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Education Services for Overseas Students (Registration Charges) Amendment Bill 2000



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Dep a rtmen t o f th e

P a rlia men ta ry Lib ra ry

I N F O R MA T I O N A N D R E S E A R C H S E R VI C E S

Bills Digest

No. 65 2000-01

Education Services for Overseas Students (Registration Charges) Amendment Bill 2000

ISSN 1328-8091

 Copyright Commonwealth of Australia 2000

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means including information storage and retrieval systems, without the prior written consent of the Department of the Parliamentary Library, other than by Senators and Members of the Australian Parliament in the course of their official duties.

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Published by the Department of the Parliamentary Library, 2000

I N F O R M A T I O N A N D R E S E A R C H S E R V I C E S

Bills Digest

No. 65 2000-01

Education Services for Overseas Students (Registration Charges) Amendment Bill 2000

Nathan Hancock Law and Bills Digest Group 31 October 2000

Contents

Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Package Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

This Bill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Main Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Increasing the Charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

The Principal Bill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Concluding Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Endnotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

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.

Education Services for Overseas Students (Registration Charges) Amendment Bill 2000

Date Introduced: 30 August 2000

House: House of Representatives

Portfolio: Education, Training and Youth Affairs

Commencement: Royal Assent.

Purpose

Package Overview

This Bill is associated with a number of related Bills. The whole package is as follows:

• 'the Principal Bill' Education Services for Overseas Students Bill 2000

• 'the Assurance Fund Bill' Education Services for Overseas Students (Assurance Fund Contributions) Bill 2000

• 'the Consequential Bill' Education Services for Overseas Students (Consequential and Transitional) Bill 2000

• 'the Registration Charges Bill' Education Services for Overseas Students (Registration Charges) Amendment Bill 2000

• 'the Migration Bill' Migration Legislation Amendment (Overseas Students) Bill 2000

A complete background to the context surround this legislative package is provided in the Bills Digest to the Education Services for Overseas Students Bill 2000.

This Bill

The purpose of this Bill is to amend the Education Services for Overseas Students (Registration Charges) Act 1997 to update the registration charge amounts.

2 Education Services for Overseas Students (Registration Charges) Amendment Bill 2000

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.

Background

The Education Services for Overseas Students (Registration Charges) Act 1997 (the Registration Charges Act) requires education service providers to pay an initial charge and an annual charge for registration under the Overseas Students (Registration of Providers and Financial Regulation) Act 1991. The initial charge is imposed when a provider is first registered or is registered after having been de-registered.1 It is $300 and is weighted according to the proportion of months remaining in the year when a provider is registered. The annual charge is paid by every registered provider at the commencement of each year.2 It is sliding scale from $300 to $5,000 depending on the number of enrolments in a previous year. Both the initial and annual registration charges are indexed to CPI.3

Main Provisions

Increasing the Charges

Schedule 1, items 1 to 6 amend the sliding scale for annual registration charges increasing the charges for each category. The amendments are as follows:

Student Enrolments Old Charges4 Current Charges5 New Charges % Increase

0 to 10 300 308 400 30%

11 to 50 750 777 1165 50%

51 to 200 1500 1541 2311 50%

201 to 400 2500 2568 3852 50%

401 or more 5000 5136 8000 56%

Item 7 inserts proposed section 5A which provides for amendment of these charges. The Governor-General must make a written instrument which must be tabled in Parliament. If it is approved by a resolution in each House of Parliament, the amended charges apply. The charges only apply to subsequent years but may discriminate among provider classes.

Items 8 and 9 adjust the indexation of annual charges. Generally, annual charges are indexed to CPI. However, if the annual charges are amended in a given year, the indexation provisions do not apply until subsequent years (proposed new section 7(1A)).

Education Services for Overseas Students (Registration Charges) Amendment Bill 2000 3

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.

The Principal Bill

Under the Principal Bill, proposed section 12 requires that providers pay the initial charge within 28 days of being notified of registration. Proposed section 23 requires that they pay the annual charge by the last business day in February of each year.

Concluding Comments

Proposed section 5A contains an unusual parliamentary review mechanism.6 Ordinarily, regulations and other disallowable instruments are valid until disallowed by a resolution in either House of Parliament. Proposed sub-section 5A(5) reverses this process, making the instruments invalid until approved by a resolution in both Houses of Parliament.

One possible reason for the apparently high threshold is the fact that the power to make instruments constitutes a 'Henry VIII clause'. Such clauses effectively empower delegated legislation, such as regulations and disallowable instruments, to amend Acts of Parliament. As such, they have been criticised on the basis that they vest an 'enormous amount of power in the executive government' which was 'capable of abuse'.7 The focus in proposed section 5A(5) on approval in both Houses of Parliament rather than disallowance in one arguably presents a formidable obstacle to abuse of the power to make regulations.

Another possible reason is the effect that the review process has on certainty. Generally, regulations once made are valid until they are disallowed. Thus, any existing rights, interests, obligations or liabilities which arose under the regulations are unaffected.8 This may pose difficulties for executive government where regulations are disallowed, remade and subsequently disallowed, creating an uneven patchwork of administrative regimes.9 The approach in proposed section 5A(5) virtually eliminates this possibility.

Endnotes

1 Section 6.

2 Section 5.

3 Section 7.

4 Registration Charges Act, sub-section 5(2).

5 Explanatory Memorandum, p. 8.

6 A similar construction appeared in the Telecommunications Act 1991 (section 409) and the Transport And Communication Legislation Amendment Act 1991 (section 47).

4 Education Services for Overseas Students (Registration Charges) Amendment Bill 2000

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.

7 Dennis Pearce and Stephen Argument, Delegated Legislation in Australia, 2nd Edition, Butterworths, Sydney, 1999, p. 15 paraphrasing a recommendation of the United Kingdom Parliament's Committee on Ministers' Powers in its Report, 1932, Cmd 4060.

8 Acts Interpretation Act 1901, s 50.

9 For example, a series of regulations were made under the Migration Act 1958 relating to liability of Australian residents for costs associated with migrant parents in Australia. They were largely disallowed, leaving a patchwork arrangement over a period of 5 years. See generally Migration Legislation Amendment (Parents and Other Measures) Bill 2000, Bills Digest No 200, 1999-2000, at http://www.aph.gov.au/library/pubs/bd/1999-2000/2000BD200.htm [27/10/00].