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Strict liability offences under the ESOS Act: what 60 penalty units means in 2026

What strict liability means under the ESOS Act 2000, which duties carry 60 penalty units, and who is liable for unincorporated providers.

Under the Education Services for Overseas Students Act 2000 (Cth) (ESOS Act), failing to meet several core reporting and record-keeping duties is a criminal offence of strict liability carrying a maximum penalty of 60 penalty units. Strict liability is the key point: the prosecution does not have to prove that the provider meant to do the wrong thing, knew it was doing the wrong thing, or was reckless about it. This article works from the compiled text of the Act published on the Australian Government's Federal Register of Legislation, as at the September 2026 version of that official text, and it is general information only rather than advice on any individual case — for a specific situation, check the current official text or get advice from a qualified professional.

What does "strict liability" mean in plain English?

In ordinary criminal law, a court usually looks not just at what a person did, but at their state of mind — intention, knowledge, recklessness. Strict liability removes that step for the elements the provision covers. The conduct itself is enough.

The ESOS Act says this directly. After setting the 60 penalty unit penalty for each of these offences, it adds a short line: "An offence under subsection … is an offence of strict liability," with a note pointing to section 6.1 of the Criminal Code for the meaning of strict liability. So the Act is telling the reader, in its own words, that the mental side of the offence has been stripped out.

Two practical consequences follow:

A provider cannot answer a charge by saying "we did not intend to breach it" or "we did not realise the deadline had passed." That state of mind is not part of what must be proven.
The question at hearing narrows to whether the required thing was done, by whom, and by when. Administrative explanations — a busy period, a staff departure, a misplaced file — do not of themselves decide guilt.

This is a demanding standard, which is why the duties it attaches to are mechanical ones: enter information, keep records, publish a list, answer a written request.

Which ESOS Act duties carry 60 penalty units?

The 60 penalty unit, strict liability pattern appears in each of the five provisions set out below.

Provision	Duty	Penalty	Strict liability?	Timing detail in the Act
s 19	Give information about accepted students (name and prescribed details, course, non-commencement, termination, changes in course identity or duration, other prescribed matters), entered in the system established under s 109	60 penalty units	Yes (s 19(6))	14 days where the student is under 18 and the information is about non-commencement or termination; otherwise 31 days. Student visa condition breaches: as soon as practicable
s 21	Keep and retain student records (residential address, mobile and email if any, other prescribed details, assessment outcomes)	60 penalty units	Yes (s 21(6))	Confirm details in writing with the student at least every 6 months while they remain an accepted student; retain for at least 2 years after they cease to be one
s 21A	Maintain a list of the provider's education agents, publish it on the provider's website and in any other prescribed manner, and comply with any requirements of regulations made for the purposes of s 21A(2)	60 penalty units	Yes (s 21A(1B))	Applies to failure to comply with s 21A(1)
s 21B	Comply with a written request from the Secretary for information about education agent commissions	60 penalty units	Yes (s 21B(8))	The request must allow at least 30 days from when it is given, or any later day the Secretary allows
s 32	Engage in conduct that contravenes a requirement of s 28 or 29, where the provider is not covered by s 31	60 penalty units	Yes (s 32(3))	Does not apply to a contravention of regulations made under s 30

Two details in that table are worth pulling out, because they are easy to miss.

First, s 19(2) and (2A): a provider must give particulars of a breach by an accepted student of a prescribed student visa condition as soon as practicable after the breach occurs, and must do so even if the student has stopped being an accepted student of that provider. The obligation outlasts the enrolment.

Second, s 21B: the Secretary may ask for the total dollar amount given to each education agent, the value and description of non-monetary benefits given to each agent, and the number of accepted students recruited by each agent. The request must be in writing and must specify the reporting period, the due day, and the manner or form of the response — which can include entering the information into the system established under s 109.

The Act states these penalties as penalty units; it does not set out a dollar figure in these provisions.

Why 60 penalty units here but 10 penalty units elsewhere?

The gap is deliberate, and the Act explains it in s 44. The regulations may make it an offence to breach prescribed provisions of the national code, but that offence "must be punishable by a fine of no more than 10 penalty units."

So the structure is two-tiered. Parliament has set 60 penalty units for the duties it wrote into the Act itself — the reporting, records, agent list, commission information and s 28/29 obligations above. The smaller 10 penalty unit ceiling is the maximum available for offences created by regulation for national code breaches. When a provider is working out how serious a particular failure is, the first question is whether the duty comes from the Act or from the national code.

Who carries the duty when the provider is an unincorporated body?

This is where strict liability meets personal responsibility. An unincorporated body is not a separate legal entity in the way a company is, so the Act routes the duty through a named individual.

Under s 19(4), if the registered provider is an unincorporated body, it is the principal executive officer who must give the information.
Under s 21(4), it is the principal executive officer who must keep and retain the records.
Under s 32(1), the offence is committed if the person is a registered provider, or, if the registered provider is an unincorporated body, the person is the principal executive officer of the provider.

In ss 19(5) and 21(5) the offence provision names both: "A registered provider, or the principal executive officer of a registered provider that is an unincorporated body, who fails to comply with this section commits an offence." Section 32(1) reaches both in different words: a person commits an offence if the person is a registered provider, or, if the registered provider is an unincorporated body, the person is the principal executive officer of the provider. The individual does not stand behind the organisation; for these duties, the individual is the one who must act.

The text of ss 21A and 21B reproduced on the register states the obligation on the registered provider, without the same express reference to a principal executive officer in the subsections set out above. In the provisions set out above, the "principal executive officer" formula appears in the unincorporated provider provisions of ss 19(4), 21(4) and 32(1).

Can action be taken even if nobody is prosecuted?

Yes, and the Act flags it in the notes attached to the duty provisions. The notes to ss 19, 21, 21A and 21B each say that if a registered provider breaches the section, the ESOS agency for the provider may take action under Division 1 of Part 6 against the provider.

The wording is important: the agency action is not described as a substitute for the offence, and the offence is not described as a substitute for the agency action. They sit side by side. A breach reported through the oversight system does not require a criminal charge, and a criminal charge is not dependent on the agency having acted first.

Separately, the note to s 19 records that it is an offence to provide false or misleading information in complying, or purporting to comply, with that section — see s 108. That is a different matter from simply failing to report on time, and it addresses the accuracy of what is given, not just whether it is given.

Does the offence keep running while the failure continues?

Usually, continuing failures are dealt with under s 4K of the Crimes Act 1914, which can treat an ongoing contravention as a fresh offence for each day it continues. The ESOS Act switches it off for the commission-information offence: s 21B(9) states that s 4K of the Crimes Act 1914 does not apply in relation to an offence under s 21B(7).

The Act does not say the same for the other offences discussed here. That asymmetry is a drafting choice rather than something to be read across by analogy.

What does this mean for students and families?

Most of these duties are owed by providers, not by students. But they shape what a student experiences. The information a provider enters about commencement, termination and course changes feeds the national record that student visa administration relies on, and s 19(2) requires the provider to report a breach of a prescribed student visa condition as soon as practicable — even after the student has left that provider.

For a student, the practical reading is that enrolment status, course changes and attendance-related matters are not purely private administrative issues between student and school. They are matters the provider is legally required to report, on a fixed timetable, with a criminal penalty attached for failure.

Suppose a provider is an unincorporated body and its records have fallen behind. Under s 21(4), the person who must fix that is the principal executive officer, and the failure is one of strict liability — an explanation that nobody meant to let it lapse does not, by itself, resolve the legal position.

Frequently Asked Questions

What does "60 penalty units" actually mean?

It is the maximum penalty the Act states for the offence, expressed in penalty units rather than dollars. The provisions set out above do not convert that figure into a dollar amount, so anyone needing the current dollar value should check the rate published in the official sources.

Can a provider be convicted if the failure was an honest mistake?

Strict liability means the prosecution does not have to prove intention, knowledge or recklessness about the failure. An honest oversight may matter to how an ESOS agency responds, but under the Act's own wording it is not part of what must be proven for the offence itself.

Who is the "principal executive officer"?

The Act uses the term for unincorporated registered providers in ss 19(4), 21(4) and 32(1), but the provisions set out above do not define it. It refers to the individual who carries the body's chief executive role, and whether a particular person holds that role depends on how the body is actually structured and governed.

Are these the only penalties in the ESOS framework?

No. Section 44 allows the regulations to create offences for breaching prescribed provisions of the national code, capped at a fine of no more than 10 penalty units. The 60 penalty unit offences are the ones the Act creates directly.

Does ESOS agency action replace a criminal charge?

No. The notes to ss 19, 21, 21A and 21B state that the provider's ESOS agency may take action under Division 1 of Part 6 for a breach. That is a separate pathway from prosecution, and neither one depends on the other.

Does the commission-reporting offence continue day by day?

No, not on that basis. Section 21B(9) expressly disapplies s 4K of the Crimes Act 1914 (continuing offences) for the offence under s 21B(7). The Act does not disapply it for the other offences discussed here.

Does this article apply to a specific provider's situation?

This is general information about how the Act is written, based on the September 2026 official text, and it is not advice about any individual case or a substitute for professional advice. Penalties, duties and the way they are enforced should be confirmed against the current official text.