Bills Digest no. 48 2005–06
Education Services for Overseas Students Amendment Bill
2005
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Endnotes
Contact Officer & Copyright Details
Passage History
Education Services for
Overseas Students Amendment Bill
2005
Date Introduced: 14 September 2005
House: House of
Representatives
Portfolio: Education, Science and Training
Commencement: The main amendments (Schedule 1) commence at the
same time as Schedule 1 to the Higher Education Legislation
Amendment (2005 Measures No. 4) Act 2005
To amend the Education Services for Overseas Students Act 2000
(the ESOS Act) to:
- permit the operation of a foreign higher education provider;
and
- ensure that registered providers can continue to charge
overseas students tuition fees that include an amount for any
action that the provider is required to undertake because of the
ESOS Act or the National Code of Practice for Registration
Authorities and Providers of Education and Training to Overseas
Students.
Background
The ESOS Act regulates education services for overseas students.
At present, the Act requires that an education provider must be a
resident of Australia in order to be registered.
On 29 October 2004 the State of South Australia and Carnegie
Mellon signed Heads of Agreement expressing their intention to
collaborate in the establishment of a privately-owned university in
Adelaide. The new institution will be part of Carnegie Mellon
University, which is resident in Pittsburgh, USA. It is intended
that the institution will provide courses to both Australian and
overseas students.
In order to permit the operation of this foreign institution in
Australia, amendments are required to both the ESOS Act and the
Higher Education Support Act 2003 (the HESA). The Higher
Education Legislation Amendment (2005 Measures No.4) Bill 2005
contains the necessary amendments to the HESA. Readers should
consult the Digest for that Bill for background on the Carnegie
Mellon proposal.
The Bill adds a new sub-section 18-2 to the
ESOS Act. This states that a registered provider does not breach
its obligations under this Act or any other Act relating to
education if it charges overseas students tuition fees which
include amounts for actions that the provider is required to
undertake because of the ESOS Act or the National Code. The latter
is a reference to the National Code of Practice for Registration
Authorities and Providers of Education and Training to Overseas
Students .(1) Providers registered under the ESOS Act
are required to comply with this Code. The Code contains the
following:
Student support services
45. The registered provider must have in place
appropriate support services and be able to demonstrate the advice
provided to intending overseas students on these services. These
must include appropriate arrangements for independent grievance
handling/dispute resolution, which are inexpensive and include a
nominee of the student if the student so chooses. The procedures
must allow for prompt resolution having regard to the duration of
the overseas student's stay in Australia on a student
visa.
46. The registered provider must ensure that upon
arrival, overseas students have access to information or
counselling services in the following areas:
46.1 Orientation
46.2 Academic progress
46.3 Further study
46.4 Accommodation
47. The registered provider must discharge their
responsibility under DIMA requirements to approve
accommodation/welfare arrangements for overseas students under 18
years of age.
48. The registered provider must appoint a
suitably qualified person as student contact officer, and ensure
that the officer is aware of their responsibilities. The registered
provider must advise commencing students of the contact details for
this officer. The officer will be responsible for provision of
support services to overseas students, including counselling, which
will:
48.1 Promote the successful adjustment by overseas
students to life and study at an Australian institution.
48.2 Assist students to resolve problems which
could impede successful completion of their study
programs.
Section 7 (2) of the ESOS Act provides that money received by a
registered provider from an overseas student for a course ( course
money ) includes:
(a) tuition fees; and
(b) any amount received by the provider that the
provider is to pay, on behalf of the student, to a registered
health benefits organisation (within the meaning of the National
Health Act 1953 ); and
(c) any other amount that the student had to pay
the provider, directly or indirectly, in order to undertake the
course.
The amendment thus enables registered providers to recoup the
cost of the support services required by the Code as it is part of
the student s tuition fee and would come within the meaning of
course money .
However, how the amendment works alongside the Higher Education
Support Amendment (Abolition of Compulsory Up-Front Student Union
Fees) Bill 2005 (the VSU Bill) currently before Parliament may be
of issue. The VSU Bill contains the following provision:
A higher education provider must not require a
person enrolled with, or seeking to enrol with, the provider to pay
to the provider or any other entity an amount for the provision to
students of an amenity, facility or service that is not of an
academic nature, unless the person has chosen to use the amenity,
facility or service.(2)
It might be argued that this provision could have the effect of
preventing higher education providers who are also registered as
providers under the ESOS Act from recovering the cost of the
support services for overseas students required by the Code.
While neither the Minister s Second Reading Speech, nor the
Explanatory Memorandum, makes any reference to the VSU
Bill in connection with the new provision, it would appear that the
proposed amendment will remove any possible constraint on the
ability of providers to impose compulsory charges on overseas
students for those support services mandated by the Code.
Item 3 of Schedule 1 substitutes a new
section 16 with the effect of permitting the registration
of non-resident providers if they are included in Table C of the
HESA.(3)
Item 4 of Schedule 1 clarifies that a Table C
provider does not breach its obligations under the national Code
merely because the provider is not a resident of Australia.
Item 6 of Schedule 1 adds a new
sub-section 18(2) which permits registered providers to
charge a tuition fee which includes amounts for actions the
provider is required to undertake because of the ESOS Act or the
National Code.
Endnotes
- The Code can be obtained from:
http://www.dest.gov.au/sectors/international_education/publications_resources/other_publications_resources/esos_national_code/
- Proposed sub-section 19-37(2) contained in Item 1 of Schedule 1
of the VSU Bill.
- See the Digest for the Higher Education Legislation Amendment
(2005 Measures No. 4) Bill 2005 for a description of the categories
of higher education providers authorised by the HESA.
Kim Jackson
26 September 2005
Bills Digest Service
Information and Research Services
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ISSN 1328-8091
© Commonwealth of Australia 2005
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Published by the Parliamentary Library, 2005.
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