criminal Code’s general principles apply?
Both s 101 and s 107 end with the same note: "Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility." This means the general principles in Chapter 2 of the Criminal Code apply to these Commonwealth offences. In practice, those principles govern how criminal responsibility is established — including the requirement to prove the conduct and any fault element (such as intention or recklessness) that the offence requires, the burden and standard of proof, and the general defences that may be available. The jail term stated in each provision is the maximum penalty a court can impose for that offence; it is not an automatic sentence. Whether an offence is made out depends on the specific elements of the provision as applied through the Criminal Code principles.
Does the Register have to be updated when a certificate is issued?
Under s 103(1), the Secretary must cause the Register to be altered appropriately if the Immigration Minister has given or revoked an Immigration Minister’s suspension certificate, or a further such certificate. However, s 103(2) provides that a failure to do so does not affect the validity of the certificate or revocation. The practical point is that the validity of a suspension certificate — and therefore the operation of the 2-year offence in s 101 — does not depend on the Register having been updated.
Frequently Asked Questions
What is the maximum jail term under the ESOS Act 2000 for offering a course while a suspension certificate is in effect?
The stated penalty is imprisonment for 2 years (s 101(1)). This is the maximum a court can impose for that offence; the actual outcome depends on the case and on the Criminal Code principles.
Can an education agent or any person be liable to 6 months’ imprisonment under s 107?
Yes. Section 107 applies to "a person" who, in written material including electronic form, makes an offer, issues an invitation, or holds out as able or willing to provide a course, and the material fails to identify the registered provider or its unique identifier. The stated penalty is imprisonment for 6 months.
Does a 6-month suspension certificate mean the provider is no longer registered?
No. The 6-month period in s 100(1) is the duration of the Immigration Minister’s suspension certificate, not a deregistration. Section 101(2) expressly states that the provider is still registered for all other purposes while the certificate is in effect.
What does the note about Chapter 2 of the Criminal Code mean for these offences?
It means the general principles of criminal responsibility in Chapter 2 of the Criminal Code apply. The prosecution must prove the required physical and fault elements of the offence, and general defences remain available; the penalty in the Act is the maximum, not a mandatory term.
If the Register is not updated, is the suspension certificate still valid?
Yes. Under s 103(2), a failure to alter the Register does not affect the validity of the certificate or its revocation, so the certificate remains effective for the purposes of the s 101 offence.
Can the Immigration Minister issue another suspension certificate after the first one expires?
Yes. Under s 102(1), if the provider has not satisfied the Minister by the end of the certificate period, the Minister may give a further certificate, and must table it in both Houses of Parliament within 15 sitting days of giving it to the provider (s 102(3)).