Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2002
THE PARLIAMENT OF THE
COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
EDUCATION SERVICES FOR OVERSEAS
STUDENTS AMENDMENT BILL 2002
EXPLANATORY
MEMORANDUM
(Circulated
by authority of the Minister for Education, Science and Training the Hon Dr
Brendan Nelson MP)
EDUCATION SERVICES FOR OVERSEAS STUDENTS
AMENDMENT BILL 2002
The Education Services for Overseas Students Act 2000 (ESOS Act)
was introduced with the objectives of:
- Ensuring that international students
in Australia receive the education and training for which they have
paid;
- Protecting the reputation and integrity of Australia’s
education and training export industry; and
- Strengthening public
confidence in the integrity of the student visa program.
The ESOS Act, which replaced the Education Services for Overseas Students (Registration of Providers and Financial Regulation) Act 1991, established key national elements for the regulation of the international education and training services industry. It addressed problems facing the industry; the uncertain financial protections for students’ pre-paid course fees; the emergence of a small minority of unscrupulous providers; and inconsistent quality assurance. The development of the ESOS Act involved consultation with industry, State and Territory authorities and Commonwealth agencies, particularly the Department of Immigration and Multicultural Affairs. It is subject to an independent review, commencing within three years of receiving Royal Assent on 21 December 2000.
The ESOS Act established a new regime for the registration of education and
training providers, which have been approved by State and Territory authorities;
and established the National Code of Practice for Registration Authorities and
Providers of Education and Training to Overseas Students (National Code) as a
nationally consistent code to provide greater quality assurance for overseas
students.
The ESOS Act contains measures for education and training
providers registered on the Commonwealth Register of Institutions and Courses
for Overseas Students (CRICOS) to belong to a tuition assurance scheme, to pay
annual contributions to the ESOS Assurance Fund, to refrain from misleading
marketing practices or deceptive recruitment of students and to refund student
money in cases of default. It also contains Commonwealth powers to investigate,
impose sanctions including conditions and suspension on provider’s
registration, and remove non bona-fide operators from the industry.
This Bill continues support for a strengthened regulatory framework for
Australia’s education and training export industry and will ensure its
integrity and long-term viability. It will provide greater clarity about the
Commonwealth’s powers and greater certainty for the education and training
export industry. It does not involve a change of government policy but
strengthens existing arrangements.
The Bill contains measures of a minor,
technical and machinery of government nature that will improve the operation of
certain sections of the ESOS Act. The changes proposed in the Bill arose from
experience with the administration of certain provisions since the
implementation of the ESOS Act. The Bill contains measures to correct technical
anomalies; to improve clarity of the definition of registered provider; to
explain to whom refund of student monies should be paid in the case of student
default; and to provide greater flexibility to impose the full range of
sanctions in cases of non-compliance, including the ability to impose lesser
sanctions.
The Bill will be Budget neutral and will not increase costs to the
Commonwealth or the education export industry.
EDUCATION SERVICES FOR OVERSEAS STUDENTS
AMENDMENT BILL 2002
Clause 1 - Short title
Provides for the Act to be cited
as the Education Services for Overseas Students Amendment Act
2002.
Clause 2 - Commencement
Provides for the Act
to commence on the day on which it receives the Royal
Assent.
Clause 3 - Schedule(s)
Provides that each Act
that is specified in a Schedule is amended or repealed as set out in the
applicable items in the Schedule and that any other item in a Schedule has
effect according to its terms.
Schedule 1 – Education Services for Overseas Students Act 2000
Item 1
Amends section 5 to redefine registered
provider for a course for a State as “an approved provider that is
entered on the Register as a provider for the course for the
State”.
Items 2 and 3
Amend paragraphs 8(1)(e) and (f) to clarify that
where a person who is registered to provide a particular course for a particular
State (or where a person provides a course in accordance with an arrangement the
person has with a registered provider for a particular course for a particular
State), that person is not guilty of an offence under section 8 in respect of
providing that particular course in that particular State.
Item
4
Amends the note to paragraph 9(2)(d) (which refers to section 14)
to substitute reference to the “Minister” with a reference to the
“Secretary”, to reflect amendments to paragraph 14(1)(a) and
subsections 14(2) and (3) by items 7 and 8.
Item 5
Amends paragraph 9(6)(b) to have the effect of providing
that, in deciding whether it is satisfied that a provider is fit and proper to
be registered as mentioned in paragraph 9(2)(ca), the designated authority must
have regard to whether the provider, or an associate of the provider who has
been, is or will be involved in the business of the provision of courses by the
provider has ever had his, her or its registration cancelled or suspended
“for any one or more courses for any one or more States” under the
Act or the old ESOS Act.
Item 6
Amends paragraph 11(1)(b) to have the effect of
providing that, before a designated authority recommends an approved provider
for registration, the provider must tell the Secretary and the authority if the
provider or an associate of the provider has ever had his, her or its
registration cancelled or suspended “for any one or more courses for any
one or more States” under the Act or the old ESOS Act.
Item 7 and 8
Amend paragraph 14(1)(a) and subsections 14(2) and (3) to have the effect of providing that the powers and duties imposed on the Minister by section 14 to notify States in cases of suspected non-compliance with the ESOS Act or the national code, are to be conferred on the Secretary.
Item 9
Amends paragraph 17(1)(b) to have the effect of
providing that a registered provider must tell the Secretary as soon as
practicable if the provider becomes aware that an associate of the provider has
ever had the associate's registration cancelled or suspended “for any one
or more courses for any one or more States” under the Act or the old ESOS
Act.
Item 10
Corrects Note 1 to section 26 by omitting the sentence “A breach of this section is also an offence: see section 104.”
Item 11
Repeals subsection 28(2) and substitutes a new
subsection which has the effect of providing that, where there is a written
agreement between the registered provider and the student setting out the refund
requirements that apply in the case of student default as described in
subsection 27(2), a provider must pay the amount (if any) required by the
agreement to either the person specified in the agreement or otherwise to the
student.
Item 12
Repeals subsection 30(1) and substitutes a new
subsection which has the effect of providing that, where there is a written
agreement between the registered provider and the student setting out the refund
requirements that apply in the case of student default as described in
subsection 27(2) and a person other than the student is specified in the
agreement under section 28, the specified person is entitled to recover the
amount owing under Division 2 of Part 3 as a debt by action in a court of
competent jurisdiction. Otherwise the student is entitled to recover the debt.
This amendment reflects the amendment made by item 11 to permit a refund of
course money to a person other than the student in the case of student
default.
Item 13
Amends paragraphs 76(1)(a) and (b) to
have the effect of providing that a call is made on the Fund if the Fund Manager
determines that, for an overseas student or an intending overseas student
in relation to a course for which there is or was a registered provider, the
provider is required to refund an amount under Division 2 of Part 3, it appears
that the provider will be unable to satisfy its obligations under that Division
and the student is not able to be placed promptly in a suitable alternative
course under a tuition assurance scheme or by any other means. This amendment
reflects the amendment made by item 11 to permit a refund of course money to a
person other than the student in the case of student default.
Item 14
Repeals paragraph 77(1)(b) and substitutes a new
paragraph to have the effect of providing that, if a call is made on the Fund
and in consultation with the overseas student (or intending overseas student)
the Fund Manager has been unsuccessful in placing the student in a course in
Australia that the Fund Manager regards as a suitable alternative course, the
Fund Manager must pay the person (other than the student) specified in an
agreement under section 28 or otherwise the student, out of the Fund, an amount
equal to the amount that the provider must still pay in order to satisfy the
refund requirements under Division 2 of Part 3. This amendment reflects the
amendment made by item 11 to permit a refund of course money to a person other
than the student in the case of student default.
Item
15
Repeals subsection 78(1) and substitutes a new subsection to have
the effect of providing that, after the Fund Manager pays an amount under
section 77, the student or the person specified in an agreement under section 28
ceases to have any claim against the provider in respect of the student's course
money. This amendment reflects the amendment made by item 11 to permit a refund
of course money to a person other than the student in the case of student
default.
Item 16
Inserts a new subsection 83(1A) which
has the effect of providing that the Minister may take one or more of the
actions listed in subsection 83(3) against a registered provider if the Minister
believes on reasonable grounds that because of financial difficulty or any other
reason the provider might not be able to provide courses or refund course money
to its accepted students.
Item 17
Repeals paragraph
83(3)(a) and substitutes a new paragraph which has the effect of providing that
one of the sanctions the Minister may impose for non-compliance is to impose one
or more conditions on the registered provider's registration either generally or
in respect of any one or more specified courses for any one or more specified
States. Section 86 sets out some examples of the conditions the Minister may
impose.
Item 18
Amends paragraphs 83(3)(b) and (c) to have the
effect of providing that the sanctions the Minister may impose for
non-compliance include suspending or cancelling the registered provider's
registration for “any one or more specified courses for any one or more
specified States”. The effect of suspension is set out in section
95.
Item 19
Inserts a new subsection 83(4) which has the effect of
providing that the Minister may take action under section 83 against a
registered provider’s registration for a particular course for a State
even if the conduct or the situation that results in the Minister taking the
action does not relate to that particular course.
Item
20
Provides that the amendments made by items 17, 18 and 19 apply to
any action taken after the items commence, irrespective of when the conduct or
situation that results in the action occurred.
Items 21 and
22
Repeal the heading to Subdivision B of Division 1 of Part 6 and
section 87.
Item 23
A saving provision, which provides
that the repeal of section 87 by item 22 does not affect the suspension of a
registered provider’s registration, that was done under that section and
is in force when the item commences.
Items 24 and
26
Amend paragraph 93(1)(a) and subparagraph 93(1)(d)(iii) to remove
references to Subdivision B of Division 1 of Part 6 to reflect the repeal of
that Subdivision heading by item 21.
Item 25
Amend
subparagraph 93(1)(d)(i) to remove the words “of the possible
breach” to reflect the fact that, with the insertion of subsection 83(1A)
by item 16, the Minister may take enforcement action against a registered
provider if the Minister believes on reasonable grounds that because of
financial difficulty or any other reason, the provider might not be able to
provide courses or refund course money to its accepted students.
Item 27
Provides that the amendments made by items 24
and 25 apply to any decision to take action that is made after the items
commence, irrespective of when the conduct or situation that results in the
decision to take the action occurred.
Item 28
Repeals
section 95 and substitutes a new section dealing with the effect of suspension
under Division 1 of Part 6.
Proposed subsection (1) has the effect of
providing that a provider whose registration is suspended for a course for a
State under Division 1 must not do any thing for the purpose of recruiting or
enrolling overseas students or intending overseas students for the course for
the State or solicit or accept any money from an overseas student or an
intending overseas student for the course for the State. In addition, if an
accepted student of the provider has not begun the course, a provider whose
registration is suspended for a course for a State under Division 1 must not
permit the student to begin the course for the State.
Proposed
subsection (2) has the effect of providing that a provider whose registration is
suspended for a course for a State under Division 1 is still registered for the
course for the State for all other purposes.
Item 29
Amends paragraph 96(1)(a) to have the effect of
providing that the Secretary must update the Register appropriately if a
provider's registration is suspended or cancelled “for any one or more
courses for any one or more States”. However, a failure to update the
Register does not affect the validity of a suspension or
cancellation.
Item 30