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

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1998-1999-2000

 

The Parliament of the Commonwealth of Australia

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

EDUCATION SERVICES FOR OVERSEAS STUDENTS (CONSEQUENTIAL AND TRANSITIONAL) BILL 2000

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

(Circulated by authority of the Minister for Education, Training and Youth Affairs the Hon Dr David Kemp MP)

 

 



 

 

OUTLINE

 

The purpose of this Bill is to repeal the Education Services for Overseas Students (Registration of Providers and Financial Regulation) Act 1991 (the old ESOS Act), and outline the introductory and transitional conditions for the implementation of the Education Services for Overseas Students Act 2000 (the new ESOS Act).

 

In particular, the Bill establishes transitional and consequential arrangements for the following items:

·            notification requirements for the starting day of obligations regarding information about accepted students, visa breaches and record keeping for registered providers;

·            carry-over requirements for accepted students and registered providers as the new ESOS Act is introduced;

·            national code compliance conditions;

·            amendments to the Migration Act 1958 to provide for appropriate exchange of information and to enable the making of regulations.

 

The old ESOS Act was introduced to establish key national elements for the regulation of the international education and training industry. The Act has been amended and extended since its introduction, increasing industry responsibility and further protecting Australia’s international reputation. As the industry develops and reforms are implemented, an even more effective framework for managing the industry is required.

 

The Education Services for Overseas Students (Consequential and Transitional) Bill 2000 (ESOS Consequential and Transitional Bill) is important in linking the new ESOS Act, the national code and the relevant provisions of the Migration Act 1958 . The ESOS Consequential and Transitional Bill ensures that new, transitional and carry-over conditions relating to education / training providers and overseas students alike, are clearly stipulated and unambiguous.

 

FINANCIAL IMPACT

 

The Bill will have no identifiable financial impact.



EDUCATION SERVICES FOR OVERSEAS STUDENTS (CONSEQUENTIAL AND TRANSITIONAL) BILL 2000

 

 

NOTES ON INDIVIDUAL CLAUSES

 

 

Clause 1          Short Title

 

The short title by which this Act may be cited is the Education Services for Overseas Students (Consequential and Transitional) Act 2000.

 

 

Clause 2          Commencement

 

This clause sets out the commencement date for the provisions of this Bill.

 

·         The clause provides for sections 1 and 2 to commence at the same time as the Education Services for Overseas Students Act 2000. on Royal Assent .

·         Schedule 4 contains amendments to the merits review provisions of the new ESOS Act. The commencement date for the amendments in Schedule 4 will ensure that the merits review provisions under the new ESOS Act refer to the Administrative Review Tribunal once that body replaces the Administrative Appeals Tribunal.

·         The remaining provisions of the Act commence on a date to be proclaimed.

 

 

Clause 3          Schedule(s)

 

Clause 3 provides that each Act specified in a Schedule is amended or repealed in accordance with the applicable item in the Schedule concerned.

 

 

Clause 4          Definitions

 

Clause 4 contains definitions of terms used in the Act.

 



SCHEDULE 1—REPEAL OF THE OLD ESOS ACT

 

 

Education Services for Overseas Students (Registration of Providers and Financia l R egulation ) Ac t 1991

 

 

 

Item 1 :    The whole of the Act

 

Clause 1                      The Whole of the Act

 

1. This item clause repeals the Education Services for Overseas Students (Registration of Providers and Financial Regulation Act) 1991.

 

 

Education Services for Overseas Students (Registration Charges Act) 199 7

 

Item 2 :    Section 4

 

This item omits the reference to the Education Services for Overseas Students (Registration of Providers and Financial Regulation Act) 1991 and replaces it with the Education Services for Overseas Students Act 2000



SCHEDULE 2—APPLICATION AND TRANSITIONAL

 

 

1. Application - starting day for obligations of registered providers

 

Item 1 :    Application —s tarting day for obligations of registered providers

 

Certain obligations will be imposed on registered providers by Part 3 of the new ESOS Act. Item   1 requires that the starting date for these obligations be published in the Gazette and that the starting date be at least 28 days after publication. Each registered provider must be notified in writing of the starting day.

 

This item also provides that the Gazette notice may prescribe give extra time for certain providers to comply with the requirements of section 21 of the new ESOS Act.

 

Item 2 :   Transitional registration

Transitional - registration

 

Clause 1

 

1. This item ensures that providers’ registrations will continue under the new ESOS Act as if the registration had been done for the same courses under the new ESOS Act. A registration that was suspended immediately before the commencement of the new ESOS Act will be suspended to the same extent u nder the new ESOS Act .

 

Item 3 :    Transitional national code

3. Transitional - national code

 

1. The new ESOS Act will set up a national code of practice to ensure nationally consistent standards for the registration and conduct of registered providers.

 

This item will ensure that existing registered providers have sufficient time to meet the national code’s requirements by providing for the power to prescribe extra time for providers to comply with the code’s requirements. .

 

Item 4:    Application—notified trust accounts and ESOS Assurance Fund

 

This item provides that requirements relating to the ESOS Assurance Fund apply to 2001 and later years, but that the Minister may publish a notice in the Gazette that the requirements apply to 2002 and later years. If such a notice is published in the Gazette notified trust account requirements continue to operate until 2002 as if those requirements had not been repealed by item 1 of Schedule 1. This item also provides that the notified trust account requirements under the old ESOS Act will continue to apply until the commencement of Part 5 of the new ESOS Act, regardless of whether Schedule 1 of this Act repeals the requirements earlier.

 

Item 5:    Transitional —money in notified trust accounts

 

Course money that was in a notified trust account immediately before the commencement of this item is no longer considered to be held on trust after the commencement of this item .

 

Item 6:    Transitional—r egulations

 

This item provides that the regulations made under the new ESOS Act may make provision s for the transition from the old ESOS Act to the new ESOS Act and about for transitional matters .

 



 

SCHEDULE 3—AMENDMENT OF THE MIGRATION ACT

 

Part 1—Disclosure of immigration information

AMENDMENTS TO THE MIGRATION ACT

Migration Act 1958

 

Item 1:    After subparagraph 488(2)(a)(v)

 

Item 1 amends section 488 of the Migration Act 1958 , (the Migration Act) which deals with ‘movement records’. This amendment is intended to ensure that the Department administering the Migration Act can provide arrival and departure information regarding student visa holders to the Department administering the Education Services for Overseas Students Act 2000 ("the new ESOS Act").

 

Subsection 488(1) of the Migration Act prohibits the reading, examination, reproduction, use or disclosure of "movement records" otherwise than in an accordance with an authority given under subsection 488(2). Movement records are defined in section 5 of the Migration Act as "information contained within a notified database". Section 489 of the Migration Act allows the Immigration Minister to gazette a database containing information in relation to the entry of persons into, and departure of persons from, Australia to be a notified data base. Currently only one such database, the movement records, has been notified.

 

Current paragraph 488(2)(a) provides that the Immigration Minister may authorise an officer (defined in subsection 5(1) of the Migration Act) to perform any of the actions prohibited by subsection 488(1), for the purposes of the laws and activities listed in subparagraphs 488(2)(i) to (v). An officer so authorised may then read, examine, reproduce, use or disclose movement records for the purpose of the specified law or activity.

 

Item 1 inserts new subparagraphs 488(2)(a)(vi) and (vii) to provide for additional laws for the purposes of which the Immigration Minister may authorise an officer to deal with movement records in ways otherwise prohibited by subsection 488(1):

·            the new ESOS Act (new subparagraph 488(2)(a)(vi)); and

·            prescribed Commonwealth, State or Territory legislation (new subparagraph 488(2)(a)(vii))

 

 

Item 2:    At the end of subsection 488(2)

 

Current paragraph 488(2)(b) provides that the Minister may authorise certain officers or employees of agencies other than Immigration to read, examine, reproduce, use or disclose movement records for the purposes of specified laws or activities.

 

Item 2 inserts new paragraphs 488(2)(f) and (g).  New paragraph 488(2)(f) provides that the Minister may authorise an employee of the Department whose Minister administers the new ESOS Act to perform for the purposes of that Act one or more of those actions. This amendment is intended to ensure that arrival and departure information on student visa holders can be used by the Department administering the new ESOS Act for the purposes of that Act.

 

New paragraph 488(2)(g) provides that the Minister may authorise a prescribed employee of a prescribed agency of the Commonwealth, or of a State or Territory, to perform for the purposes of prescribed legislation one or more of those actions.

 

Item 3:    After section 488

 

Item 3 inserts new section 488A, which deals with giving information to other relevant agencies.

 

New subsection 488A(1) provides that for certain purposes the Secretary of the Department administering the Migration Act may give information obtained or received for the purposes of that Act to an agency of the Commonwealth, or of a State or Territory, that is responsible for or otherwise concerned with the regulation of providers.

 

(New subsection 488A(3) provides that in this section, "provider" has the same meaning as in the new ESOS Act).

 

The purposes for which the Secretary may give information to the above agencies:

·            assisting with the regulation of providers;

·            promoting compliance with the conditions of a particular student visa or visas, or of student visas generally;

 

New subsection 488A(2) clarifies that subsection (1) does not override section 488 which prohibits the disclosure of movement records except in limited circumstances.

 

 

Part 2—Consequential amendment

 

Item 4:    At the end of subsection 504(1)

 

This item inserts new paragraph 504(1)(l) into section 504 of the Migration Act. The new paragraph is intended to allow the Governor-General to make regulations, under the Migration Act, making provision for matters the new ESOS Act requires or permits to be prescribed in those regulations.

 

For example, new paragraph 96(2)(d) of the new ESOS Act provides that, in considering whether to issue an Immigration Minister's suspension certificate, the Immigration Minister may have regard to, among other things, ‘any other matter set out in regulations made for the purposes of this paragraph under the Migration Act 1958 ’. New paragraph 504(1)(l) will ensure that the Migration Regulations 1994 can provide for these matters as required.



SCHEDULE 4—CHANGED ADMINISTRATIVE LAW ARRANGEMENTS

 

 

Education Services for Overseas Students Act 2000

 

Items 1 to 6

 

Items 1 to 3 make amendments to provisions of the new ESOS Act, replacing references to the Administrative Appeals Tribunal, the Administrative Appeals Tribunal Act 1975 (the AAT Act) and a provision of the AAT Act that will be required following the passage of the Administrative Review Tribunal Act (ART Act).

 

Item 4 replaces a section reference to the AAT Act with one to the ART Act.

 

Item 5 replaces a term used in relation to the AAT Act with its equivalent from the ART Act.

 

Item 6 adds a note at the end of subsection 176(2) to the effect that the Administrative Review Tribunal will be established by the ART Act 2000 or the ART Act 2001, depending on when the ART Act passes through Parliament.