Bills Digest no. 142 2009–10
Immigration (Education) Amendment Bill 2010
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
Concluding comments
Contact officer & copyright details
Passage history
Immigration (Education) Amendment Bill
2010
Date introduced: 17 March 2010
House: House
of Representatives
Portfolio: Immigration and Citizenship
Commencement: 1 January 2011
Links: The
links to the Bill, its Explanatory Memorandum and second
reading speech can be found on the Bills page, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
The purpose of the Immigration
(Education) Amendment Bill 2010 (the Bill) is to amend the
Immigration (Education) Act 1971 (the Act) to implement
the new Adult Migrant English Program (AMEP) Business Model.
AMEP has been in existence since 1948 when it was originally
developed to assist migrants and displaced persons coming to
Australia after the war to learn English.[1] ‘AMEP is the Australian
Government’s largest settlement program and is delivered at
more than 250 locations around Australia.’[2] The aims of AMEP are:
… to help recently arrived migrants and
humanitarian entrants to develop the English language skills they
need to access services in the general community, provide a pathway
to employment, training or further study and participate in other
government programs offered. The AMEP also assists clients, through
experiential learning, to become independent in managing day-to-day
situations.
Its vision is to provide basic English
through:
- Formal and informal tuition
- Support services, including vocational guidance
counselling
- Social participation activities, and
- Learning and linkages to employment, training and further study
pathways.[3]
People entering Australia who are permanent adult migrants or
humanitarian entrants and whose English is poor are eligible under
the Act for up to 500 hours of English language tuition. The
entitlement ceases however once the person becomes proficient in
English.[4] The
Discussion paper published by the Department of Immigration and
Citizenship entitled Review of the Adult Migrant English
Program (the Discussion Paper)[5] notes that many eligible people come mainly from
the humanitarian and family migration streams or are dependents of
skilled migrants.[6]
AMEP is also currently available to 16 to 18 year olds who are
unable to participate in the school system.[7] Specifically,
… because the AMEP is an adult program,
16–17 year olds are only eligible if there is no appropriate
program within the school sector. The Commonwealth provides
funding, through state departments of education, for six months
intensive English instruction for new arrivals. In some states,
there is additional support that is state funded.[8]
The Special Preparatory Program exists as part of AMEP. This was
introduced in 1997 to provide humanitarian entrants who have
experienced trauma and torture with an additional 100 hours of
tuition. In 2004, this was expanded to include young people in the
16 to 24 age group with seven or less years of schooling with an
additional 400 hours of tuition.[9]
As mentioned above, there are more than 250 centres offering
tuition in English to eligible persons. For example, these centres
include the Canberra Institute of Technology and the various
Technical and Further Education (TAFE) institutions around
Australia. Not only do they provide tuition in English but these
centres also provide advice on how to have overseas qualifications
recognised in Australia or assist with the translation of personal
documents into English.[10]
People can undertake English classes in a classroom situation or
by distance learning. In the case of distance learning, specially
designed books and audiovisual materials are sent to the
person’s home and support is provided by regular phone
contact with a qualified teacher.[11]
A number of matters are considered before a person commences
classes. These matters include:
- an assessment of the person’s level of English
- the type of class the person will attend and agreement on the
number of hours of study required each week
- childcare needs and whether the Centre can provide
assistance
- develop an individual learning plan noting the educational and
career goals and how they can be achieved
- progress in the AMEP program is recorded on the person’s
individual plan.[12]
In 2007, Ernst and Young conducted an audit of AMEP and
concluded that the goals and objectives of the program did not
mesh. The Discussion Paper noted that there were recommendations
from this audit that required consideration.[13] In 2008, a formal review of AMEP
commenced (the Review). An external steering committee was set up
provide guidance and strategic direction. Membership of the
Steering committee comprised departmental officers, two community
representatives, the AMEP Research Centre[14], and a State Government education
representative.[15]
The Discussion Paper considered it an opportune time to review
the program as the profiles of clients had changed markedly, as had
the Australian labour market. In the Discussion Paper, it was
stated that:
Between 1997 and 2002, most humanitarian
entrants came from the former Yugoslavia and Iraq and had average
to high levels of education. Since 2002, the regional focus of the
Humanitarian program has changed in response to United Nations High
Commissioner for Refugees (UNHCR) resettlement priorities. There
are significant numbers in the current cohort of humanitarian
entrants with little or no education who require both English
language and literacy skills. These clients are struggling to make
gains in the current AMEP.[16]
It was intended that the outcomes of the review form the basis
for development of the Request for Tender for the 2010-2015 AMEP
contracts.[17]
The Review’s terms of reference focussed on the following
issues:
- the strategic goal and objectives of the program
- the best way to meet the English language needs of clients who
are seeking employment and those requiring English to integrate
socially
- the provision of English language assistance to 15 to 18 year
old migrant and humanitarian entrants who are not attending school
and are currently unable to access the AMEP, and
- improvements to the administration of the AMEP in the areas of
performance measurement, reporting, legislation and
benchmarking.[18]
The Review consulted extensively with clients, teachers, AMEP
and other settlement service providers, as well as the Australian
Government and state and territory government agencies. The
findings fed into the new AMEP business model and consequently
formed the basis of the request for tender for the AMEP services in
2009-10.[19]
An initiative was announced in the 2009-2010 Budget to reform
the design and delivery of the AMEP. It proposed to increase the
number of AMEP counsellors to assist clients to reach their goals.
‘This includes guidance on pathways to further English
language tuition, education, employment or vocational
training.’[20] In addition, it proposed expanded services to extend to
15 to 17 year old new arrivals who tend to drop out within their
first year of arrival.[21]
The initiative supports the program reforms as outlined above.
Budget paper no. 2[22] stated that savings in this program will be achieved
through improved pricing, administration and contractual
arrangements for the delivery of services and estimated that it
would provide a net savings of $20.4 million over four
years.[23]
The Government considers learning English to be the most
important step in successfully integrating into Australian
society:
While maintaining one’s cultural heritage
and language is always encouraged, the government considers English
in the Australian context as one of the most important steps
towards successful settlement in Australia.[24]
The aim of the new AMEP Business Model (the new Model) is, as
the Parliamentary Secretary states broadly, to ‘provide
greater support for clients whilst improving client retention and
the English language proficiency of clients.’[25] In addition, the
Parliamentary Secretary states that the new Model will improve
program delivery and administrative arrangements.[26]
Item 14 of the Bill inserts Part 3 section 4E Citizenship
courses into the Act. Currently in section 4, citizenship and
English courses are grouped together. They have now been separated
and arrangements concerning citizenship courses will be contained
in the regulations. The time limit restrictions for English
courses[27] will
not apply to the citizenship courses.
The Government in its response to the Moving Forward…
Improving Pathways to Citizenship report, published in
November 2008, commented on citizenship courses as follows:
The Review Committee expressed concern that
there are no alternative pathways to sitting a computer-based test
which was in effect marginalising some people from becoming
citizens. The Government is committed to ensuring people who have a
commitment to Australia and who have a strong desire to become
Australian Citizens have the opportunity to do so. The Government
will develop a citizenship course that will provide an alternative
pathway to citizenship for refugees and disadvantaged or vulnerable
migrants. This will include people who understand English but whose
level of literacy does not allow them to undertake a formal
computer-based test.
This alternative pathway will address community
concerns about the test and in many cases, will help people who
were previously excluded from obtaining citizenship. It will ensure
that the citizenship test caters for the needs of a broad range of
people, particularly those who are disadvantaged and vulnerable.
Equally the Government will provide educational support and a range
of preparatory learning materials.
Migrants with better English are more
successful at settling and finding employment. For these reasons,
the Government does not support the recommendation for a
citizenship education program in languages other than English.
The Department of Immigration and Citizenship
(DIAC) will work with educational testing professionals to validate
and ensure consistency of testing and assessment frameworks
throughout pathways. The Government expects this process to be
completed by 2010.
The Government does not support making the test
questions publicly available. Maintaining the confidentiality of
the test questions will ensure the integrity and rigour of the test
is not diminished. [28]
On 17 March 2010, the Senate Selection of Bills Committee
resolved to recommend that the Immigration (Education) Amendment
Bill 2010 not be referred to a parliamentary committee.[29]
The Explanatory Memorandum states that the removal of the annual
administration fee for English courses would cost less than $10,000
is collected per annum and that less than one per cent of clients
are charged this fee. Consequently, the removal of this fee is
expected to have a negligible impact on the Government’s
fiscal balance.[30]
Schedule 1— Part 1—Amendments to
the Immigration (Education) Act 1971
Part 1—Preliminary
Item 13 inserts proposed subsections 3(2) and
(3) relating to the amended definition of
‘functional English’.
The Explanatory Memorandum states
Although it is possible that the definition of
the internationally recognised standard may change from time to
time, this standard [English language ability] is widely used in
second language learning and any changes to the standard would be
implemented across the language learning sector. Linking the
standard of “functional English” to an internationally
recognised standard provides transparency and certainty as to the
standard that providers of approved English courses must use to
assess a person’s English.[31]
Proposed subsection 3(2) provides that the
Minister may, by legislative instrument, specify procedures or
standards relating to the definition of functional English in
proposed subsection 3(1).
Proposed subsection 3(3) provides that such
legislative instrument may apply, adopt or incorporate, with or
without amendment, any matters contained in other instruments or
documents, which are in force or exist at a particular time or from
time to time.
Item 14 repeals sections 4 and
5 and substituting existing
sections 4 and 5 with proposed new Part 2—English
courses, which includes new sections 4 to
4D; proposed new Part 3—Citizenship
courses and proposed new Part
4—Implementation (which includes new
proposed section 5). Other existing provisions are
also amended.
Proposed section 4 provides that the Minister
may provide or arrange for the provision of English courses for
people who either meet the eligibility criteria or are outside
Australia and who have applied for a permanent visa. The
Explanatory Memorandum notes the following:
57. This amendment firstly ensures that the
Minister may only provide, or arrange the provision of, English
courses to persons who are outside Australia if they have applied
for a permanent visa. The purpose of this amendment is to clarify
the provision and provide for greater certainty for potential
clients and decision-makers. The fact that a person has applied for
a permanent visa demonstrates an intention to migrate to Australia
and can be objectively ascertained, while the current requirement
that a person intend to migrate to Australia involves a subjective
assessment.
58. Secondly, this amendment, together with new
section 4E inserted by this item, separates the provision of
English courses from the provision of citizenship courses.
This is to ensure that the time limits in new section 4C for
registering in and starting an approved English course, and the
five-year time limit in new section 4D on eligibility for approved
English courses, do not apply in relation to citizenship courses.
(Section 3, as amended by item 4, defines “approved English
course” as an English course provided in accordance with
section 4 of the Act.)[32]
Proposed section 4A sets out the eligibility
criteria that persons must meet to qualify to do an English course.
A person is eligible if they meet the following criteria:
- the person is in Australia and:
- holds a permanent
visa
- holds a temporary
visa of a type specified by the Minister in a legislative
instrument for the purposes of proposed paragraph
4A(a)
- has previously
held a permanent entry permit or a permanent visa; and has become
an Australian citizen, or
- is under 18 years
and has at least one parent who has held or holds a permanent entry
permit or a permanent visa, and
- does not have functional English, and
- is not ineligible under proposed sections 4C (
time limits for registration or commencement) or
4D (time limit on tuition).
In effect, proposed subsection 4A(1) removes
the eligibility of New Zealand citizens who hold a special category
visa, the rationale being that they would have had access to
English language tuition in New Zealand.[33] The reference to Christmas Island and
the Cocos (Keeling) Islands is also removed as the definition of
Australia in the Acts Interpretation Act 1901
includes both of these external territories.[34]
Proposed subsection 4B(1) provides that the
Minister must provide or arrange the provision of tuition in an
approved English course for an eligible person while he or she
remains eligible, if that person meets the following criteria:
- holds a permanent visa
- is aged at least 18 years on their first day in Australia on or
after the day when the permanent visa came into effect
- has paid or is exempt from paying the visa application fee for
a permanent visa under section 45A of the Migration Act
1958
- did not at any time previously hold another permanent visa
while in Australia, and
- is not excluded from the application of this section by the
regulations.
Proposed subsection 4B(2) provides that
subsection 4B(1) no longer applies once the person has had 510
hours of tuition in an approved English course.
Proposed subsection 4B(3) does not limit the
operation of proposed section 4 which means that
the Minister’s discretion in proposed section 4 is not
limited by the operation of proposed section 4C.
Proposed section 4C relates to ineligibility
for English courses and the time limits that apply for registration
or commencement. Proposed subsection 4C(1) sets
out the scope of the section. Proposed section
4C(1) applies to people who would be eligible to do an
English course if they had ever held permanent visas or temporary
visas of a type specified in proposed subparagraph
4A(a)(ii).
Proposed subsection 4C(2) provides for time
limits.
Proposed subparagraph 4C(2)(a)(i) provides that
a person aged under 18 years on his or her visa commencement day
and who fails to register with a provider of an approved English
course within a twelve month period beginning from that visa
commencement day, will become ineligible.
Proposed subparagraph 4C(2)(c)(ii) provides
that a person aged 18 or more years on his or her visa commencement
day and who fails to register with a provider of an approved
English course within a six month period beginning on that day will
become ineligible.
Proposed paragraph 4C(2)(b) provides that a
person is ineligible if he or she fails to start an approved
English course within a twelve month period beginning on his or her
visa commencement day.
A person may apply to the Secretary for an extension of time
mentioned in proposed subsection 4C(2)
(proposed 4C(3)) and must do so as prescribed in
the regulations. The application may, subject to any regulations,
be made either before or after the end of the period of time
mentioned in proposed subsection
4C(2)(proposed 4C(4)).
Proposed subsection 4C(5) allows the Secretary
to approve such extensions of time if he or she is satisfied that
it would be unreasonable to make the applicant ineligible. In
making these decisions, the Secretary must consider the matters
prescribed by the regulations and not consider any other matter
(proposed subsection 4C(6)).
Proposed section 4D relates to ineligibility
for English courses and the time limit on tuition. A person’s
eligibility to do an English course ceases after a five year period
beginning on his or her visa commencement day (proposed
subsection 4D(2)). Provisions relating to applying for
extensions of time in proposed section 4D are
similar to those in proposed section 4C. However,
in deciding whether to extend time limits under proposed
section 4D, the Secretary must be satisfied that the
person not become ineligible for compelling and
compassionate reasons as opposed to the reasonableness of such
an outcome (see above).
Proposed section 4E enables the Minister to
arrange for citizenship courses to be provided both within and
outside Australia to people prescribed in the regulations.
The transitional and saving provisions are very detailed and
provide guidance as to how various categories of people who are
eligible or who have applied for English courses will be dealt with
after the new laws come into force. The Explanatory Memorandum has
detailed information in relation to these transitional
provisions.[35]
Item 19(1) relates to the gazettal of temporary
visa classes specified in the Gazette under existing subparagraph
4(b)(ii), in force immediately before the commencement of the new
law.
Item 19(2) provides that the
proposed subparagraph 4A(a)(ii)
has effect, at and after 1 January 2011, as if the classes of
temporary visa had been specified in a legislative instrument under
that paragraph.
Item 20 is a transitional provision in relation
to New Zealand citizens, in Australia, who are registered with a
provider of an approved English course at commencement time.
Item 20(1) states that this item applies to New
Zealand citizens in Australia who hold special category visas, were
registered with the provider of an approved English course
immediately before 1 Janury 2011 and held special category visas at
the time they were first registered with such providers.
Item 20(2) treats a special category visa held
by a person, at or just after 1 January 2011, as if it were a
permanent visa that came into effect at the time the special
category visa mentioned in item 20(1)(e) came into
effect. However, this does not apply in relation to
proposed section 4B (obligation to provide 510
hours of tuition in an English course). This enables a New Zealand
citizen holding a special category visa and who registers with a
provider of an approved English course before 1 January 2011 to
continue with the tuition after that date.[36]
Item 23 is a transitional provision in relation
to people registered in English courses on 1 January 2011.
Item 23(1) applies to a person who is
registered with a provider of an approved English course
immediately before that date.
Item 23(2) provides that proposed
subsections 4C(2) and 4D(2) which deal
with time limits for registration or commencement of tuition
will apply to such person as if the references to the
person’s visa commencement day were references to 1 January
2011. This ensures that a person who is registered before 1 January
2011 may start the course within 12 months of that date and have
five years to complete tuition in approved English courses.
Item 24 is a transitional provision relating to
determinations by the Secretary delaying the end of the obligation
to provide 510 hours of tuition.
Item 24(1) provides that item
24 applies to a person if:
- a determination was made by the Secretary under existing
subsection 4D(2), that the obligation to provide English tuition to
a person was to cease on a particular day (cessation day)
at or after 1 January 2011
- that determination was in force immediately before that date,
and
- the person is not covered by item 23 (see
above).
Item 24(2) provides that proposed
section 4C applies to a person, at or after 1 January
2011, as if each reference to a period in proposed
paragraphs 4C(2)(a) and (b) was a
reference to the period ending at the end of the cessation
day. The Explanatory Memorandum states
The purpose of this amendment is to avoid
unfairness to people receiving tuition under the Act by ensuring
that a date specified before the commencement time will remain in
place after 1 January 2011.[37]
Item 25 is a transitional provision concerning
determinations by the Secretary that the obligation to provide
English tuition is not to cease.
Item 25(1) applies if:
- the Secretary made a determination under existing subsection
4D(2) that an obligation to a person under existing section 4D was
not to cease,
- that determination was immediately in force before 1 January
2011, and
- the person is not covered by item 23
(see above).
Under existing section 4D, the Secretary may determine that the
obligation not cease or nominate a later date.
Item 25(2) provides that proposed
section 4C does not apply to the person. Proposed
section 4C relates to time limits for registration or commencement
of an English course.
Item 26 provides transitional arrangements for
people who became ineligible to apply to a provider of an English
course before 1 January 2011. Subitem 26(1)
provides that a person would have stopped being eligible under
proposed subsection 4C(2) (fails to register within 12 months if
under 18 or 6 months if 18 and over or fails to start an English
course within 12 months of visa commencement day) before 1 January
2011 had the new law been in force and is not covered by items 23,
24 or 25. The person would have stopped being eligible under
subsection 4D(2)(a person stops being eligible after a five year
period) of the new law before 1 January 2011 had the new law been
in force and is not covered by item 23. Subitem
26(2) provides that a person is not eligible at or after 1
January 2011 subject to the provisions of subsections 4C(3) to (6)
and 4D(3) to (6) (extension of time). The effect is that a person
who did not register before 1 January 2011 must apply for an
extension of the timeframes under proposed subsections 4C(2) or
4D(2) to be extended.
Item 27 provides for a saving provision for the
refund of fees for English courses. Paragraph 4A(3)(b) of Part 1 of
the old law and the regulations made under that paragraph continue
to apply at or after 1 January 2011. The regulations made under
paragraph 4A(3)(b) provide ‘for the refund, reduction or
waiving of fees in cases identified in the
regulations.’[38]
Members, Senators and Parliamentary staff can obtain further
information from the Parliamentary Library on (02) 6277 2784.
Moira Coombs
21 May 2010
Bills Digest Service
Parliamentary Library
Back to top