Bills Digest no. 126 2006–07
Education Services for Overseas Students Legislation
Amendment Bill 2007
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
Financial implications
Main Provisions
Endnotes
Contact Officer & Copyright Details
Passage History
Education Services for Overseas Students
Legislation Amendment Bill 2007
Date introduced:
22 March 2007
House: House of Representatives
Portfolio: Education, Science and
Training
Commencement:
Sections 1 to 3 commence
on Royal Assent. The operative provisions (Schedule 1) commence
on 1 July 2007.
The main
purpose is to amend the Education Services for Overseas
Students Act 2000 to make some relatively modest changes to
the Commonwealth s administration of the regulatory regime covering
the provision of education and training to overseas students in
Australia.
The provision of education and training to
overseas students in Australia is a responsibility shared by the
Commonwealth and the State and Territory governments. The States
and Territories have primary responsibility for the quality control
of education providers and their courses and exercise this through
their processes of approving, registering and monitoring providers
and their courses.
The Commonwealth s interest is in protecting
the reputation of a $7 billion per year export
industry(1), maintaining the integrity of the migration
program and protecting the interests of overseas students as
consumers.
The regulatory framework therefore involves
Commonwealth and State/Territory legislation and the administrative
effort of the Commonwealth Department of Education, Science and
Training (DEST) and the Commonwealth Department of Immigration and
Citizenship (DIAC) and the State/Territory education and training
authorities.
The
Education Services for Overseas Students Act 2000 (ESOS
Act) and associated legislation is the legal framework governing
the responsibility of education providers to overseas students who
come to Australia on a student visa in the higher education,
vocational education, secondary school or English language sectors.
The associated legislation is the Education Services for
Overseas Students (Registration Charges) Act 1997, Education
Services for Overseas Students Regulations 2001 and the National
Code of Practice for Registration Authorities and Providers of
Education and Training to Overseas Students (National Code).
(2)
The ESOS Act introduced substantial changes to
the Commonwealth's arrangements for strengthening the regulatory
arrangements of education services to overseas
students.(3)
The arrangements under the ESOS Act
include:
-
provisions for the registration of education
providers and their courses on the Commonwealth Register of
Institutions and Courses for Overseas Students (CRICOS)
-
the compulsory membership by providers of a
tuition assurance scheme
-
contributions by providers to an assurance fund
to ensure that there are funds to pay for student tuition in cases
of provider collapse
-
reporting obligations on providers for example
in relation to disclosure of provider activities such as previous
breaches or breaches of associates, and in relation to student
breaches
-
a compulsory national code which sets standards
and benchmarks for providers and their courses in order to qualify
for registration and which serves to guide States and Territories
in their approval, registration and monitoring activities
-
compulsory compliance with the national code,
and sanctions for being in breach of both the Act and the National
Code, and
-
Commonwealth powers to investigate providers;
impose sanctions and remove non bona fide operators from
the industry.
Section 176A of the ESOS Act required an
independent evaluation of the operation of the Act within three
years of Assent. The evaluation assessed the effectiveness of the
ESOS Act in achieving its objectives to:
-
provide nationally consistent registration of
education and training providers for overseas students studying in
Australia
-
minimise the presence in the industry of
providers lacking integrity or who facilitate student breaches of
their visa conditions
-
ensure students receive either alternative
tuition or a refund if they are unable to receive the tuition for
which they have paid, and
-
support migration policy
The evaluation commenced in May 2004 and
reported in June 2005 (the
2005 Evaluation). The 2005 Evaluation concluded that:
The architecture of the quality benchmarks
represented by the ESOS framework is sound: standards for providers
of education and training that are mandatory and operate
nationally; a cooperative national regulatory model; the
characterisation of the student-institution relationship in
consumer terms; and the integration of export education and
migration policy.(4)
However the 2005 Evaluation team made 41
recommendations to improve the framework s effectiveness many of
which were implemented in the amendments to the Act in
2006.(5)
The ESOS Act was also touched upon in a 2004
report of the Joint Standing Committee on National Capital and
External Territories. The report, the
Indian Ocean Territories: Review of the Annual Reports of
the
Department of Transport and Regional Services and the Department of
the Environment and Heritage, recommended that the ESOS
Act be amended so that it applied to the Indian Ocean
Territories.
The Bill inserts some of the remaining
recommendations of the 2005 Evaluation. It also makes some
amendments to reflect changes to the National Code that are due to
come into effect in July 2007.(6) Finally, it also makes
changes designed to, in the words of the Explanatory
Memorandum:(7)
provide flexibility in the allocation of the
roles and responsibilities between the Australian Government and
the states and territories governments under the Act.
Measures made possible by this amendment will
enhance national consistency and minimise any perception of
duplication in compliance monitoring by the designated authorities
and the Australian government.
The Explanatory Memorandum states that there
will be no financial costs to either the Commonwealth or education
providers.
Item 1 inserts new
sections 4A and 4B.
New section 4A sets out
objects for the ESOS Act. They are:
-
to provide financial and tuition assurance to
overseas students for courses for which they have paid; and
-
to protect and enhance Australia s reputation
for quality education and training services; and
-
to complement Australia s migration laws by
ensuring providers collect and report information relevant to the
administration of the law relating to student visas.
Insertion of objects into the Act was
recommended in the 2005 Evaluation as their absence was causing
confusion about the purpose of the legislation across governments
and the Australian education export industry .(9) The
new objects are broadly consistent with those recommended by the
Report.
New section 4B provides that,
with some specific exceptions,(10) the ESOS Act is to
apply to Christmas Island and Cocos (Keeling) Island. Currently,
the National Code specifically excludes service delivery in the
Australian External Territories from its scope. However the 2005
Evaluation supported the Christmas Island District High School and
Chamber of Commerce proposal to be included in the legislative
framework to enable the High School to offer Years 11 and 12 to
overseas students. The evaluation stated the policy and practical
difficulties which apply to a sweeping extension of scope to all
External Territories do not apply to Christmas Island High School
and an amendment to the ESOS Act is proposed to enable the High
School to be registered to deliver courses to overseas students
.(11)
The 2004 Committee report referred to above
also recommended increasing coverage of the ESOS Act to the Indian
Ocean Territories, although its discussion focussed on Christmas
Island.
Items 2-3, 5-8, 10, and
19-21 collectively make technical amendments to
various provisions that, where the relevant education providers are
in different states, will enable designated
authorities(12) to approve arrangements for course
delivery for all relevant providers, including those located
outside the jurisdiction of the designated authority in
question.
Section 9 sets out the conditions that must be
met before an approved education provider can be placed on CRICOS.
Item 9 deletes the phrase that the provider
complies with the national code in paragraph 9(2)(c) and
substitutes the new phrase in the form approved by the Secretary
for the purposes of this paragraph for the State, relating to the
provider s compliance with the national code . The Explanatory
Memorandum comments:
The purpose of this amendment is to provide
flexibility in the allocation of the roles and responsibilities
between the Australian Government and the states and territories
governments under the Act.
It is not immediately clear what this means
regarding who has responsibility for certifying that the provider
in question complies with the National Code.
The ESOS legislation supports the integrity of
the student visa programme through the provider reporting
conditions. Under sections 19 and 20 of the Act, providers are
obliged to report students who are not meeting the prescribed
condition of the student visa . Reporting conditions are clarified
in Standards 10 and 11 of the National Code which allow providers
to devise appropriate policies and procedures to monitor student
progress and attendance. Visa conditions which must be reported are
prescribed in the Education Services for Overseas Students
Regulations 2001 (the ESOS Regulations) and in the Migration
Regulations and are consistent with the conditions in the National
Code. Item 11 deletes the phrase explaining the
breach in paragraph 20(4)(b) and substitutes the new phrase making
any submissions about the breach and the circumstances that led to
the breach . The Explanatory Memorandum comments:
The purpose of this amendment (and items 26 and
27 below)(13) is to ensure that the ESOS Act and the
Migration Act 1958 relating to breach notices for overseas
students reflect the requirement that such notices must specify
that the student is to attend before an officer for the purposes of
making any submissions about the breach and circumstances that led
to the breach.
There are two separate processes that result
from an alleged breach of visa conditions relating to course
progress or attendance. The first is the availability of an appeal
to the education provider in question. The second, which presumably
is somewhat dependent on the outcome of any appeal, is the
decision-making process of the Department of Immigration and
Citizenship regarding possible cancellation of the
visa.(14)
Items 12-15 amend various
provisions in section 28. Section 28 deals with refunds of tuition
fees in certain circumstances, assuming there is a written
agreement between the provider and the student dealing with the
issue. The amendments will require that, in their contract with
students, education providers must include such a written agreement
setting out the circumstances in which refunds are available in the
cases where the student has defaulted (eg withdrawn from course,
breached visa requirements etc). The amendments arise from changes
in the National Code making written agreements mandatory.
Section 29 deals with refunds of tuition fees
money if there is no written agreement about student default.
Items 16 and 17 amend section 29
to take account of amendments to section 28 inserted by
items 12-15 above.
Under existing section 43, where the Secretary
of the administering Commonwealth Department has information that
the National Code may have been breached, it must first notify the
relevant State designated authority and request it to investigate
the possible breach or taken other appropriate
action.(15) Item 18 requires the
Secretary to notify the designated authority of the possible
breach, but the Secretary is no longer required to request an
investigation etc this is now at the Secretary s discretion. The
Explanatory Memorandum comments:
The amendment allows for a reflection of the
actual allocation of roles and responsibilities for investigating
breaches of the National Code 2007 between the Australian
Government and the state and territory governments.
A recent media report contains criticism by
the Australian Council for Private Education and Training of
perceived inaction by the Commonwealth against suspect education
providers.(16) However, the report also cites the
Commonwealth education minister, Julie Bishop, as saying that the
States has primary responsibility for dealing with any such
providers. Statistics on the various enforcement and monitoring
actions undertaken under the ESOS Act, including in regard to
education providers, can be found
here.
Items
24 and 25 amend the Migration Act to
ensure consistency with the amendment to the ESOS Act inserted by
item 11.
Endnotes
-
The economic benefits of international education to Australia
are now estimated to be around $7.5 billion of which $6.9 billion
is from spending by onshore students. See: Department of Education,
Science and Training, Annual Report 2004-05, p. 113.
-
General Information on the ESOS regime can be obtained at:
http://www.dest.gov.au/sectors/international_education/policy_issues_reviews/
key_issues/esos/#Introduction_and_Easy_Guide_to_ESOS
-
For details on the background to these changes, see Bills
Digest, Nos. 62-66, 2000-01.
-
PhillipsKPA and LifeLong Learning Associates,
Evaluation of the Education Services for Overseas Students Act
2000 (Australian Education International, Department of
Education, Science and Training, Canberra 2005), p. xxxiii.
-
Education Services for Overseas Students Legislation Amendment
(2006 Measures No.1) Bill 2006 and Education Services for Overseas
Students Legislation Amendment (2006 Measures No.2) Bill 2006.
-
See
http://www.dest.gov.au/NR/rdonlyres/8863581F-F477-49B1-
96C1-A38BF10E0701/15031/CurrentCodevRevisedCode.pdf for more
details on the changes to the National Code.
-
Outline in the Explanatory Memorandum. Note that the pages of
Explanatory Memorandum are not numbered.
-
The Hon. Andrew Robb. House of Representatives,
Debates, 22 March 2007, p. 2.
-
Evaluation of the Education Services for Overseas Students Act
2000, p.x.
-
The Explanatory Memorandum comments that the exceptions are to
deal with references to State that are not applicable to Christmas
Island and Cocos (Keeling) Islands .
-
Evaluation of the Education Services for Overseas Students Act
2000, p. xi.
-
A designated authority for a State is the person responsible
under the law of the State for approving providers to run education
courses to overseas students in the State.
-
The reference to items 26 and 27 is an error. It should refer to
items 24 and 25.
-
See comments by the Minister in his second reading speech about
the separation of education issues, such as a student s course
attendance, and DIAC s role with regarding to determining the
student s visa status - House of Representatives, Debates,
22 March 2007, p. 2 3.
-
Unless urgent action is required: subsection 43(3).
-
Geoff Maslen Colleges fail to make the grade Australian
Financial Review, 26 March 2007 p. 31
Coral Dow and Angus Martyn
28 March 2007
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ISSN 1328-8091
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