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For the relevant laws and policy explanations noted below can be found in the Migration Act 1958 , Migration Regulations and the Policy Advice Manual . A legal practitioner will also need be aware of plethora of policy guidelines, Ministerial Directions, Court judgments of the Migration Review Tribunal, Refugee Review Tribunal and the Administrative Appeals Tribunal and High Court Decisions.
Section 105 Condition 8105 – important - 20 hours a week and the definition of 20 hrs
105 Condition 8105
A 'week' is defined in condition 8105 as commencing on Monday and ending on Sunday.
Note: The 20 hours week relates to each week during which the course is in session. The 20 hours a week cannot be "averaged out" over the duration of the course.
Condition 8105 applies to students who are granted student visas on or after 26 April 2008 as a primary applicant or those granted a student visa with PTW before 26 April 2008. They are not permitted to undertake paid work (voluntary work may be permitted in certain circumstances - see section 103 Condition 8101 for further explanation) until they have commenced their course in Australia. They are also not permitted to work more than 20 hours a week while the course in which they are enrolled is in session. However, this work limitation does not include work that is a registered component of the student's course of study or training for the award to be obtained.
A course is considered to be 'in session':
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for the duration of the advertised semesters (including periods when exams are being held);
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if the studies have been completed but the Confirmation of Enrolment is still in effect ; (with the exception of Masters by Research or PhD students who have submitted their thesis - see section 106 Postgraduate research students - Thesis submitted for marking) and
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if a student is undertaking another course during a break from their main course and the points will be credited towards their main course.
Students who complete their course as scheduled have access to unrestricted permission to work during the period left on their visa, unless they have enrolled in further studies. Officers should also note the effect of condition 8202. Students whose enrolment has been cancelled due to the default of their education provider have access to unrestricted permission to work until they secure alternative enrolment and commence this course.
CONDITIONS 8101, 8104 & 8105 ("WORK RESTRICTIONS")
This Part comprises:
101 Purpose
Conditions 8101, 8104 and 8105 reflect OSP policy on students and family unit members working in Australia.
102 Permission to work (PTW)
102.1 PTW arrangements from 26 April 2008
Since 1 December 1998, condition 8101 ("no work") had been mandatory to all "initial" student visas. Students and their family unit members were required to make a separate application for student visa with permission to work once they arrived in Australia and commenced their course. This was designed to ensure that students were genuinely entering Australia for the purpose of study and had commenced their course before being allowed access to work rights.
Changes in the Student Visa Program and the introduction of the ESOS legislation resulted in increased immigration compliance and a significant decrease in students reported as working unlawfully. It was therefore decided that the two stage process of first applying for a student visa and then applying for PTW become a one stage process. This change came into effect from 26 April 2008. All student visas granted on or after this date automatically include permission to work - that is they are granted subject to condition 8105 (primary applicants), or 8104 (dependent applicants), rather than condition 8101 (no work) . Conditions 8105 and 8104 have changed as a result of the new arrangements. New versions of these conditions also came into effect from 26 April 2008.
102.2 PTW and student visas granted before 26 April 2008
All students who were granted a student visa subject to 8101 (no work) before 26 April 2008 will still have to apply for PTW. PTW can be granted only onshore and only after the student has submitted original evidence from their education provider that they have commenced study. Applications for a student visa with PTW can be made onshore only. Combined family applications are permitted.
Applicants holding a subclass 576 must submit evidence from their education provider that the student has commenced their course of study or training. Defence students and family members must provide a written statement from Defence supporting the grant of the visa. Currently, Defence Students are not approved work rights by Defence b family members may be permitted to work.
103 Condition 8101
103.1 'No work'
Condition 8101 states that the holder 'must not engage in work in Australia'. (Work is defined in regulation 1.03.). Voluntary work may be permitted in certain circumstances - see section 103.2 Volunteer Work.
Condition 8101 applies only to student visas granted before 26 April 2008. Visas granted on or after this date will not be subject to 8101. Where a student or dependant is subject to condition 8101 they may make a fresh application for a student visa with PTW that will enable them to be granted condition 8105 (primary applicant) or 8104 (dependant applicant).
103.2 Volunteer Work
Work, as defined in regulation 1.03, does not include certain activities for which no remuneration is received. Student visa holders and their dependants may undertake volunteer work outside of the 20 hour work limitation if:
their main purpose is to study in Australia and any voluntary work remains incidental to this
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the work involved would not otherwise be undertaken by an Australian resident and
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the work is genuinely voluntary for a non profit organisation and that no remuneration, in cash or kind, is received in return for the activity.
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Unpaid work that does not conform with the description of volunteer work above, must be undertaken within the work limitation.
104 Condition 8104
104.1 Scope
Condition 8104 states that the holder 'must not engage in work for more than 20 hours a week'. Dependants of 573, 574 or 576 primary visa holders who have commenced a Masters or Doctorate Degree are exempt from this requirement. It applies to those family unit members who have been granted PTW or a student visa granted on or after 26 April 2008.
A 'week' is defined as commencing on Monday and ending on Sunday.
If a visa holder is suspected of contravening the condition officers will need to investigate the number of hours worked in a week which commences on Monday and not rely on pay slips which may cut across two separate weeks.
104.2 PTW and Condition 8104
From 26 April 2008 all dependants who are granted a student visa are subject to condition 8104. Condition 8104 restricts dependents from undertaking work (voluntary work may be permitted in certain circumstances- see section 103 Condition 8101) until the primary student has commenced their course of study in Australia. It also restricts them to no more than 20 hours of work per week at all times. The exception is for dependents of students who have commenced a masters or doctorate course. Dependents of these students may work unlimited hours under condition 8104 - see section 104.3 PTW & family members of master/doctorate students. Dependants granted a student visa before 26 April 2008 will still have to apply for PTW to gain condition 8104.
A 'week' is defined in condition 8104 as commencing on Monday and ending on Sunday. Note that the 20 hours a week relates to each week during which the course is in session. The 20 hours a week cannot be "averaged out" over the duration of the course.
104.3 PTW & family members of master/doctorate students
Students may undertake a masters or doctorate degree in subclasses 573, 574 and 576.
Under condition 8104 family members of students who have commenced a Masters or Doctorate degree are exempt from the 20 hours per week work limitation. This means they are permitted to work unrestricted hours. If the student has commenced a preliminary course only (for example an ELICOS course) their dependants are restricted to 20 hours per week of work until the student has commenced their Masters or Doctorate course. At this stage they are permitted to work unlimited hours.
Note: The Masters by coursework qualification has been specified by legislative instrument against the Higher Education Sector since 1 July 2004.
106 Postgraduate research students - Thesis submitted for marking
Postgraduate research students studying on a subclass 574 student visa may be granted a further visa for up to six months while their thesis is being marked - see section 38.5 Postgraduate Research (574). This requires them to present a letter from their education provider as evidence of their need to remain in Australia. As the CoE is no longer in effect, their course is considered to be 'out of session' and they may work unlimited hours.
Some providers however, may issue CoEs that include the time taken for thesis marking. Where there is a CoE, the visa should be granted in accordance with the CoE end date. If further time is needed once the CoE end date passes then the student may apply for a further visa using a letter from their education provider.
To ensure consistency of work rights for subclass 574 students, the course may be considered 'out of session' once the student has submitted their thesis for marking, regardless of whether the CoE is still in effect. This enables them to work unlimited hours while they wait for their thesis to be marked.
107 Permission to work and children under 18
107.1 Children under school leaving age - state/territory law prevails
All states and territories prohibit by law the employment of children under the school leaving age (in most states, 15 years) during school hours. Although a child might, in terms of student visa conditions, have permission to work either as the primary visa holder or consequential to their being a member of the student’s family unit, they must still comply with state/territory laws at all times.
107.2 Children under 18
Students under 18 who were granted a student visa before 26 April 2008 and lodge PTW via eVisa will automatically be referred to an office. Officers should not undo the referral in ICSE until they have evidence from the parents/person with legal custody/guardian that they agree to that student working. It is possible that the some referrals will be made on applications where the student is over 18. In this situation officers can undo the referral.
Work rights for international students
Australian standards and industrial instruments around superannuation, occupational health and safety, workers compensation, taxation and workplace relations - plus relevant state and territory laws - apply to the employment of all international students on temporary visas.
Fair Work Australia - Federal Legislation workers rights and ...
myfuture: Australia's career information service
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Fair Work Ombudsman
Workers' rights | Oxfam Australia
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Study in Australia 
