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2019-2020
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
IMMIGRATION (EDUCATION) AMENDMENT (EXPANDING ACCESS TO
ENGLISH TUITION) BILL 2020
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Population, Cities and Urban Infrastructure,
the Hon. Alan Tudge MP, on behalf of the Minister for Immigration, Citizenship, Migrant
Services and Multicultural Affairs, the Hon. David Coleman MP)
2
IMMIGRATION (EDUCATION) AMENDMENT (EXPANDING ACCESS TO
ENGLISH TUITION) BILL 2020
OUTLINE
The Immigration (Education) Amendment (Expanding Access to English Tuition) Bill
2020 (the Bill) amends the Immigration (Education) Act 1971 (the IE Act) to expand
eligibility for migrants to access English tuition.
English proficiency plays a central role in determining the successful integration of
migrants into Australian society and is a key factor associated with education and
employment outcomes. By providing measures for supporting migrants with low English
proficiency to learn the national language, the Bill will facilitate social cohesion and
national unity. It will also boost the future employment and education prospects of
migrants who participate in English tuition. This Bill will also be a key enabler for the
Government's critical priorities in light of the economic challenges arising from the
COVID-19 pandemic.
The nationalities of migrants entering Australia has changed dramatically over recent
decades. There has been a measurable increase in migration from countries with
languages that are more linguistically distant from English. Learning English for
Mandarin or Arabic speakers requires a greater time commitment and effort than for
those who speak Italian or Greek. Expanding access to English tuition recognises that
learning a language is a complex task, and that a one size fits all approach is not
appropriate
The nature of the Australian economy has also changed. There are vastly fewer lower
skilled jobs in the Australian economy than in the post war period, when the IE Act first
commenced. Even lower-skilled jobs now require higher levels of English to manage the
health and safety requirements of Australian workplaces. Higher levels of English are
also required for vocational training.
The changes made by the Bill will send a strong message regarding the support provided
by the Government for migrants to learn Australia's national language, and the
importance of English proficiency for social cohesion. The Bill will enable the
Government to further incentivise English language learning, and provide greater
flexibility for migrants in the way they undertake English studies. It will provide English
tuition to bridge the gap for migrants who are currently ineligible for the program, or who
have exhausted their available tuition hours without reaching the level of vocational
English.
Specifically, the Bill amends the IE Act to:
remove the 510 hour statutory limit on an eligible person's entitlement to English
tuition, in order to support and incentivise English proficiency;
3
amend the upper limit for eligibility to access English tuition to a new level of
vocational English, which will enable eligible persons to continue their language
learning to a higher level of English proficiency;
remove the statutory time limits for registering for, commencing and completing
English tuition for certain people who held a visa and were in Australia on or before 1
October 2020; and
allow for the provision of English tuition to certain visa holders or visa applicants
outside Australia, to support their English language learning in preparation for their
migration to Australia.
FINANCIAL IMPACT STATEMENT
These amendments will have a low financial impact.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
A statement of compatibility with human rights has been prepared in accordance with
Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 and is at Attachment A.
4
IMMIGRATION (EDUCATION) AMENDMENT (EXPANDING ACCESS TO
ENGLISH TUITION) BILL 2020
NOTES ON INDIVIDUAL CLAUSES
Section 1 Short title
1. Section 1 provides that the short title of this Bill, once enacted, will be the
Immigration (Education) Amendment (Expanding Access to English Tuition) Act 2020.
Section 2 Commencement
2. Section 2 sets out the times at which the various provisions of the Act commence.
3. Subsection 2(1) provides that each provision of the Act specified in column 1 of
the table commences, or is taken to have commenced, in accordance with column 2 of the
table. Any other statement in column 2 has effect according to its terms.
4. Table item 1 provides that sections 1 to 3 and anything in the Act not elsewhere
covered by the table will commence on the day the Act receives the Royal Assent.
5. Table item 2 provides that Schedule 1 will commence on a single day to be fixed
by Proclamation. If the provisions do not commence within the period of 6 months
beginning on the day the Act receives the Royal Assent, they commence on the day after
the end of that period.
6. A note explains that the table relates only to the provisions of the Act as originally
enacted. The table will not be amended to deal with any later amendments of the Act.
7. Subsection 2(2) provides that any information in column 3 of the table is not part
of the Act. Information may be inserted in this column, or information in it may be
edited, in any published version of the Act.
Section 3 Schedules
8. This section provides that legislation specified in a Schedule to this Act is
amended or repealed as set out in the applicable items in the Schedule concerned. In
addition, any other item in a Schedule to this Act has effect according to its terms.
5
SCHEDULE 1 - Amendments
Immigration (Education) Act 1971
Item 1 Subsection 3(1) (definition of functional English)
9. This item repeals the definition of functional English in the IE Act, because the
term functional English will no longer be used in the substantive provisions of the
IE Act as part of the amendments made by item 10 below.
Item 2 Subsection 3(1) (paragraph (b) of the definition of visa commencement
day)
10. This item omits "4A(a)(ii)" and substitutes "4A(1)(a)(ii)" in the definition of visa
commencement day. This is consequential to the amendments made by items 8 and 11
below to insert new subsection 4A(2).
Item 3 Subsection 3(1)
11. This item inserts a new definition for vocational English. The new definition
explains that a person has vocational English where the provider of an approved English
course determines, in accordance with any procedures or standards specified by the
Minister under amended subsection 3(2), that the person has vocational English. This is
consequential to the amendments made by item 10 below, which will amend the upper
limit for eligibility to access English tuition from the current level of functional English
to a new level of vocational English.
12. The purpose of this item is to supply an appropriate defined term for vocational
English that is clear and relevant to the operation of the new upper limit for eligibility to
access English tuition. This new definition of vocational English is based on the current
definition of functional English in section 3(1) of the IE Act, which allows the provider
of an approved English course to determine that the person has functional English, in
accordance with any procedures or standards specified by the Minister.
13. The item also provides for the assessment of a person by the provider of an
approved English course as having vocational English. In conjunction with amended
subsection 3(2), the Minister may, by legislative instrument, make a determination
specifying the procedures or standards that this assessment must be made in accordance
with. This ensures that there is transparency of the procedures that the provider of an
approved English course must use to assess a person's English language proficiency.
Item 4 Subsection 3(2)
14. This item repeals and substitutes subsection 3(2) to provide that the Minister may,
by legislative instrument, make a determination specifying procedures or standards for
the purposes of the new definition of vocational English in subsection 3(1).
6
15. The purpose of this item is to enable the Minister to make a legislative instrument
to specify the procedures or standards that are relevant to the assessment by the provider
of an approved English course as to whether a person has vocational English. This
ensures that there is transparency in the procedures that the provider of an approved
English course must use to assess a person's English. This item also allows for the
meaning of vocational English to be further clarified by linking the term to a particular
standard of English language proficiency (which may include internationally recognised
standards or Australian standards promulgated by an authority competent in the
assessment of English language proficiency).
16. In conjunction with current subsection 3(3) of the IE Act, this amendment will
mean that an instrument specifying procedures or standards for the assessment of
vocational English under amended subsection 3(2) may make provision in relation to a
matter by applying, adopting or incorporating, with or without modification, any matter
contained in any other instrument or writing, as in force or existing at a particular time, or
as in force or existing from time to time. This reflects the current approach to an
instrument specifying procedures or standards for the assessment of functional English
in current subsection 3(2) of the IE Act. Subsection 3(3) is not amended by this Bill, and
retains its existing intention. In this context, the intention of subsection 3(3) is to ensure
the currency of the standard that is relevant to the assessment by the provider of an
approved English course as to whether a person has vocational English.
17. Allowing the ability for the new definition of vocational English to be linked to
an internationally recognised standard or Australian standard, if the Minister considers
that it is appropriate to do so, will ensure that there is transparency and certainty as to the
standard that providers of approved English courses must use to assess a person's English
language proficiency. It is possible that the internationally recognised standard or
Australian standard may change from time to time, in order to reflect developments in
second language learning across public and private enterprise. It is intended that any
changes to the relevant standard would be made clear to the broader Australian
community. To ensure transparency and certainty, the intention is that the standard that
will be specified for the purposes of amended subsection 3(2) will be made publicly
available.
18. One example of a standard that may be considered in this context is the Australian
Core Skills Framework (ACSF), which is a framework developed and maintained by the
Commonwealth Department of Education, Skills and Employment. 1 The ACSF assists
both specialist and non-specialist English language, literacy and numeracy practitioners
to describe an individual's performance in the five core skills of learning, reading,
writing, oral communication and numeracy. A standard or framework such as the ACSF
may change from time to time to reflect the latest developments in education assessment
and performance. The ACSF is also a standard that is publicly available to members of
the Australian community.
1
Department of Education, Skills and Employment, 'Australian Core Skills Framework',
7
Item 5 Section 4
19. This item inserts "(1)" before "The" in section 4. This amendment is
consequential to the insertion of new subsection 4(2) at item 7 below.
Item 6 Paragraph 4(b)
20. This item repeals and substitutes current paragraph 4(b), to allow for the provision
of English tuition to certain visa holders or visa applicants outside Australia.
21. When read in conjunction with the amendments made to section 4 by item 5
above, new paragraph 4(1)(b) provides that the Minister has a discretion to provide, or
arrange the provision of, English courses to persons who are outside Australia and hold,
or have applied for, either:
a permanent visa; or
a temporary visa of a class specified in a legislative instrument made by the
Minister.
22. The purpose of this item is to expand eligibility for the offshore delivery of
English courses to certain visa holders and visa applicants who are outside Australia, and
to support their English language learning in preparation for their migration to Australia.
23. New subparagraph 4(1)(b)(i) provides that English courses may be delivered to
persons who are outside Australia and who hold, or have applied for, a permanent visa.
This amendment expands the current eligibility to a broader group of persons. Current
paragraph 4(b) of the IE Act only permits the provision of English courses to persons
who are outside Australia and who have applied for a permanent visa, and this will
extend it to persons who hold a permanent visa.
24. New subparagraph 4(1)(b)(ii) enables the provision of English courses to persons
who are outside Australia and who hold, or have applied for, a temporary visa of a
specified class. Currently persons offshore who hold, or have applied for, temporary
visas are not entitled to AMEP. In conjunction with the amendments made by item 7
below, the Minister will be able to specify the classes of temporary visas in a legislative
instrument made under new subsection 4(2). It is necessary to provide the Minister with
the ability to specify the classes of temporary visas that would meet this eligibility
requirement, as there may be some classes of temporary visas where it is inappropriate
for the Government to fund the offshore delivery of English courses. For example,
circumstances where it may be inappropriate for a class of temporary visa to be specified
in the legislative instrument may include, but are not limited to, the following:
Where the mere fact that a person holds, or has applied for, a temporary visa of a
certain class does not demonstrate an intention to migrate to Australia; or
Where, as a criterion for the grant of a temporary visa of a particular class, it is
necessary for the person to demonstrate English language proficiency at a certain
level.
8
25. New paragraph 4(1)(b) will provide the Minister with the discretion to decide
whether English courses should be provided to this cohort of persons. The fact that a
person outside Australia is a visa holder or visa applicant provides an objective
requirement for ascertaining whether a person is intending to migrate to Australia. The
Minister will retain the discretion to decide, in policy, if any other criteria should apply to
the visa holder or visa applicant before they can access English tuition outside Australia.
This amendment is not intended to impose an obligation on the Minister to provide
English courses to all such visa holders or visa applicants outside Australia. Instead, this
amendment provides the Minister with the flexibility to provide for the offshore delivery
of English courses to such persons where the Minister considers that the circumstances
are appropriate to do so. For example, the Minister may decide, for the purposes of new
paragraph 4(1)(b), that it would be appropriate for such persons to be delivered English
courses offshore via electronic or online means.
Item 7 At the end of section 4
26. This item inserts new subsection 4(2), which provides that the Minister may, by
legislative instrument, make a determination specifying a class of temporary visa for the
purposes of new subparagraph 4(1)(b)(ii). This item is consequential to the amendment
made at item 6 above.
27. The purpose of this item is to provide the Minister with an express power to
specify, by legislative instrument, a class of temporary visa that a person must hold, or
have applied for, in order to access English courses outside Australia. The inclusion of
an express power by the Minister to make a legislative instrument reflects modern
drafting practices. This will also ensure consistency with other express powers to make
legislative instruments in the Bill.
28. The power in new subsection 4(2) is a new and separate power to the power in
new subsection 4A(2), which empowers the Minister to specify a class of temporary visa
to be held by a person in order to be eligible to access English courses in Australia.
Item 8 Section 4A
29. This item inserts "(1)" before "A" in section 4A. This amendment is
consequential to the insertion of new subsection 4A(2) at item 11 below.
Item 9 Subparagraph 4A(a)(ii)
30. This item omits "paragraph" and substitutes "subparagraph" in current
subparagraph 4A(a)(ii). This is a minor technical correction to ensure that the legislative
instrument made by the Minister is properly referenced as being made "for the purposes
of this subparagraph" and is also consistent with new subsection 4A(2), inserted at item
11 below. When read in conjunction with the amendments to section 4A made at item 8
above, this subparagraph will be referred to as amended subparagraph 4A(1)(a)(ii).
9
Item 10 Paragraph 4A(b)
31. This item amends paragraph 4A(b) by omitting the term "functional" and
substituting the term "vocational". When read in conjunction with the amendments to
section 4A made at item 8 above, this paragraph will be referred to as amended paragraph
4A(1)(b).
32. Currently, paragraph 4A(b) provides that one of the statutory criteria for when a
person is eligible for English tuition in Australia is that the person does not have
functional English. The current definition of functional English in subsection 3(1) of
the IE Act provides that a person has functional English if the provider of an approved
English course determines, in accordance with any procedures or standards specified by
the Minister under subsection 3(2), that the person has functional English.
33. Amended paragraph 4A(1)(b) provides that one of the statutory criteria for when a
person is eligible for English tuition in Australia is that the person does not have
vocational English. It is intended that the use of the term vocational English will
reference a higher level of English proficiency when compared to the current term
functional English. The effect of amended paragraph 4A(1)(b) is that a person who does
not yet have vocational English will be an eligible person, so long as they also satisfy the
statutory criteria in the other paragraphs of amended subsection 4A(1). This means that
the person will be able to continue their English language learning until they attain the
higher level of vocational English. The policy intention is that this will support eligible
persons to increase their level of English proficiency and improve their future education
and employment prospects, as well as their ability to integrate in Australian society.
34. The term vocational English is explained in the new definition in subsection 3(1)
of the IE Act, as inserted by item 3 above.
Item 11 At the end of section 4A
35. This item inserts new subsection 4A(2), which provides that the Minister may, by
legislative instrument, make a determination specifying a class of temporary visa for the
purposes of new subparagraph 4A(1)(a)(ii).
36. The purpose of this item is to provide the Minister with an express power to
specify, by legislative instrument, a class of temporary visa that a person must hold in
order to be eligible to access approved English courses in Australia. While current
subparagraph 4A(a)(ii) already refers to a legislative instrument made by the Minister for
the purposes of this subparagraph, the inclusion of an express power by the Minister to
make a legislative instrument reflects modern drafting practices. This will also ensure
consistency with other express powers to make legislative instruments in the Bill.
37. The power in new subsection 4A(2) is a separate power to the power in new
subsection 4(2), which empowers the Minister to specify a class of temporary visa that a
person must hold, or have applied for, in order to access English courses outside
Australia.
10
Item 12 Section 4B (heading)
38. This item omits the words "510 hours of" in the heading of section 4B.
39. This amendment is consequential to item 13 below, which repeals subsection
4B(2) and removes the 510 hour statutory limit on an eligible person's entitlement to
English tuition in Australia.
Item 13 Subsection 4B(2)
40. This item repeals current subsection 4B(2).
41. Current subsection 4B(2) provides that the statutory obligation on the Minister to
provide, or arrange the provision of, tuition in an approved English course to an eligible
person under current subsection 4B(1) will end once the person has had 510 hours of
tuition in approved English courses.
42. The purpose of this amendment is to remove the current statutory limitation of
510 hours that is imposed on English tuition to which an eligible person is entitled. The
effect of the amendment is that eligible persons would remain entitled to English tuition,
provided that they remain eligible for the purposes of amended section 4A and that the
requirements in subsection 4B(1) continue to be met. The intention is that the removal of
the 510 hours' limitation will support and incentivise eligible persons to improve their
English proficiency, and enable their English language learning to continue.
Item 14 Paragraph 4C(1)(b)
43. This item omits "specified under subparagraph 4A(a)(ii)" and substitutes
"mentioned in subparagraph 4A(1)(a)(ii)" in paragraph 4C(1)(b). This amendment is
consequential to the amendments to section 4A made by items 8 and 11 above. New
subsection 4A(2) provides the Minister with an express power to make a determination,
by legislative instrument, specifying a class of temporary visa for the purposes of
amended subparagraph 4A(1)(a)(ii). As the power is only mentioned in amended
subparagraph 4A(1)(a)(ii), it is appropriate for this to be reflected in the wording of
paragraph 4C(1)(b).
Item 15 After subsection 4C(1)
44. This item inserts new subsection 4C(1A), which provides that section 4C does not
apply to a person whose visa commencement day is on or before 1 October 2020.
45. Current section 4C outlines time limits for the registration for or commencement
of English courses, and provides that a person stops being eligible at the end of certain
periods of time. If a person fails to register for or to commence an approved English
course within the time limits identified in subsection 4C(2), then subsections 4C(3)-(6)
set out the process by which a person may apply for an extension of time to register for or
commence an English course.
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46. New subsection 4C(1A) excludes persons whose visa commencement day is on or
before 1 October 2020 from the time limits set out in amended section 4C. As defined in
subsection 3(1) of the IE Act, visa commencement day, in relation to a person, means the
earlier of the following days:
the first day the person was in Australia on or after the day when a permanent visa
held by the person came into effect; or
the first day the person was in Australia on or after the day when a temporary visa
of a class mentioned in subparagraph 4A(1)(a)(ii) held by the person came into
effect.
47. If a person is granted a permanent visa (or a temporary visa of a specified class),
and the first day that a person is in Australia on or after that visa comes into effect is a
date that is on or before 1 October 2020, then the time limits in amended section 4C do
not apply to that person. This will be the case regardless of whether the person is in or
outside Australia on 1 October 2020. If a person is outside Australia on 1 October 2020,
then as long as their visa commencement day is on or before 1 October 2020, the time
limits in amended section 4C will not apply.
48. If a person has a visa commencement day before 1 October 2020, and their
eligibility had previously ceased under current section 4C before the Bill commences, the
intention is that, once the Bill commences, the person's eligibility would be re-enlivened
as the time limits in amended section 4C will no longer apply to them. This would allow
the person to access English courses, provided that they otherwise satisfy the criteria in
amended subsection 4A(1) of the IE Act.
49. If a person has a visa commencement day after 1 October 2020, new subsection
4C(1A) would not apply to them. This would mean that the time limits for the
registration for, or commencement of, English courses in amended section 4C would
continue to apply to those persons.
50. The purpose of this amendment is to remove disincentives to English language
learning for a cohort of persons in Australia on or before 1 October 2020. The relevant
date of 1 October 2020 has been chosen because of the unprecedented challenges posed
by the COVID-19 pandemic, as this will allow those people in Australia on or before that
date, who did not register for or commence English tuition within the time limits set out
in the current section 4C, the opportunity to engage in English studies. Improving their
level of English proficiency will allow these persons the opportunity to boost their
employment and/or education prospects (which will be a critical part of Australia's
economic recovery as a result of the COVID-19 pandemic), and increase their ability to
integrate in Australian society.
51. In the 2016 Census, there were 819,926 respondents that self-reported their ability
to speak English as 'not well' or 'not at all'. This represented 3.5 per cent of the
population, an increase of 0.46 per cent when compared to the 2011 Census. These
statistics point towards a growing and unacceptable number of people in Australia who
12
are unable to speak the national language. Poor or non-existent English skills place
people in Australia at a significant disadvantage, as this limits their ability to fully
participate in Australian life, including with respect to employment and active
participation in the Australian democracy.
52. The COVID-19 pandemic has presented an unprecedented number of challenges
to the Australian community, many of which are exacerbated for those with poor English
skills. The ability to fully understand Government public health messaging is particularly
critical at this time, as the consequences of failing to comprehend health advice relating
to COVID-19 can have devastating consequences for individuals and the broader
community. A July 2020 Australian Institute of Criminology survey2 relating to domestic
violence during the COVID-19 pandemic found that of 15,000 respondents, 4.6 per cent
reported physical or sexual violence from a current or former partner and 11.6 per cent
reported at least one form of emotionally abusive, harassing or controlling behaviour.
One in five (18.7 per cent) of these women were from non-English speaking
backgrounds. While the level of English proficiency of the respondents was not assessed,
acquiring English language skills will better equip those who need to seek support,
especially in times of crisis, but are facing barriers to doing so due to language
limitations.
53. The COVID-19 pandemic has also caused a significant increase in the rate of
unemployment, and as Australia moves towards the post COVID-19 recovery phase, the
employment market will become more competitive. English skills are key to successful
employment outcomes in Australia, and the removal of timeframes for commencement in
English courses will allow many people who are currently ineligible for English tuition
the opportunity to improve their English, and subsequently, their employment prospects.
While a focus on English language learning early in the migration journey is encouraged,
it is recognised that this has not been possible for many migrants already in Australia, due
to conflicting settlement priorities.
54. Due to the unique circumstances posed by the COVID-19 pandemic, the
Government proposes a removal of the time limits for registration and commencement of
English tuition for those certain visa holders in Australia on or before 1 October 2020,
while keeping these time limits in place for those who arrive after this date, as an
incentive to commence English studies early in the migration journey. This change will
also reduce the administrative burden in relation to applications for an extension of time
under current section 4C.
Item 16 Paragraph 4D(1)(b)
55. This item omits "specified under subparagraph 4A(a)(ii)" and substitutes
"mentioned in subparagraph 4A(1)(a)(ii)" in paragraph 4D(1)(b). This amendment is
consequential to the amendments to section 4A made by items 8 and 11 above. New
subsection 4A(2) provides the Minister with an express power to make a determination,
2
Australian Institute of Criminology, 'The prevalence of domestic violence among women during the
COVID-19 pandemic', July 2020,
13
by legislative instrument, specifying a class of temporary visa for the purposes of
amended subparagraph 4A(1)(a)(ii). As the power is only mentioned in amended
subparagraph 4A(1)(a)(ii), it is appropriate for this to be reflected in the wording of
paragraph 4D(1)(b).
Item 17 After subsection 4D(1)
56. This item inserts new subsection 4D(1A), which provides that section 4D does not
apply to a person whose visa commencement day is on or before 1 October 2020.
57. Current section 4D establishes a time limit for the completion of English courses,
by providing that a person stops being eligible at the end of the period of 5 years starting
on his or her visa commencement day. If a person does not complete an approved
English course within the time limit identified in subsection 4D(2), then subsections
4D(3)-(6) set out the process by which a person may apply for an extension of time to
complete their English course.
58. New subsection 4D(1A) excludes persons whose visa commencement day is on
or before 1 October 2020 from the time limits set out in amended section 4D. As defined
in subsection 3(1) of the IE Act, visa commencement day, in relation to a person, means
the earlier of the following days:
the first day the person was in Australia on or after the day when a permanent visa
held by the person came into effect; or
the first day the person was in Australia on or after the day when a temporary visa
of a class mentioned in subparagraph 4A(1)(a)(ii) held by the person came into
effect.
59. If a person is granted a permanent visa (or a temporary visa of a specified class),
and the first day that a person is in Australia on or after that visa comes into effect is a
date that is on or before 1 October 2020, then the time limits in amended section 4D do
not apply to that person. This will be the case regardless of whether the person is in or
outside Australia on 1 October 2020. If a person is outside Australia on 1 October 2020,
then as long as their visa commencement day is on or before 1 October 2020, the time
limits in amended section 4D will not apply.
60. If a person has a visa commencement day before 1 October 2020, and their
eligibility had previously ceased under current section 4D before the Bill commences, the
intention is that, once the Bill commences, the person's eligibility would be re-enlivened,
as the time limits in amended section 4D will no longer apply to them. This would allow
the person to access English courses, provided that they otherwise satisfy the criteria in
amended subsection 4A(1) of the IE Act.
61. If a person has a visa commencement day after 1 October 2020, new subsection
4D(1A) would not apply to them. This would mean that the time limits for the
completion of, English courses in amended section 4D would continue to apply to those
persons.
14
62. The purpose of this amendment is to remove disincentives to English language
learning for a cohort of persons in Australia on or before 1 October 2020. It is
appropriate for 1 October 2020 to be chosen as the relevant date because this will allow
those people in Australia on or before that date, and who did not complete English tuition
within the time limits set out in the current section 4D, the opportunity to engage in
English studies. Improving their level of English proficiency will allow these persons the
opportunity to boost their employment and/or education prospects (which will be a
critical part of Australia's economic recovery as a result of the COVID-19 pandemic),
and increase their ability to integrate in Australian society.
63. In the 2016 Census, there were 819,926 respondents that self-reported their ability
to speak English as 'not well' or 'not at all'. This represented 3.5 per cent of the
population, an increase of 0.46 per cent when compared to the 2011 Census. These
statistics point towards a growing and unacceptable number of people in Australia who
are unable to speak the national language. Poor or non-existent English skills place
people in Australia at a significant disadvantage, as this limits their ability to fully
participate in Australian life, including with respect to employment and active
participation in the Australian democracy.
64. The COVID-19 pandemic has presented an unprecedented number of challenges
to the Australian community, many of which are exacerbated for those with poor English
skills. The ability to fully understand Government public health messaging is particularly
critical at this time, as the consequences of failing to comprehend health advice relating
to COVID-19 can have devastating consequences for individuals and the broader
community. A July 2020 Australian Institute of Criminology survey3 relating to domestic
violence during the COVID-19 pandemic found that of 15,000 respondents, 4.6 per cent
reported physical or sexual violence from a current or former partner and 11.6 per cent
reported at least one form of emotionally abusive, harassing or controlling behaviour.
One in five (18.7 per cent) of these women were from non-English speaking
backgrounds. While the level of English proficiency of the respondents was not assessed,
acquiring English language skills will equip those who need to seek support, especially in
times of crisis, but are facing barriers to doing so due to language limitations.
65. The COVID-19 pandemic has also caused a significant increase in the rate of
unemployment, and as Australia moves towards the post COVID-19 recovery phase, the
employment market will become more competitive. English skills are key to successful
employment outcomes in Australia, and the removal of timeframes for completion of
English courses will allow many people who are currently ineligible for English tuition
the opportunity to improve their English, and subsequently, their employment prospects.
While a focus on English language learning early in the migration journey is encouraged,
it is recognised that this has not been possible for many migrants already in Australia, due
to conflicting settlement priorities.
3
Australian Institute of Criminology, 'The prevalence of domestic violence among women during the
COVID-19 pandemic', July 2020,
15
66. Due to the unique circumstances posed by the COVID-19 pandemic, the
Government proposes a removal of the time limits for completion of English tuition for
certain visa holders in Australia on or before 1 October 2020, while keeping these time
limits in place for those who arrive after this date, as an incentive to commence English
studies early in the migration journey. This change will also reduce the administrative
burden in relation to applications for an extension of time under current section 4D.
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ATTACHMENT A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Immigration (Education) Amendment (Expanding Access to English Tuition) Bill
2020
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of the Bill
The purpose of this Bill is to expand access to government-funded English tuition for
migrants and encourage the acquisition of a higher level of English proficiency. The Bill
will enable the Australian Government to remove disincentives to English language
learning for migrants, and provide English tuition to migrants who are ineligible for the
program due to current statutory time limits, or who have exhausted their available tuition
hours without reaching a vocational level of English.
The Bill is to amend the Immigration (Education) Act 1971 (the Act), which relates to the
provision of certain courses of instruction for migrants and certain other persons. This
includes the provision of English courses. The Act sets out who is eligible and ineligible
for English courses, as well as time limits for registration, commencement and
completion. The Act also establishes the Minister's obligation to provide or arrange the
provision of tuition in an approved English course to certain eligible persons, and
explains that the obligation ceases when the person has had 510 hours of tuition in
approved English courses.
There is one Schedule to the Bill, which proposes the following amendments to the Act:
amending the upper limit for eligibility to access English tuition from functional
English to a new level of vocational English;
removing the 510 hour statutory limit on an eligible person's entitlement to
English tuition;
removing the statutory time limits for registering for, commencing and
completing English tuition for certain people who held a visa and were in
Australia on or before 1 October 2020; and
allowing for the provision of English tuition to certain visa holders or visa
applicants outside Australia, to support their English language learning in
preparation for their migration to Australia.
Amending the upper limit for eligibility to access English tuition from functional
English to a new level of vocational English
Current eligibility requirements in section 4A of the Act mean a migrant is no longer
eligible for tuition under the Act once they reach the level of 'functional English'. This is
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lower than the level of English required by most employers, and for enrolment in TAFE
courses. Extending eligibility (and the exit point for the program) to the higher standard
of 'vocational English' will:
enhance access to vocational education pathways for migrants (including into
specific skills-shortage areas);
bring Australia into line with best practice approaches internationally; and
set a higher expectation for the language skills needed for migrants to be able to
participate fully in the Australian community.
Removing the 510 hour statutory limit on an eligible person's entitlement to English
tuition
Learning a new language is complex and takes time, and the number of hours of tuition
required by each individual varies based on many factors, including age, prior education
and the linguistic distance of their first language from English. Removing the cap as
currently set in section 4B of the Act on tuition hours recognises that language learning
requires time, and sends a strong signal to eligible migrants regarding the support offered
by the Australian Government to learn the national language.
Removing the statutory time limits for registering for, commencing and completing
English tuition for certain people who held a visa and were in Australia on or before
1 October 2020
Currently, a person is required to register for English tuition within six months of their
visa commencement day, commence tuition within 12 months, and complete tuition
within five years. The term 'visa commencement day' is used in the Act to refer to the
first day that a person is in Australia on or after the day that their permanent visa or
eligible temporary visa comes into effect. A person is able to apply for an extension of
this time limit in certain circumstances. These time limits are currently provided in
sections 4C and 4D of the Act.
There are cohorts who have been in Australia for some time, who for various reasons
have not registered for, commenced or completed English tuition within the current time
limits and have therefore become ineligible for English tuition. While early engagement
in English tuition is encouraged for new migrants (and the current time limits will
continue to apply for those with a visa commencement day after 1 October 2020), it is
recognised that for those already in Australia, the COVID-19 pandemic has created a
unique set of circumstances, including exacerbating issues relating to employment or
social isolation for those with low English proficiency. Removing the time limits for
registration, commencement and completion of English tuition for those with a visa
commencement day of on or before 1 October 2020 will enable reengagement of these
currently ineligible persons and encourage them to continue with their English studies at
a rate that suits them and their work and family commitments. Retaining the current time
limits on registration, commencement and completion of English tuition for those with a
visa commencement day of after 1 October 2020 will act as an incentive to early
engagement in English language learning for newer arrivals in Australia. Early
engagement is encouraged because English proficiency plays a central role in
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determining the successful integration of migrants into Australian society and is a key
factor associated with education and employment outcomes. Although the existing time
limits will continue to apply to this group of persons, they will not be significantly
disadvantaged as they will be able to request extensions of the time limits under section
4C and 4D where needed. Requests for extensions of time will be considered having
regard to matters such as the person's medical history, family and caring commitments,
and any other compelling or compassionate reasons.
The Bill will therefore amend the Act to specify that the time limits at current sections 4C
and 4D do not apply for those with a visa commencement day on or before 1 October
2020.
Allowing for the provision of English tuition to certain visa holders or visa
applicants outside Australia, to support their English language learning in
preparation for their migration to Australia
Section 4 of the Act currently provides that the Minister may provide, or arrange
provision of, English courses to persons who are outside Australia and have applied for a
permanent visa. The Bill will provide the Minister with a discretion to decide whether
English courses may be provided to those who have applied for or have been granted a
permanent visa or a temporary visa of a class specified by legislative instrument made by
the Minister.
The amendment would expand eligibility to allow for English courses to be accessed by
those intending to migrate to Australia. This change is not intended to impose an
obligation on the Minister to provide tuition in approved English courses to persons
outside Australia, but will allow for the discretion for the Minister to decide, in policy, if
this cohort of persons will be able to access English courses under the Act.
Human rights implications
This Bill promotes the following rights:
Articles 6 and 13 of the International Covenant on Economic, Social and Cultural
Rights (ICESCR)
Article 7 of the Convention on the Elimination of All Forms of Racial
Discrimination (CERD)
Article 13 of ICESCR recognises the right of everyone to education and that "education
shall enable all persons to participate effectively in a free society, promote
understanding, tolerance and friendship among all nations and all racial, ethnic or
religious groups". The Bill promotes Article 13 of ICESCR insofar as it will enable
more migrants to be able to access free English tuition for longer and until they reach a
higher level of proficiency which will enhance access to vocational pathways and support
them to participate more fully in the Australian community.
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The Bill also promotes the right to work in Article 6 of the ICESCR which calls on states
to assist the realisation of the right to work through technical and vocational guidance and
training programmes. The provision of free English tuition in Australia is a key enabler
for many participants to further their employment prospects and help them realise this
right.
This Bill also promotes Article 7 of the CERD which calls for the State to promote
understanding, tolerance and friendship among racial and ethnic groups. The Bill aims to
facilitate social cohesion and national unity, through support for English language
acquisition. English proficiency plays a central role in determining the successful
integration of migrants into Australian society and is a key factor associated with
education and employment outcomes.
By providing measures to support migrants with low English proficiency to learn the
national language, the Bill will facilitate social cohesion and boost the education and
potential employment prospects of participating migrants. The Bill will be a key enabler
for the Australian Government's critical priorities in light of the economic challenges
arising from the COVID-19 pandemic.
Conclusion
The Bill is compatible with human rights because its intended purpose is to facilitate
improved access to education (English language tuition) for migrants in Australia which
will support social cohesion and allow migrants to participate fully in the Australian
community which promotes Articles 6 and 13 of ICESCR and Article 7 of CERD.
The Hon. Alan Tudge MP, Minister for Population, Cities and Urban
Infrastructure, on behalf of the Hon. David Coleman MP,
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs