Commonwealth of Australia Explanatory Memoranda

[Index] [Search] [Download] [Bill] [Help]

MIGRATION LEGISLATION AMENDMENT (STUDENT VISAS) BILL 2012

                                                                               ATTACHMENT B

                     Statement of Compatibility with Human Rights
    Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
                   Migration Legislation Amendment (Student Visas) Bill 2012
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
(the Human Rights Act).
Overview of the Bill
The Migration Legislation Amendment (Student Visas) Bill 2012 ("the Bill") amends the Migration
Act 1958 ("the Migration Act") and the Education Services for Overseas Students Act 2000 ("the
ESOS Act") to implement recommendation 24 of the independent Strategic Review of the Student
Visa Program, conducted by the Hon. Michael Knight AO (the "Knight Review").

Recommendation 24 of the Knight Review, accepted by the Government on 22 September 2011,
recommends the abolishment of the automatic cancellation of student visas and for the regime to be
replaced by a system in which information conveyed by student course variations is used as an input
into more targeted and strategic analysis of non-compliance.

The amendments in this Bill give effect to the Government's policy to abolish the automatic
cancellation of student visa regime, for unsatisfactory course attendance and course process, through
amendments to the ESOS Act.

In particular, the Bill amends the ESOS Act to:

       ·   insert a definition of "contact details" of a person who becomes or is an accepted student;

       ·   require a registered provider to give particulars of any change in the contact details or
           other prescribed details of an accepted student within 14 days after the provider becomes
           aware of the change; and

       ·   amend section 20 of the ESOS Act to prevent a registered provider from being able to
           send a notice under this section to a student who breaches a prescribed condition of their
           student visa.
The Bill also amends the Migration Act to insert a note which cross references the amendment to
section 20 of the ESOS Act.
Human rights implications
The amendment to section 20 of the ESOS Act does not raise human rights issues. This amendment
will prevent a registered provider from sending a notice under this section to a student who breaches
a prescribed condition of their student visa. This will cease the automatic cancellation of student
visas under section 137J of the Migration Act. Instead, the Department of Immigration and
Citizenship (DIAC) will individually assess reports of non-compliance and will have to exercise their
discretion to decide whether to cancel or not. This is more fair and reasonable for clients and will not
be incompatible with the Human Rights Act.
The proposed amendments to section 19 of the ESOS Act will require a registered provider to
provide updated student contact information to the Department of Industry, Innovation, Science,
Research and Tertiary Education (DIISRTE) through the Provider Registration and International
Student Management System (PRISMS). The obligation on the registered provider to provide any
subsequent changes to contact details raises the right to privacy, which can be found in Article 17.1
of the International Covenant on Civil and Political Rights.
Article 17.1 provides that:
       No one shall be subjected to arbitrary or unlawful interference with his privacy, family, or
       correspondence, nor to unlawful attacks on his honour or reputation.
The extent to which an individual is entitled to a right to privacy in Australia is governed by the
Privacy Act 1988 (Cth) (the Privacy Act). Section 14 of the Act outlines the Information Privacy
Principles which assist Government departments to ensure the lawful collection, solicitation, storage,
record keeping, access, use and disclosure of personal information.
The proposed amendments to section 19 of the ESOS Act will comply with the requirements of
section 14 of the Privacy Act. The requirement on registered providers to provide updated student
contact information is necessary and within the reasonable and proportionate means to achieve the
objectives of the Bill:
   ·   to maximise the likelihood of the students receiving an important notice affecting their
       immigration status; and
   ·   to assist in the conduct of any subsequent immigration compliance activity.
Conclusion
The Bill is compatible with human rights because to the extent that it may limit human rights, those
limitations are reasonable, necessary and proportionate.


             The Hon. Chris Bowen MP, Minister for Immigration and Citizenship