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Thursday, 11 October 2012
Page: 7994


Senator CASH (Western Australia) (13:12): I rise to speak on the Migration Legislation Amendment (Student Visas) Bill 2012. Whilst the coalition will not be opposing the bill, we do have some concerns with it. The purpose of the bill is to amend the Education Services for Overseas Students Act 2000, the ESOS Act, and the Migration Act 1958 to abolish the current system of automatic visa cancellation for student visa holders who are in breach of the academic progress or attendance requirements of their student visa. The decision to cancel a student visa on these grounds will become discretionary rather than automatic.

The bill also amends the ESOS Act to provide that a registered provider of education to overseas students must advise the government of any change in a student's contact details within 14 days after becoming aware of the change. This bill arises as part of the government's response to the implementation of the Knight review's 41 recommendations, which the government has adopted, and the Strategic review of the student visa program report, which was released on 22 September 2011. Recommendation 24 of the Knight review is to abolish the automatic cancellation of student visas, and replace that regime with a system in which information conveyed by student course variations is used as one factor to be taken into account in a more targeted and strategic analysis of non-compliance.

The bill was referred to the Legal and Constitutional Affairs Legislation Committee by the Senate on 22 March 2012. The committee made three recommendations as follows:

Recommendation 1

… The committee recommends that the Department of Innovation, Industry, Science, Research and Tertiary Education modify the Provider Registration and International Students Management System—

otherwise known as PRISM—

to allow for the effective and secure upload of data from the databases of registered providers, while maintaining the integrity of the system. The committee recommends that this modification be completed and be made operational as soon as possible.

Recommendation 2

… Until the Provider Registration and International Students Management System has been modified as set out in Recommendation 1, the committee recommends that, in addition to their obligations under Part 3 of the Education Services for Overseas Students Act 2000, registered providers only be required to notify the Department of Immigration and Citizenship of students' up-to-date contact information at the commencement of each semester, when students reenrol in their approved courses, or upon any variation or change to their enrolled course.

Recommendation 3

… Subject to Recommendations 1-2, the committee recommends that the Senate pass the Bill.

Submitters and witnesses to the Senate committee inquiry supported the proposal to abolish the automatic cancellation of student visas upon breach of a prescribed visa condition as proposed in new section 20(4A) of the Education Act. However, many expressed concern with the requirement for registered providers to notify the Department of Immigration and Citizenship within 14 days of any changes to an accepted student's contact or other prescribed details, as proposed in new section 19(1A) of the Education Act which provides:

A registered provider must give the Secretary 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.

As set out in the Senate committee's report, the concerns of the submitters and witnesses are focussed on two issues: compliance costs and the PRISMS. PRISMS is administered by the Department of Industry, Innovation, Science, Research and Tertiary Education and interfaces with the Department of Immigration and Citizenship's electronic system. PRISMS is a secure computer system for registered providers to manage their student enrolments, comply with the requirements of the Education Act and report student visa holders who have breached the prescribed conditions of their visa.

As stated in the Senate committee's report, at present part 3 of the ESOS Regulations 2001 requires registered providers to maintain their own enrolment records or databases. Providers are only required to update a student's address on PRISMS when reporting a change to that student's enrolment, such as a course variation, or when issuing a notice under section 20 of the Education Act.

Currently, smaller providers estimate they have an obligation to enter information into PRISMS for approximately one to two per cent of enrolled students, and larger universities estimate their current obligation to be for five per cent of students. The impact, however, of the proposed new section 19(1A) is that all registered providers will be required to enter all information into PRISMS. This means that every time a student changes address or gets a new mobile phone number, these details must be entered into PRISMS within 14 days after the provider becomes aware of the change. To facilitate this change, in the majority of cases extra administrative staff will be required to ensure compliance with the new reporting requirements. The bad news for international students—and in turn for the Australian international education industry—is that these compliance costs will in all likelihood be passed onto students or will lead to a reduction in the number and quality of services provided to students, hardly an outstanding outcome for a piece of legislation.

The regulatory impact statement for the Knight review notes that the international education sector is Australia's third biggest export industry, generating an income of $18.3 billion in 2010. One might say that as a country we must be doing everything we can to support our international education industry, in particular given the poor record of the Labor government when it comes to international education in Australia. The last thing this industry needs as it is trying to re-establish its international reputation is for providers to be layered with additional red tape forcing them to pass on the cost of compliance to international students.

As stated in the Universities Australia submission to the Senate inquiry:

The lack of consideration given to university administrative and reporting loads is reflected in the absence of any mention of the regulatory burden on providers in the Regulatory Impact Statement (RIS) for the Bill.

This is extremely concerning for the coalition and shows a lack of understanding of the impact of the proposed changes on behalf of this government.

As I have stated, the increased regulatory burden for registered providers resulting from the proposed insertion of section 19(1A) is a significant one. Providers estimate they currently enter information in PRISMS for a maximum-of five students in every 100 when reporting a change to the student's enrolment. Following the insertion of section 19(1A), they will be required to enter information into PRISMS for every student. Let us just look at that comparison again. They currently insert the information for five in every 100 students. If this change goes through, and the government does not take heed of what was a unanimous Senate committee's report, that is the administrative burden that will be placed on universities and providers.

The definition of 'contact details' will also be inserted into the ESOS Act as part of this bill. Contact details are defined as: the person's current residential address, the person's mobile phone number and the person's email address. Currently, registered providers already maintain their own databases containing student enrolment, course details and contact details, in compliance with part 3 of the Education Act. This proposal is therefore nothing more and nothing less than another example of what will become double handling and administrative inefficiency, something which I have to say I thought this government was trying to reduce. I also note the irony in the explanatory memorandum, which states that one of the objectives of the bill is to:

… reduce the administrative burden associated with students who attend an office of the Department of Immigration and Citizenship to stop the automatic cancellation process or to apply for revocation of a cancellation. This will allow integrity resources to be more strategically targeted towards risk.

Ironically, there is no doubt that the bill achieves this stated objective, but whilst it may well reduce the administrative burden of DIAC—and some might argue that, given the lack of resources that the department has because of the border protection debacle, that is a good thing—the bill merely shifts the administrative burden to registered providers and that is hardly an ideal outcome, as was recognised in the Senate committee report. The Senate committee report also states that submitters and witnesses to the inquiry raised the time consuming manual data entry required to update student records in PRISMS and pointed to other existing electronic reporting systems, such as the higher education information management system, which allow information to be uploaded directly from registered providers' databases as appropriate models. Many submitters and witnesses supported the modification of PRISMS to similarly allow for the upload of bulk data.

The Department of Industry, Innovation, Science, Research and Tertiary Education, who administer PRISMS, advised the Senate committee that they are responding to the concerns of registered providers in relation to PRISMS by exploring possible enhancements to simplify and expedite data entry for providers. A claim made by the Department of Immigration and Citizenship in its submission to the Senate inquiry was that it requires immediate access to up-to-date student contact details for purposes other than student course variations advised by registered providers. In its submission DIAC stated:

The Department may consider compliance action in circumstances where outside allegations or information has been brought to the Department's attention that the provider is not aware of. For example, where adverse information is received by the Department through external channels such as the Immigration dob-in line or targeted integrity obligations. For this reason, it is important to have access to the most up to date contact details at all times, rather than just when a student course variation is made.

I do note that despite the department's position, so eloquently put, the committee formed the view that as DIAC was requesting registered providers furnish potentially large amounts of information, and taking into account possible privacy concerns, it was actually the DIAC's responsibility to facilitate the effective and safe upload of information from provided databases to PRISMS. At paragraph 2.30 the committee found as follows:

The Committee ... notes evidence presented during the inquiry, suggesting that the proposal to require registered providers to notify DIAC of any changes in students' contact or other prescribed details is unnecessary and is (within 14 days) overly prescriptive and an unnecessary burden on providers.

Again, that is the finding of the Senate Legal and Constitutional Affairs Committee inquiry, which, I understand, was a unanimous report. Paragraph 2.32 states:

The Committee acknowledges that, under Part 3 of the Education Act, registered providers are already required to maintain records and/or databases containing students' contact details. Further, if a student breaches a prescribed visa condition, subsection 19(2) of the Education Act requires providers to notify DIAC of that breach, including the student's contact details. The Committee therefore considers that existing provisions of the Education Act provide DIAC with up-to-date contact information for students who are reported for non-compliance with prescribed visa conditions. The Committee notes that there is no restriction on DIAC from approaching registered providers at any time for a student's current contact information.

The committee therefore recommended that PRISMS be modified to allow for the effective and secure upload of data from the databases of registered providers while maintaining the integrity of the system and that until PRISMS has been modified providers should only be required to advise DIAC of up-to-date contact information at the start of each semester or upon any variation to their enrolled course.

While the committee report touches on compliance costs, the PRISMS electronic reporting system and consultation with the international education sector, there is still further clarification required in relation to the thresholds, the definitions and the trigger points that would accompany the new compliance regime. As the shadow minister for immigration, Scott Morrison, said in his speech in the other place, we need to be clear about the resource requirements that this new regime will demand. The minister needs to explain how he will define whether a student visa breach has been made, and how the minister is going to make these decisions under discretionary powers once the blanket automatic cancellation of student visas has been abolished.

The coalition is supportive of efforts to streamline and better target resources towards migration fraud and noncompliance in the student visa sector; however, the circumstances under which possible compliance action will be taken are not clear at this stage. Whilst an education provider will be still required to report a visa violation, it is not clear what mechanism or circumstance will trigger an investigation or prove severe enough to prompt visa cancellation.

We are already well aware of this Labor government's failure in the Immigration portfolio, specifically in relation to irregular maritime arrivals. Given the significant contribution the international student sector makes to our economy, it is extremely concerning that the Auditor-General found last year that management of this critical industry and of the visa program was not sufficiently robust to effectively meet the challenges involved in achieving the government's objective for the student visa program of balancing industry growth and program integrity.

The ANAO found that more than 350,000 non-compliance notices issued to students had not been acted upon, prompting fears that the backlog could obscure serious cases of noncompliance. The Auditor-General's report in May 2011 also found the department was unable to effectively monitor the 20-hour work restriction on student visas or to enforce compliance because of the lack of an appropriate regulatory regime.

The report also states that DIAC's integrity and compliance units were hampered in managing the pressure associated with the increase in program growth, by the department's failure to update its national compliance program after 2008, and by the backlog of non-compliance notices—NCNs—for student visa holders. The backlog of NCNs is estimated to be in excess of 350,000, with the Knight review identifying around 35 per cent belonging to the higher risk categories.

Interestingly, though, as a result of this bill, the unbelievable and quite damning administrative backlog of over 350,000 NCNs will simply be wiped away. DIAC will draw a line under the 350,000 non-compliance notices and will merely move on. I note that this is despite the Knight review identifying that 35 per cent of 350,000 non-compliance notices are within the high-risk category.

Australian taxpayers have lost confidence in this government's ability to run an efficient and effective migration program. It is, quite frankly, hard to see how DIAC will find the resources to manage this new discretionary regime, given the increased budgetary and staff pressures as a result of the government's mismanagement of the immigration program, particularly border protection. The coalition supports any measures that will improve and restore the integrity of the immigration system. It remains to be seen, however, whether this bill will do just that or merely add to the already existing chaos within the department.