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Immigration (Education) Amendment Bill 2010

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2008-2009-2010

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

IMMIGRATION (EDUCATION) AMENDMENT BILL 2010

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Immigration and Citizenship,

Senator the Hon. Chris Evans)

 

 

 

 

IMMIGRATION (EDUCATION) AMENDMENT BILL 2010

 

OUTLINE

 

The purpose of the Immigration (Education) Amendment Bill 2010 (“the Bill”) is to amend the Immigration (Education) Act 1971 (“the Act”) to implement the new Adult Migrant English Program (AMEP) Business Model, which forms part of the Government’s broader settlement framework.  The AMEP is the program through which English language tuition is delivered under the Act.  The new AMEP Business Model provides a greater focus on client outcomes with improved program design, as well as improved program delivery and administration.

 

In particular, the Bill proposes to amend the Act to:

 

·          remove annual administration fees for English courses;

·          provide that New Zealand citizens who hold a special category visa may no longer be provided with English courses under the Act;

·          extend the period for registering in an English course from three months to six months after a person’s arrival in Australia;

·          introduce a five-year timeframe to complete an English course, with an extension for clients with compassionate and compelling circumstances;

·          simplify provisions relating to eligibility for English courses, including ensuring all clients provided with English courses in Australia are subject to the same eligibility restrictions;

·          allow the Secretary to extend registration, commencement and completion timeframes for English courses retrospectively; and

·          update the legislation to reflect current delivery arrangements.

 

Financial impact statement

 

The reduction in revenue arising from the removal of the annual administration fee for English courses is less than $10,000 per annum, as less than one percent of clients are charged this fee.  The removal of this fee will have negligible impact on the Commonwealth’s fiscal balance.  



 

IMMIGRATION (EDUCATION) AMENDMENT BILL 2010

 

NOTES ON INDIVIDUAL CLAUSES

 

Clause 1          Short Title

 

1.                   Clause 1 provides that the short title by which the Act may be cited is the Immigration (Education) Amendment Act 2010 .

 

Clause 2          Commencement

 

2.                   Clause 2 provides that the Immigration (Education) Amendment Act 2010 commences on 1 January 2011.

 

Clause 3          Schedule(s)

 

3.                   Clause 3 provides that each Act that is specified in a Schedule to the Immigration (Education) Amendment Act 2010 is amended or repealed as set out in the applicable items in the Schedule concerned.  In addition, any other item in a Schedule to the Immigration (Education) Amendment Act 2010 has effect according to its terms.

 



 

SCHEDULE 1 - Amendments etc.

 

Part 1 - Amendments

 

Immigration (Education) Act 1971

 

Item 1                         Before section 1

 

1.       This item inserts the heading “Part 1 - Preliminary” before section 1 of the Immigration (Education) Act 1971 (the Act). 

 

2.       This item, together with the headings for Parts 2, 3, 4 and 5 of the Act inserted by items 14 and 17, creates a new structure for the Act to clarify the subject-matter of each part of the Act. 

 

3.       This item clarifies that Part 1 deals with preliminary matters.  In particular, section 3 included within this Part sets out the definitions for the Act.

 

Item 2               Section 3

 

4.       This item inserts “(1)” before the words “In this Act” in section 3 of the Act.

 

5.       This item renumbers current section 3 as subsection 3(1).  This item is consequential to item 13, which inserts new subsections 3(2) and (3).

 

Item 3               Section 3 (definition of approved course )

 

6.       This item omits the words “or a citizenship course provided under section 4” and substitutes “provided under section 4 or a citizenship course provided under section 4E” in the definition of “approved course” in section 3 of the Act.

 

7.       This item is consequential to item 14, which omits current section 4 of the Act and inserts (among other provisions) new sections 4 and 4E.  Current section 4 of the Act provides that the Minister may arrange for English courses and citizenship courses to be provided to certain categories of person.  The amendments made by item 14 separate the provision of English courses from the provision of citizenship courses, with new    section 4 of the Act allowing the Minister to provide, or arrange the provision of, English courses and new section 4E of the Act allowing the Minister to arrange for the provision of citizenship courses.

 

8.       This item preserves the effect of the current definition of “approved course” by specifying that it means an English course provided under section 4 of the Act or a citizenship course provided under section 4E of the Act.

 

Item 4             Section 3 (definition of approved English course )

 

9.       This item omits the words “in accordance with section 4 or 4B” and substitutes “under section 4” in the definition of “approved English course” in section 3 of the Act. 

 

10.   The current definition of “approved English course” is an English course provided in accordance with section 4 or 4B.  Current section 4 of the Act provides in part that the Minister may arrange for English courses to be provided to certain categories of person (including holders of permanent visas and specified classes of temporary visa).  Current section 4B of the Act provides that the Minister must arrange for English courses to be provided to certain permanent visa holders who are at least 18 years of age. 

 

11.   This item amends the definition of “approved English course” to mean an English course provided in accordance with section 4.  This item is consequential to item 14, which omits (among other provisions) current sections 4 and 4B and simplifies the Act by ensuring that new section 4 is the only provision to give the Minister the power to provide, or arrange the provision of, an English course. 

 

12.   The term “approved English course” is used in new section 4B which provides that the Minister must provide, or arrange the provision of, an approved English course to certain eligible persons that hold a permanent visa and are at least 18 years of age.  The effect of the definition is that the English course that must be provided to this category of person is an English course that the Minister has provided, or arranged to be provided, under section 4 of the Act.

 

13.   The term is also used in the definition of “functional English” as amended by item 7, and in new subsection 4C(2), which is inserted by item 14 and sets out the time limits for registering in or starting an approved English course.  

 

Item 5             Section 3 (definition of capital equipment of an educational nature )

 

14.   This item repeals the definition of “capital equipment of an educational nature” and substitutes a new definition for “capital equipment of an educational nature” in section 3 of the Act.

 

15.   The new definition provides that “capital equipment of an educational nature” includes audiovisual equipment, computers and specialised electronic equipment, but does not include any kind of building.

 

16.   The new definition differs from the current definition of “capital equipment of an educational nature” in two respects.  Firstly, the definition is no longer expressed to include “tape recording and playing equipment” and instead refers to “audiovisual equipment, computers and specialised electronic equipment”.  Secondly, the definition is no longer expressed to include “portable class-rooms” and instead specifically excludes any kind of building.

  

17.    The term “capital equipment of an educational nature” is used in paragraph 9(2)(c) and subsection 9(3) of the Act as amended by items 15 and 16.  New paragraph 9(2)(c) provides, in summary, that an arrangement under section 4 or 4E for the provision of approved courses may make provision for, or in relation to, the payment by the Commonwealth of the cost of capital equipment of an educational nature to be used in the courses.  New subsection 9(3) provides, in summary, that an arrangement under section 4 or 4E for the provision of approved courses may make provision for the Commonwealth to supply to the course provider, whether as a gift or otherwise, capital equipment of an educational nature to be used in the courses.  

 

18.   The purpose of this item is to update the definition of “capital equipment of an educational nature” to reflect technological advancements in equipment used for educational purposes.  For example, tape recording equipment is no longer in use.  The ability of the Commonwealth to pay the costs of or supply portable buildings is removed because supplying portable buildings would divert considerable funds from the provision of English language tuition.

 

Item 6               Section 3

 

19.   This item inserts a definition for “eligible” in section 3 of the Act.

 

20.   This item provides that “eligible” has the meaning given by section 4A.  New section 4A is inserted by item 14 and provides, in brief, that a person is eligible for the purposes of the Act if he or she is in Australia, is a type of person referred to in paragraph 4A(a) (which includes holders of permanent visas and specified classes of temporary visa), does not have functional English and is not ineligible under new section 4C or 4D.

 

21.   The term “eligible” is used in new section 4 to describe the categories of person for whom the Minister may provide, or arrange the provision of, English courses, and in new section 4B to describe the categories of person for whom the Minister must provide, or arrange the provision of, tuition in an approved English course.  Sections 4C and 4D, which are inserted by item 14, describe the events that result in a person being ineligible.

 

Item 7               Section 3 (definition of functional English)

 

22.   This item repeals the definition of “functional English” and substitutes with a new definition of “functional English” in section 3 of the Act. 

 

23.   This item 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.  New subsection 3(2) is inserted in the Act by item 13.

 

24.   “Functional English” is currently defined in section 3 of the Act as having the same meaning as in the Migration Act 1958 (the Migration Act).  Section 5(2) of the Migration Act provides, in part, that a person has “functional English” at a particular time if the person provides the Minister with prescribed evidence of the person’s English language proficiency.  One of the prescribed types of evidence in regulation 5.17 of the Migration Regulations 1994 is that the person has been assessed as having functional English by the provider of an approved English course.  A number of other types of evidence are prescribed that are not relevant to the assessment of a person’s English under the Act.

 

25.     The purpose of the new definition is to provide for a meaning of “functional English” that is clear and relevant to the Act.  It provides for a person to be assessed by the provider of an approved English course as having “functional English”.  In conjunction with new subsections 3(2) and (3) inserted by item 13, the Minister may, in a legislative instrument, specify the procedures or standards that this assessment must be made in accordance with .  This allows for transparency of the procedures that the provider of an approved English course must use to assess a person’s English.  It also allows the meaning of “functional English” to be further clarified by linking the term to a particular standard of English language ability (which it is intended will be an internationally recognised standard). 

 

26.   The term “functional English” is used in new section 4A inserted by item 14 to provide that a person is “eligible” for the purposes of the Act if he or she does not have functional English.  New section 4 provides that the Minister may provide, or arrange the provision of, English courses to eligible persons, while they are eligible, and new section 4B provides that the Minister must provide, or arrange the provision of, an approved English course to an eligible person, while he or she is eligible, if the person meets certain criteria.

 

Item 8               Section 3 (definition of independent school)

 

27.   This item repeals the definition of “independent school” from section 3 of the Act.

 

28.   Item 15 omits all references to “independent school” from subsections 9(2) and (3) of the Act, with the consequence that the term no longer needs to be defined. 

 

Item 9               Section 3 (definition of school authority)

 

29.   This item repeals the definition of “school authority” from section 3 of the Act.

 

30.   Items 15 and 16 omit all references to “school authority” from subsections 9(2) and (3) from the Act, with the consequence that the term no longer needs to be defined. 

 

Item 10             Section 3

 

31.   This item inserts a definition of “Secretary” in section 3 of the Act.

 

32.   The term “Secretary” is currently used in the Act but is not defined.  This item clarifies that “Secretary” means the Secretary of the Department.  Section 19A of the Acts Interpretation Act 1901 provides in part that, unless the contrary intention appears, the expression “the Department” means the Department of the State of the Commonwealth that deals with the matters to which the provision relates and that is administered by the Minister or Ministers for the time being administering the provision.

 

Item 11             Section 3 (definition of teaching and learning materials )

 

33.   This item inserts “materials in digital form, educational software,” after “audio materials,” in section 3 of the Act.

 

34.   The term “teaching and learning materials” is currently defined to include printed materials, audio materials, visual aids and audiovisual aids.

 

35.   This item updates the definition to include materials in digital form and educational software, in addition to the existing materials.  This reflects technological advancements in material used for educational purposes.

 

Item 12             Section 3

 

36.   This item inserts a definition for “visa commencement day” into section 3 of the Act.

 

37.   This item provides that “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;

·          the first day the person was in Australia on or after the day when a temporary visa of a class mentioned in subparagraph 4A(a)(ii) (a “specified temporary visa”) held by the person came into effect.

 

38.   The term “visa commencement date” is currently defined in section 4D(4) of the Act, which is repealed by item 14.  The meaning of the term “relevant visa” in the current definition of “visa commencement date” is currently unclear.  This item clarifies the definition of “visa commencement day” by referring to the first day the person was in Australia on or after the day when a permanent visa or a specified temporary visa held by the person came into effect.      

                                           

39.   The term “visa commencement day” is used in new section 4C inserted by item 14, which provides for the time limits for registering in and starting an approved English course, and new section 4D inserted by item 14, which provides for a five-year time limit on eligibility for an approved English course.  Specifically, the term “visa commencement day” is used in paragraphs 4C(2)(a) and (b) and subsection 4D(2) to specify when time starts to run for the purpose of the time limits. 

 

40.   The effect of this item is that time starts to run for the purpose of the time limits in paragraphs 4C(2)(a) and (b) and subsection 4D(2) from the first day that a person was in Australia as the holder of a permanent visa or a specified temporary visa.  The intention is that if a person leaves Australia after that date, time will continue to run during the person’s absence from Australia.  If the person re-enters Australia, whether as the holder of the same visa or a different visa, the visa commencement day will be the day the person first entered Australia as the holder of the first permanent visa or specified temporary visa.

 

Item 13             At the end of section 3

 

41.   This item inserts new subsections 3(2) and (3), relating to “functional English”, into section 3 of the Act. 

 

42.   New subsection 3(2) provides that the Minister may, by legislative instrument, specify procedures or standards for the purposes of the definition of “functional English” in subsection 3(1).  Item 7 amends the definition of “functional English” in        subsection 3(1).

 

43.   This amendment allows the Minister to specify, by legislative instrument, the procedures or standards that are relevant to the approved English course provider’s determination as to whether a person has “functional English”.  This allows for transparency of the procedures that the provider of an approved English course must use to assess a person’s English.  It also allows the meaning of “functional English” to be further clarified by linking the term to a particular standard of English language ability (which it is intended will be an internationally recognised standard). 

 

44.   New subsection 3(3) provides that an instrument made under 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 at a particular time, or as in force or existing from time to time.

 

45.   Although it is possible that the definition of the internationally recognised standard may change from time to time, this standard is widely used in second language learning and any changes to the standard would be implemented across the language learning sector.  Linking the standard of “functional English” to an internationally recognised standard provides transparency and certainty as to the standard that providers of approved English courses must use to assess a person’s English.

 

Item 14             Sections 4 to 5

 

46.   This item repeals current sections 4 to 5 of the Act and substitutes new “Part 2 - English courses”, which includes new sections 4 to 4D; new Part 3 “Citizenship courses”, which includes new section 4E; and new Part 4 “Implementation”, which includes new section 5 (as well as existing sections 7 to 9A of the Act, with section 9 amended by items 15 and 16).

 

47.   This item creates a new structure for the provision of English courses and citizenship courses under the Act and makes various amendments as described below.

 

Removal of section 4A of the Act (fees for English courses)

 

48.   This item omits current section 4A from the Act.

 

49.   Current section 4A of the Act allows the regulations to provide for the charging and recovery of fees, not exceeding the applicable fee limit per year per student, in respect of English courses provided in accordance with section 4 of the Act.  Subsection 4A(2) provides, in part, that the regulations must exempt from any fees persons who, at the time of enrolment in the English course, are the holders of a health care card or are registered job seekers.  Subsection 4A(3) provides, in part, that the regulations may provide for the refund, reduction or waiving of fees in cases identified in the regulations. 

 

50.   Section 4A is omitted because less than one percent of participants in English courses delivered under the Act are charged the fee.  Those who are charged the fee are 16 to 17 year old students who cannot be accommodated in the school system upon their arrival in Australia, and New Zealand citizens who hold a special category visa.  The small number of participants who are liable for the payment of the fee has resulted in the costs associated with collecting the fee exceeding the sum of fees collected.

 

51.   The saving provision in item 27 provides that paragraph 4A(3)(b) (relating to the refund, reduction or waiver of fees) and regulations made for the purposes of that paragraph, continue to apply at and after the commencement time (1 January 2011) in relation to fees charged before the commencement time.

 

Insertion of heading “Part 2 - English Courses”

 

52.   This amendment inserts a new heading “Part 2 - English courses” before section 4 of the Act. 

 

53.   This amendment indicates that Part 2 of the Act deals with English courses.  This amendment, together with the headings for Part 3 and 4 inserted by this item and the headings for Part 1 and 5 inserted by items 1 and 17, creates a new structure for the Act to clarify the subject-matter of each part of the Act.

 

Section 4 - English courses

 

54.   This amendment inserts new section 4 into the Act.

 

55.   New section 4 provides that the Minister may provide, or arrange the provision of, English courses to:

·          eligible persons, while they are eligible; or

·          persons who are outside Australia and have applied for a permanent visa.

 

56.   Current section 4 provides that the Minister may arrange for English courses and citizenship courses to be provided outside Australia for persons intending to migrate to Australia, and to certain categories of person in Australia or in the Territory of Cocos (Keeling) Islands or the Territory of Christmas Island. 

 

57.   This amendment firstly ensures that the Minister may only provide, or arrange the provision of, English courses to persons who are outside Australia if they have applied for a permanent visa.  The purpose of this amendment is to clarify the provision and provide for greater certainty for potential clients and decision-makers.  The fact that a person has applied for a permanent visa demonstrates an intention to migrate to Australia and can be objectively ascertained, while the current requirement that a person intend to migrate to Australia involves a subjective assessment.

 

58.   Secondly, this amendment, together with new section 4E inserted by this item, separates the provision of English courses from the provision of citizenship courses.  This is to ensure that the time limits in new section 4C for registering in and starting an approved English course, and the five-year time limit in new section 4D on eligibility for approved English courses, do not apply in relation to citizenship courses.  (Section 3, as amended by item 4, defines “approved English course” as an English course provided in accordance with section 4 of the Act.)

 

59.   The categories of person who may be provided with English courses in Australia are set out in new section 4A, which defines the meaning of “eligible” for the purposes of the Act.

 

Section 4A - Eligibility for English courses

 

60.   This amendment inserts new section 4A into the Act.

 

61.   New section 4A provides that a person is “eligible” for the purposes of the Act if he or she:

·          is in Australia and:

o    holds a permanent visa; or

o    holds a temporary visa of a class specified in a legislative instrument made by the Minister for the purposes of this paragraph; or

o    previously held a permanent entry permit or a permanent visa and has become an Australian citizen; or

o    is aged under 18 years and has at least one parent who has held or holds a permanent entry permit or a permanent visa; and

·          does not have functional English; and

·          is not ineligible under section 4C or 4D.

 

62.   New section 4A lists the categories of person who may be provided with English courses under section 4, if they do not have functional English and are not ineligible under section 4C or 4D. 

 

63.   The categories of person who are “eligible” under new section 4A of the Act differ from the categories of person who may be provided with English courses under current section 4 of the Act in the following ways. 

 

64.   Firstly, New Zealand citizens who hold a special category visa (which are provided for in section 32 of the Migration Act) may be provided with English courses under current section 4 of the Act but are not eligible under new section 4A of the Act.  Eligibility for New Zealand citizens who hold a special category visa has been removed because in general New Zealand citizens would have had access to English language tuition programs in New Zealand. 

 

65.   Secondly, the classes of temporary visa that a person must hold to be “eligible” for the purposes of the Act are specified in a legislative instrument made by the Minister, rather than by notice published in the Gazette.  This amendment is to update the Act following commencement of the Legislative Instruments Act 2003 , which provides for instruments to be registered on the Federal Register of Legislative Instruments (FRLI) rather than published in the Gazette.

 

66.   New section 4A also removes the reference to the Territory of Cocos (Keeling) Islands and the Territory of Christmas Island that is included in current section 4 of the Act.  Paragraph 17(a) of the Acts Interpretation Act 1901 provides that “Australia”, when used in a geographical sense, includes the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands.  It is intended that the term “Australia” in new section 4A includes the Territory of Cocos (Keeling) Islands and the Territory of Christmas Island, with the effect that the Minister may provide, or arrange the provision of, English courses to people in these territories if they meet the eligibility criteria in section 4A.

 

67.   New section 4A also provides that a person is “eligible” if they do not have functional English.  This amendment reflects current paragraph 4C(c) of the Act, which provides that the Commonwealth is obliged to provide 510 hours of tuition in an approved English course if the person does not have functional English at the time of making the application. 

 

68.   In conjunction with the amendment to the definition of “functional English” made by item 7, this amendment also reflects current paragraph 4D(1)(a).  Current paragraph 4D(1)(a) provides that the obligation of the Commonwealth to provide 510 hours of tuition under section 4C ceases if the provider of an approved English course determines, in writing, in accordance with procedures approved in writing by the Secretary, that the person has functional English.  Similarly, item 7 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.

 

69.   This amendment clarifies that tuition may not be provided to a person under section 4 of the Act if the person has functional English, whether or not the person is entitled to up to 510 hours of tuition in an approved English course under new section 4B of the Act.  If a person is assessed as reaching the level of functional English, the Minister may not provide English courses to the person.  This is because the purpose of providing English courses under the Act is to give a person the opportunity to reach the level of functional English, which targets funding to those who need it most.

 

70.   The amendment also provides that a person may not be provided with tuition under section 4 of the Act if the person is ineligible under section 4C or 4D of the Act.  New section 4C is inserted by this item and provides for the time limits for registering in and starting an approved English course.  New section 4D is inserted by this item and provides for a five-year time limit on eligibility for approved English courses.  The effect of this amendment is that the time limits on registration and commencement in current section 4D of the Act, which limit the Commonwealth’s obligation to provide 510 hours of tuition in an approved English course, apply in their amended form to all persons provided with English courses under the Act. 

 

71.   Under the current Act, a person who is entitled to receive up to 510 hours of tuition in approved English courses under current section 4C of the Act is subject to the time limits for registration and commencement set out in current section 4D of the Act.  To ensure that all clients are treated equitably, these time limits have been applied as a matter of policy to people who may be provided with English courses under current section 4 of the Act.  The purpose of providing in the Act for these time limits, as amended by this item, to apply to all persons provided with English courses under the Act is to provide certainty for clients and providers of approved English courses.  It will also provide an incentive to clients to access English language tuition early in their settlement period.

 

Section 4B - Obligation to provide 510 hours of tuition in an English course

 

72.   This amendment inserts new section 4B into the Act.

 

73.    New subsection 4B(1) provides that the Minister must provide, or arrange the provision of, tuition in an approved English course to an eligible person, while he or she is eligible, if the person:

·          holds a permanent visa; and

·          was aged at least 18 years on the first day the person was in Australia on or after the day when the permanent visa came into effect; and

·          has paid, or is exempt from paying, visa application charge under section 45A of the Migration Act for the permanent visa; and

·          did not, at any time before the permanent visa came into effect, hold another permanent visa while in Australia; and

·          is not excluded from the application of this section by the regulations.

 

74.   An “approved English course” is defined in subsection 3(1), as amended by item 4, as an English course provided in accordance with section 4.  New section 4A inserted by this item provides for the circumstances in which a person is “eligible” for the purposes of the Act.

 

75.   New subsection 4B(2) provides that subsection 4B(1) stops applying to a person when he or she has had 510 hours of tuition in approved English courses.

 

76.   New subsection 4B(3) clarifies that section 4B does not limit section 4.

 

77.   New section 4B is similar to current section 4B of the Act, which provides that the Minister is to arrange for English courses to be provided to certain categories of person.  It is also similar to current section 4C of the Act, which provides that the Commonwealth is obliged to provide, or arrange the provision of, 510 hours of tuition in an approved English course to certain categories of person (which are similar to those listed in current section 4B).  

 

78.   These sections are simplified and consolidated into new section 4B, which in conjunction with section 4, both allows the Minister to provide, or arrange the provision of, English courses, and further provides that tuition in such an English course must be provided to persons who meet the criteria in new paragraphs 4B(1)(a) to (e). 

 

79.   New section 4B also differs from existing sections 4B and 4C of the Act in the following ways.

 

80.   Firstly, while current section 4C provides that the Commonwealth is obliged to provide, or arrange the provision of, 510 hours of tuition in an approved English course to a person who satisfies paragraphs 4C(a) to (f), new section 4A provides that the Minister is responsible for providing, or arranging the provision of, 510 hours of tuition.  This reflects the current situation whereby the Minister fulfils the obligation on behalf of the Commonwealth.

 

81.   Secondly, new subsection 4B(2) provides that the obligation of the Minister to provide tuition in an approved English course stops applying to a person when he or she has had 510 hours of tuition in approved English courses.  This is to ensure that hours of tuition in an approved English course provided to a person under section 4 contribute towards the 510 hours to which a person may be entitled under new section 4B.  For example, if a person has been provided with 510 hours as the holder of a class of temporary visa specified by the Minister in a legislative instrument under new section 4, that person will not be entitled to receive another 510 hours under new section 4B as a permanent visa holder. 

 

82.   Thirdly, the categories of person who the Minister must provide with tuition under new section 4B differ from the categories of person to whom the Commonwealth is obliged to provide with tuition under current section 4C of the Act as follows.

 

83.   New paragraph 4B(1)(a) clarifies that the person must hold a permanent visa to be entitled to the tuition.  Although current paragraph 4C(a) provides that the person must have applied for a permanent visa, current paragraph 4C(b) implies that the person must hold the permanent visa to be entitled to tuition because the person must be at least 18 “at the time the permanent visa came into force”.  New paragraph 4A(a) explicitly articulates that only holders of permanent visas will be entitled to up to 510 hours of tuition in an approved English course.

 

84.   New paragraph 4B(1)(b) provides that the person must be aged at least 18 years on the first day the person was in Australia on or after the day when the permanent visa came into effect.  Current paragraph 4C(b) provides that the person must be at least 18 at the time the permanent visa came into force.  The purpose of this amendment is to ensure that the obligation to provide 510 hours of tuition in an approved English course will apply to a person who is outside Australia at the time the permanent visa is granted and turns 18 between the time that the visa is granted and the person enters Australia.

 

85.   New paragraph 4B(1)(d) provides that the person must not, at any time before the person’s permanent visa came into effect, have held another permanent visa while in Australia.  Current paragraph 4C(1)(f) provides that the person must not have previously been entitled under the Act to 510 hours of tuition in an approved English course.  Generally a person would have previously been entitled to receive tuition if they were over 18 and held a permanent visa in Australia.  The purpose of new paragraph 4B(1)(d) is to provide greater clarity and certainty as to the circumstances in which the obligation to provide 510 hours of tuition will apply to a person.  

 

Section 4C - Ineligibility for English courses - time limits for registration or commencement

 

86.   This amendment inserts new section 4C into the Act.

 

87.    New section 4C provides that a person stops being eligible if the person does not meet certain timeframes for registering with the provider of an approved English course or starting an approved English course.  New section 4C further provides for the Secretary to extend the timeframes if the person applies to the Secretary for an extension either before or after the end of the timeframes.

 

88.   New section 4C replaces current section 4D of the Act, which in summary provides for the circumstances in which the obligation of the Commonwealth to a person under section 4C ceases and for the circumstances in which the Secretary may determine that the obligation is not to cease, or is to cease only at a later date.  Section 4C differs from current section 4D in a number of respects as described below.

 

Scope

 

89.   New subsection 4C(1) provides that section 4C applies to a person who would (apart from section 4C) be eligible, if:

·          he or she has ever held a permanent visa; or

·          he or she has ever held a temporary visa of a class specified under subparagraph 4A(a)(ii).

 

90.   The term “eligible” is defined in subsection 3(1) of the Act as amended by item 6.  New section 4A provides for the circumstances in which a person is “eligible” for the purposes of the Act, including that a person must not be ineligible under section 4C or 4D.

 

91.   New subsection 4C(1) ensures that all persons who have ever held a permanent visa or a temporary visa of a class specified under subparagraph 4A(a)(ii), who may be provided with English courses under new section 4, are subject to the timeframes in section 4C for registering with a provider of an approved English course and for starting an approved English course.  Currently, only permanent visa holders who are entitled to receive up to 510 hours of tuition in an approved English course under current section 4C of the Act are subject to the restrictions set out in current section 4D of the Act.  The purpose of this amendment is to ensure that the time limits are applied consistently to all persons receiving tuition in an approved English course under the Act.

 

92.   The time limits do not apply to persons listed in new subparagraph 4A(a)(iii) or (iv) of the Act who have never held a permanent visa or a temporary visa of a class specified under subparagraph 4A(a)(ii).  Subparagraphs 4A(a)(iii) and (iv) refer to:

 

·          persons who previously held a permanent entry permit or a permanent visa and have become an Australian citizen; and

·          persons aged under 18 years who have at least one parent who has held or holds a permanent entry permit or a permanent visa. 

 

Permanent entry permits were abolished in 1994 and, in relation to subparagraph 4A(a)(iv),  persons aged under 18 years would usually hold a permanent visa in their own right if their parent held or holds a permanent visa.  For this reason, it is very rare that such a person would be provided with tuition under the Act.  Given that the ability to provide English courses under section 4 of the Act is discretionary in nature, and to avoid unnecessarily complex legislation, the Act does not apply the time limits to this small group of people.

 

Time limits

 

93.   New subsection 4C(2) provides that a person stops being eligible:

·          if he or she fails to register with the provider of an approved English course within:

o    if he or she was aged under 18 years on his or her visa commencement day - the period of 12 months starting on that day; or

o    if he or she was aged 18 years or over on his or her visa commencement day - the period of 6 months starting that day; or

·          if he or she fails to start an approved English course within the period of 12 months starting on his or her visa commencement day.

 

94.   This provision reflects the current registration and commencement timeframes prescribed in paragraphs 4D(1)(b) and (c) of the Act, with the following differences.

 

95.   Current paragraph 4D(1)(b) provides that the obligation to provide English language tuition under section 4C will cease if the person fails to register with the provider of an approved English course within three months starting on the person’s visa commencement date. 

 

96.   New paragraph 4C(2)(a) provides that a person stops being eligible if he or she fails to register with the provider of an approved English course within the period of six months starting on his or her visa commencement day.  “Visa commencement day” is defined in subsection 3(1) as amended by item 12.  The time limit on registration is extended to six months for people aged 18 years or over to provide greater flexibility for people early in their period of settlement in Australia.  The new provision also ensures that all persons aged 18 years or over who may be provided with English courses under new section 4 of the Act (including both permanent visa holders and temporary visa holders) must register with the provider of an approved English course within six months.

 

97.   The new provision allows people aged under 18 years to register with the provider of an approved English course within 12 months of the person’s visa commencement day, to implement the policy announced in the 2009-10 Budget that youth aged 15 to 17 years old who drop out of school within the first 12 months of arriving in Australia will be provided with English courses under new section 4 of the Act.

 

98.   Current paragraph 4D(1)(c) provides that the obligation to provide English language tuition under section 4C will cease if the person fails to commence an approved English course within the period of 12 months starting on the visa commencement date. 

 

99.   New paragraph 4C(1)(b) provides that a person stops being eligible if she or she fails to start an approved English course within the period of 12 months starting on his or her visa commencement day.  The new provision ensures that all persons who may be provided with English courses under new section 4 of the Act (including both permanent visa holders and temporary visa holders of any age) must start an approved English course within 12 months.

 

Extension of Time

 

100.                      New subsection 4C(3) provides that a person may apply to the Secretary for an extension of the six or 12 month registration timeframe or the 12 month commencement timeframe. 

 

101.                      New subsection 4C(4) provides that an application to extend the six or 12 month registration timeframe or the 12 month commencement timeframe under subsection 4C(3) must be made in the manner, and within the period, prescribed by the regulations and, subject to compliance with those regulations, may be made before or after the end of the 6 or 12 month registration timeframe or the 12 month commencement timeframe.

 

102.                      New subsection 4C(5) provides that on an application under section 4C, if the Secretary is satisfied that it was, or would be, unreasonable for the applicant to stop being eligible under subsection 4C(2), the Secretary may extend the six month registration timeframe or the 12 month commencement timeframe by a specified period.

 

103.                      New subsections 4C(3) to (5) reflect current subsection 4D(2), which provides that if the obligation to a person would cease at a particular date under subsection 4D(1), and the Secretary is satisfied that it would be unreasonable for the obligation to so cease, the Secretary may, in writing, determine that the obligation is not to cease, or is to cease only at a later date.  The amendments differ from current subsection 4D(2) in the following ways.

 

104.                      Firstly, the amendments provide that the person must make an application for extension of the timeframes in the manner, and within the period, prescribed by the regulations.  The purpose of this amendment is to provide structure to the process for extending the timeframes and to make this process more transparent.

 

105.                      Secondly, the amendments specify that an application for an extension of the timeframes may be made before or after the timeframes have ended.  This amendment is made because the majority of people who seek an extension of the timeframes for registration and commencement make contact with the provider of an approved English course after the timeframes have ended and it is intended that these people have the opportunity to apply for an extension. 

 

106.                      Thirdly, the amendments provide that if the Secretary decides to extend the six or 12 month timeframe for registration or the 12 month timeframe for commencement, each of those timeframes must be extended by a specified period.  This is different to current subsection 4D(2) which allows the Secretary to determine either that the obligation is not to cease (at all) or is to cease only at a later date.  This amendment is made because the intention is that a date for registration or commencement will be specified in all circumstances, to give certainty to the person granted the extension and to decision-makers.

 

107.                      Finally, as in current section 4D, the Act does not require the Secretary to notify the applicant that the timeframe has been extended.  This requirement is not in the Act because in practice, the notification is provided in writing to the provider of the approved English course and is communicated orally to the applicant, using an interpreter if necessary.  Where the Secretary has decided to extend the registration timeframe, the person would usually register in an approved English course at that time.  Where the Secretary has decided not to extend a timeframe, a follow-up letter will be sent to the applicant confirming the details of the decision.

 

108.                      New subsection 4C(6) provides that in making a decision to extend a period under subsection 4C(5), the Secretary must have regard to the matters prescribed by the regulations and must not have regard to any other matter. 

 

109.                      This amendment reflects current subsection 4D(3), but does not include current paragraph 4D(3)(a) which provides for the Secretary to have regard to the prevention of the person from undertaking the whole or a part of an approved English course by the action or inaction of a person who provides approved English courses.  This is removed because it lacks clarity and has resulted in timeframes being extended in circumstances where the person claims lack of knowledge of the English language program delivered under the Act.  It is not intended that the timeframes should be extended in this circumstance because all people who may be eligible for tuition are informed of the program at the time the relevant visa is granted.

 

110.                      An internal review process will be established in relation to decisions not to extend the time limits for registration or commencement under section 4C of the Act.  It is intended that the Secretary’s power to extend a period under subsection 4C(5) will be delegated to the Director of the Adult Migrant Education Program Section, Settlement Branch, Department of Immigration and Citizenship (DIAC).  Where the delegated officer refuses to grant an extension and this decision is disputed by the applicant, the decision will be re-assessed by the Assistant Secretary of Settlement Branch, DIAC.

 

111.                      The overarching objective for the provision of English courses under this Act is to facilitate the settlement of newly arrived migrants in Australia.  The Department encourages new migrants to register in and commence English language courses shortly after arrival in Australia.  In the event that a person is not provided with English courses under the Act, a person will be referred to other Commonwealth-funded English courses, such as the Language, Literacy and Numeracy Program administered by the Department of Education, Employment and Workplace Relations (DEEWR).

 

Section 4D - Ineligibility for English courses - time limit on tuition

 

112.                      This amendment inserts new section 4D into the Act.

 

113.                       Broadly, new section 4D provides that a person stops being eligible at the end of the period of five years starting on his or her visa commencement day, unless the Secretary extends this timeframe.  The effect of this provision is that a person must complete tuition in an approved English course within five years of the visa commencement day, unless an extension is granted.  “Visa commencement day” is defined in subsection 3(1) as amended by item 12. 

 

114.                      The purpose of this provision is firstly to encourage people who are eligible for tuition to participate in approved English courses soon after arriving in Australia, when they need it most.  Secondly, it will reduce the Minister’s ongoing liability to provide tuition, particularly in relation to people who must be provided with 510 hours of tuition in an approved English course under new section 4B of the Act.

 

Scope

 

115.                      New subsection 4D(1) provides that section 4D applies to a person who would (apart from section 4D) be eligible, if:

·          he or she has ever held a permanent visa; or

·          he or she has ever held a temporary visa of a class specified under subparagraph 4A(a)(ii).

 

116.                      The term “eligible” is defined in subsection 3(1) of the Act as amended by item 6.  New section 4A provides for the circumstances in which a person is “eligible” for the purposes of the Act, including that a person must not be ineligible under section 4C or 4D.

 

117.                      The time limits do not apply to persons listed in new subparagraph 4A(a)(iii) or (iv) of the Act who have never held a permanent visa or a temporary visa of a class specified under subparagraph 4A(a)(ii).  Subparagraphs 4A(a)(iii) and (iv) refer to:

 

·          persons who previously held a permanent entry permit or a permanent visa and have become an Australian citizen; and

·          persons aged under 18 years who have at least one parent who has held or holds a permanent entry permit or a permanent visa. 

 

118.                      Permanent entry permits were abolished in 1994 and, in relation to subparagraph 4A(a)(iv),  persons aged under 18 years would usually hold a permanent visa in their own right if their parent held or holds a permanent visa.  For this reason, it is very rare that such a person would be provided with tuition under the Act.  Given that the ability to provide English courses under section 4 of the Act is discretionary in nature, to avoid unnecessarily complex legislation the Act does not apply the time limits to this small group of people.

 

Time limits

 

119.                      New subsection 4D(2) provides that the person stops being eligible at the end of the period of five years starting on his or her visa commencement day.  This means that a person must complete tuition in an approved English course within five years of the visa commencement day, unless the Secretary extends this timeframe under new subsection 4D(5).

 

Extension of Time

 

120.                      New subsection 4D(3) provides that a person may apply to the Secretary for an extension of the five-year timeframe. 

 

121.                      New subsection 4D(4) provides that an application to extend the five-year timeframe under subsection 4D(3) must be made in the manner, and within the period, prescribed by the regulations and, subject to compliance with those regulations, may be made before or after the end of the five-year timeframe.

 

122.                      New subsection 4D(5) provides that on an application under section 4D, if the Secretary is satisfied that, for compelling or compassionate reasons, the applicant should not stop, or should not have stopped, being eligible under subsection 4D(2), the Secretary may extend the five-year timeframe by a specified period.

 

123.                      New subsections 4D(3) to (5) are similar to new subsections 4C(3) to (5), relating to extension of the registration and commencement timeframes, except that the Secretary must be satisfied that compassionate and compelling reasons exist for the five-year timeframe to be extended.  This is to ensure that the five-year timeframe is not generally subject to extension unless there are compelling and compassionate reasons for extension, even if the registration or commencement timeframes in subsection 4C(2) have been extended.

 

124.                      Consistent with the corresponding provision in subsection 4C(5), the Act does not require the Secretary to notify the applicant that the timeframe has been extended.  This requirement is not in the Act because in practice, the notification is provided in writing to the provider of the approved English course and is communicated orally to the applicant, using an interpreter if necessary.  Where the Secretary has decided not to extend a timeframe, a follow-up letter will be sent to the applicant confirming the details of the decision.

 

125.                      New subsection 4D(6) provides that in making a decision to extend a period under subsection 4D(5), the Secretary must have regard to the matters prescribed by the regulations and must not have regard to any other matter.  It is intended that the combined effect of subsections 4D(5) and (6) is that the matters prescribed in the regulations must be relevant to the existence of compelling and compassionate reasons.

 

126.                      An internal review process will be established in relation to decisions not to extend the time limit on eligibility under section 4D of the Act.  It is intended that the Secretary’s power to extend a period under subsection 4D(5) will be delegated to the Assistant Secretary of Settlement Branch, DIAC.  Where the delegated officer refuses to grant an extension and this decision is disputed by the applicant, the decision will be re-assessed by the First Assistant Secretary of Citizenship, Settlement and Multicultural Affairs Division, DIAC.

 

127.                      The overarching objective for the provision of English courses under this Act is to facilitate the newly arrived migrant’s settlement in Australia.  The Department encourages new migrants to register in and commence English language courses shortly after arrival in Australia.  In the event that a person is not provided with English courses under the Act, a person will be referred to other Commonwealth-funded English courses, such as the Language, Literacy and Numeracy Program administered by the Department of Education, Employment and Workplace Relations (DEEWR).

 

Part 3 - Citizenship Courses

 

128.                      This amendment inserts a new heading “Part 3 - Citizenship courses” before section 4E of the Act. 

 

129.           This amendment indicates that Part 3 of the Act deals with Citizenship courses.  This amendment, together with the headings for Part 2 and 4 inserted by this item and the headings for Part 1 and 5 inserted by items 1 and 17, creates a new structure for the Act to clarify the subject-matter of each part of the Act.

 

 

Section 4E - Citizenship courses

 

130.                      This amendment inserts new section 4E into the Act.

 

131.                      New section 4E provides that the Minster may arrange for citizenship courses to be provided inside or outside Australia to persons prescribed by the regulations.

 

132.                      Current section 4 of the Act allows the Minister to arrange for citizenship courses to be provided outside Australia for persons intending to migrate to Australia, and in Australia (and in the Territory of Cocos (Keeling) Islands and the Territory of Christmas Island) for certain categories of person, including permanent visa holders and holders of a class of temporary visa specified by the Minister in the Gazette. 

 

133.                      This amendment, together with new section 4 inserted by this item, separates the provision of citizenship courses from the provision of English courses.  This is to ensure that the time limits in new section 4C for registering in and starting an approved English course, and the five-year time limit in new section 4D on eligibility for approved English courses, do not apply in relation to citizenship courses.  This will enable the continuation of the delivery of the citizenship course as an alternative path to citizenship for vulnerable or disadvantaged refugees and migrants. (Section 3, as amended by item 4, defines “approved English course” as an English course provided in accordance with section 4.)  This also results in a clear delineation between the Minister’s power to provide, or arrange the provision of, English courses, and the Minister’s power to arrange for the provision of citizenship courses. 

 

134.                      The Regulations will prescribe the persons for whom the Minister may arrange citizenship courses.  This is to allow flexibility to specifically prescribe the persons who may be provided with citizenship courses, rather than maintaining the broad categories of person who may be provided with citizenship courses set out in current section 4 of the Act.

 

Part 4 - Implementation

 

135.                      This amendment inserts a new heading “Part 4 - Implementation” before section 5 of the Act. 

 

136.           This amendment indicates that Part 4 of the Act deals with the implementation of English and citizenship courses.  This amendment, together with the headings for Parts 2 and 3 inserted by this item and the headings for Part 1 and 5 inserted by items 1 and 17, creates a new structure for the Act to clarify the subject-matter of each part of the Act.

 

 

 

Section 5 - Provision of teaching and learning materials

 

137.                      This amendment inserts new section 5 into the Act.

 

138.                      New section 5 of the Act provides that the Minister may arrange for the purchase or production of, and the distribution of, teaching and learning materials for use in approved courses. 

 

139.                      The effect of this amendment is to omit current paragraph 5(b) from the Act.  Current paragraph 5(b) of the Act provides that the Minister may arrange for the purchase or production of, and the distribution of, teaching and learning materials for use in schools (whether or not in an approved course) for teaching the English language, or imparting an understanding of the ways of life in Australia and the rights and duties of an Australian citizen, to children referred to in subparagraph 4(b)(iv) or (c)(iv).  Subparagraphs 4(b)(iv) and (c)(iv) refer to children who are under 18 and have at least one parent who has held or holds a permanent entry permit or a permanent visa.

 

140.                      This amendment is made because teaching and learning materials are not purchased, produced or distributed for use in schools under the Act.  Rather, these materials are provided to schools by the relevant education authorities.  This amendment updates the Act to reflect current program delivery practices.

 

Item 15     Subsections 9(2) and (3)

 

141.                      This item omits the words “section 4 for the provision of approved courses by the Government of a State or Territory or by the school authority of an independent school” from subsections 9(2) and (3), and substitutes “section 4 or 4E for the provision of approved courses” into subsections 9(2) and (3) of the Act.

 

142.                      Section 9 provides that an arrangement under the Act may make provision for, or in relation to, the making of payments by the Commonwealth to another party to the arrangement in connection with matters to which the arrangement relates. 

 

143.                      New subsection 9(2) provides that, without limiting the generality of subsection 9(1), an arrangement under section 4 or 4E for the provision of approved courses may make provision for, or in relation to, the payment by the Commonwealth of the whole or a part of the costs listed in paragraphs 9(1)(a) to (e). 

 

144.                       New subsection 9(3), as amended by this item and item 16, provides that an arrangement under section 4 or 4E for the provision of approved courses may make provision for the Commonwealth to supply to the course provider, whether as a gift or otherwise, capital equipment of an educational nature to be used in the courses. 

 

145.                       This item removes the references to a “Government of a State or Territory” and “the school authority of an independent school” from subsections 9(2) and (3) because schools are not appointed as providers of English courses or citizenship courses.  The amendment updates the provision to ensure it is relevant to current program delivery practices.

 

146.                      This item also makes a consequential amendment to refer to an arrangement under “section 4 or 4E” for the provision of approved courses.  This reflects the separation of the provision of English courses (which is provided for in new section 4) and the provision of citizenship courses (which is provided for in new section 4E) effected by item 13 and by subsection 3(1) of the Act, as amended by item 3, which provides that “approved course” means an English course provided under section 4 or a citizenship course provided under section 4E.

 

Item 16             Subsection 9(3)

 

147.                       This item omits “supply, whether as a gift or otherwise, to that Government or school authority” from subsection 9(3) and substitutes “supply to the course provider, whether as a gift or otherwise,” in section 9 of the Act.

 

148.                       Current subsection 9(3) provides that an arrangement under section 4 for the provision of approved courses by the Government of a State or Territory or by the school authority of an independent school may make provision for the Commonwealth to supply, whether as a gift or otherwise, to that Government or school authority capital equipment of an educational nature to be used in the courses.  The term “capital equipment of an educational nature” is defined in subsection 3(1) of the Act, as amended by item 5.

 

149.                      This amendment, in conjunction with item 14, provides that an arrangement under section 4 or 4E for the provision of approved courses may make provision for the Commonwealth to supply to that course provider, whether as a gift or otherwise, capital equipment of an educational nature to be used in the courses.  In practice, schools are not appointed as providers of English courses or citizenship courses.  Therefore, the purpose of this amendment is to ensure that an arrangement for the provision of approved courses may make provision for capital equipment of an education nature to be supplied to the provider of an approved course to be used in that course.

 

Item 17             After section 9A

 

150.                      This amendment inserts a new heading “Part 5 - Miscellaneous” after section 9A of the Act. 

 

151.           This amendment indicates that Part 5 of the Act deals with miscellaneous matters relevant to the Act.  This amendment, together with the headings for Parts 2, 3 and 4 inserted by item 14 and the heading for Part 1 inserted by item 1, creates a new structure for the Act to clarify the subject-matter of each part of the Act.

 

152.                      This item also provides for two notes.  The first note provides that the heading to section 10 is altered by adding at the end “ by the Minister ”.  The second note provides that the heading to section 10A is altered by adding at the end “ by the Secretary ”. This clarifies the headings to indicate that section 10 deals with delegations by the Minister and section 10A deals with delegations by the Secretary.

 



Part 2 - Transitional and saving provisions

 

Item 18             Definitions

 

153.                      This item sets out the definitions that apply for the purposes of the transitional and savings provisions in Part 2 to Schedule 1 of the Bill.

 

154.                      This item provides that:

 

·          “approved English course” has the same meaning as in the old law.  Current section 3 of the Act provides that an “approved English course” means an English course provided in accordance with section 4 or 4B;

 

·          “commencement time” means the start of 1 January 2011;

 

·          “new law” means the Immigration (Education) Act 1971 as in force immediately after the commencement time (the start of 1 January 2011);

 

·          “old law” means the Immigration (Education) Act 1971 as in force immediately before the commencement time (the start of 1 January 2011);

 

·          “Secretary” means the Secretary of the Department;

 

·          “special category visa” has the same meaning as in the Migration Act 1958 (the Migration Act).  Section 5 of the Migration Act provides that “special category visa” has the meaning given by section 32, which provides in summary that a “special category visa” is a class of temporary visa which may be granted to a non-citizen who is a New Zealand citizen and holds a New Zealand passport that is in force (among other people);

 

·          “temporary visa” has the same meaning as in the Migration Act.  Section 5 of the Migration Act provides that “temporary visa” has the meaning given by subsection 30(2), which provides that a visa to remain in Australia may be a visa, to be known as a “temporary visa”, to remain in Australia during a specified period, until a specified event happens, or while the holder has a specified status.

 

Item 19             Transitional - gazettal of temporary visa classes

 

155.                      This item sets out a transitional arrangement relating to gazettal of temporary visa classes under current subparagraph 4(b)(ii) of the Act.  Current subparagraph 4(b)(ii) of the Act provides for the Minister to specify classes of temporary visa by notice published in the Commonwealth of Australia Gazette .

 

156.                      Subitem 19(1) provides that the item applies to a class of temporary visas if:

·          the class was specified in a notice published in the Gazette under subparagraph 4(b)(ii) of the old law; and

·          the notice was in force immediately before the commencement time.

 

157.                      Subitem 19(2) provides that subparagraph 4A(a)(ii) of the new law has effect, at and after the commencement time, as if the class has been specified in a legislative instrument made under that paragraph.  New subparagraph 4A(a)(ii) is inserted by item 14 and provides for the Minister to specify classes of temporary visa in a legislative instrument for the purposes of that paragraph.

 

158.                      This transitional reflects the intention that the same classes of temporary visa that are currently gazetted for the purposes of current subparagraph 4(b)(ii) of the Act, will be maintained in the legislative instrument made under new subparagraph 4A(a)(ii).

 

Item 20           Transitional - New Zealand citizens registered at commencement time

 

159.                      This item sets out the transitional arrangements for New Zealand citizens registered with the provider of an approved English course at commencement time.

 

160.                      Subitem 20(1) provides that the item applies to a class of  person who:

·          is a citizen of New Zealand; and

·          is in Australia; and

·          holds a special category visa; and

·          was, immediately before the commencement time, registered with the provider of an approved English course; and

·          held a special category visa at the time he or she first registered with the provider of an approved English course.

 

161.                      Subitem 20(2) provides that, for the purposes of the new law, other than section 4B (obligation to provide 510 hours of tuition in an English course), a special category visa held by the person at or after the commencement time is treated as if it were a permanent visa that came into effect at the time the special category visa mentioned in paragraph (1)(e) of this item came into effect. 

 

162.                      Current section 4 of the Act provides in part that the Minister may arrange for English courses to be provided to citizens of New Zealand who hold a special category visa.  The ability to provide English courses to New Zealand citizens is removed by item 14 of this Schedule, which repeals (among other provisions) section 4 and substitutes (among other provisions) new sections 4 and 4A.  The substituted provisions do not provide for the Minister to arrange for English courses to be provided to New Zealand citizens who hold a special category visa. 

 

163.                      The purpose of this transitional is to ensure that New Zealand citizens who hold a special category visa and who register with the provider of an approved English course before the commencement time (1 January 2011) may continue tuition after the commencement time. 

 

164.                      The transitional also ensures that those special category visa holders are subject to the criteria in new section 4A and the time limits in new section 4C and 4D in the same way that other visa holders are subject to those restrictions after the commencement time.  This is achieved by treating the special category visa held by the person at the commencement time as a permanent visa for the purposes of the Act (except for the purposes of new section 4B of the Act, which sets out the Minister’s obligation to provide 510 hours of tuition). 

 

165.                      This means that a special category visa holder who registered with the provider of an approved English course before the commencement time (1 January 2011) will:

 

·          cease to be “eligible” for the purposes of new section 4A of the Act if he or she achieves “functional English” (which is defined in subsection 3(1) of the Act as amended by item 7); and

 

·          be subject to the time limits on registering with the provider of an approved English course and starting an approved English course that are set out in new section 4C of the Act; and

 

·          be subject to the five-year time limit on eligibility that is set out in new section 4D of the Act.

 

166.                      The time limits in section 4C and 4D start to run in relation to special category visa holders on the first day the person was in Australia on or after the day when the special category visa held by the person at the time of registering with the provider of an approved English course came into effect.  The time limits are linked to the special category visa held by the person at the time of registering to provide certainty as to the person’s visa commencement date, because a person may have held more than one special category visa if they have left and re-entered Australia.

 

167.                      The transitional provisions in items 22, 23 and 26 may apply to special category visa holders affected by this item.

 

Item 21             Transitional - hours of tuition taken before commencement time

 

168.                      This item sets out the transitional arrangements for hours of tuition taken by a person before the commencement time.

 

169.                      This item provides that when working out how many hours of tuition a person has had for the purposes of subsection 4B(2) of the new law, the hours of tuition in approved English courses given before the commencement time in accordance with the old law are to be included.

 

170.                      New section 4B of the Act is inserted by item 14 and provides for the Minister’s obligation to provide 510 hours of tuition in an approved English course to certain eligible people.  New subsection 4B(2) provides that the obligation stops applying to a person when he or she has had 510 hours of tuition in approved English courses.  This transitional ensures that hours of tuition given to visa holders before the commencement time (1 January 2011) count towards the 510 hours that a person may be entitled to receive under new section 4B.  This preserves the existing policy intention that the Commonwealth is obliged to provide a maximum of 510 hours to a person.    

 

Item 22             Transitional - determination that a person has functional English

 

171.                      This item sets out the transitional arrangements in relation to a person who has been assessed as having functional English prior to the commencement of the new law.

 

172.                      Subitem 22(1) provides that the item applies to a person if a determination under paragraph 4D(1)(a) of the old law that the person has functional English (within the meaning of the old law) was in force immediately before the commencement time.

 

173.                      Subitem 22(2) provides that the person is taken, at and after the commencement time, to have functional English for the purposes of the new law.

 

174.                      Current paragraph 4D(a) of the Act provides that the obligation of the Commonwealth to a person under current section 4C ceases if the provider of an approved English course determines, in writing, in accordance with procedures approved in writing by the Secretary, that the person has functional English.

 

175.                      New paragraph 4A(b) provides that a person is “eligible” for the purposes of the Act if he or she does not have functional English.  Subsection 3(1) as amended by item 7 provides in part that a person has “functional English” if the provider of an approved English course determines that the person has functional English.

 

176.                      This transitional will prevent the need for the provider of an approved English course to re-assess a person’s English after the commencement time if that person has already been assessed as having functional English.

 

 

 

 

 

Item 23             Transitional - people registered at commencement time

 

177.                      This item sets out the transitional arrangements for persons who are registered with a provider of an approved English course prior to the commencement of the new law.

 

178.                      Subitem 23(1) provides that this item applies to a person who was, immediately before the commencement time, registered with the provider of an approved English course.

 

179.                      Subitem 23(2) provides that subsections 4C(2) and 4D(2) of the new law apply to the person as if the references in those provisions to the person’s visa commencement day were references to the day on which this item commences.

 

180.                      The note to this item explains that the item commences at the start of 1 January 2011.

 

181.                      New subsection 4C(2) is inserted by item 14 and provides that a person stops being eligible (for English language tuition under the Act) if he or she fails to register with the provider of an approved English course within 12 months (if the person is under 18 on the visa commencement day) or six months (if the person is 18 or over on the visa commencement day), or if he or she fails to start an approved English course within 12 months of the visa commencement day.  “Visa commencement day” is defined in subsection 3(1) as amended by item 12.

 

182.                      New subsection 4D(2) is inserted by item 14 and provides that a person stops being eligible (for English language tuition under the Act) at the end of the period of five years starting on his or her visa commencement day.

 

183.                      This item ensures that a person who, at any time before the commencement time (1 January 2011) registered with the provider of an approved English course, may start an approved English course within 12 months of the commencement time and may have five years to complete tuition in approved English courses.  This is to prevent a person who is registered with the provider of an approved English course from being ineligible for further tuition on and after 1 January 2011 (by reason that more than 12 months or five years have passed since the person’s visa commencement day).   

 

184.                      A person who has not registered with the provider of an approved English course before the commencement time must apply to the Secretary for an extension of the 12-month commencement timeframe or the five-year time limit in accordance with new section 4C or 4D of the Act (inserted by item 14). 

 

185.                      Items 24, 25 or 26 may apply to a person who has not registered before the commencement time.

 

186.                      A person aged 18 years or over would have been permitted to register with a provider of English courses before 1 January 2011 if he or she:

 

·         was a person of the type listed in current paragraph 4(b) or (c) (for example, the holder of a permanent visa or a temporary visa of a class specified by the Minister);

·         was assessed by the provider not to have functional English; and

·         registered with the provider within three months of arriving in Australia and started an English course within 12 months of arriving in Australia, unless the person was granted a waiver of these timeframes.

 

187.                      A person aged under 18 years would have been permitted to register with a provider of English courses before 1 January 2011 if he or she could not be placed in the school system and was assessed by the provider not to have functional English. 

 

188.                      Client registration is recorded on the Department’s AMEP Reporting and Management System.

 

Item 24           Transitional - determinations by the Secretary delaying the end of obligation

 

189.                      This item sets out the transitional arrangements in relation to determinations by the Secretary delaying the end of the Commonwealth’s obligation to provide 510 hours of tuition in an approved English course.

 

190.                      Subitem 24(1) provides that the item applies to a person if :

·          a determination was made by the Secretary under subsection 4D(2) of the old law; and

·          the determination provided that the obligation to the person under section 4D of the old law is, or was, to cease on a particular day (the “cessation day”) at or after the commencement time; and

·          the determination was in force immediately before the commencement time; and

·          the person is not covered by item 23.

 

191.                      Current subsection 4D(2) provides that if the obligation of the Commonwealth to provide 510 hours of tuition in an approved English course would cease at a particular date, and the Secretary is satisfied it would be unreasonable for the obligation to so cease, the Secretary may, in writing, determine that the obligation is not to cease, or is to cease only at a later date. 

 

192.                      This item relates to a determination made by the Secretary that the obligation is to cease at a later date.

 

193.                      Subitem 24(2) provides that section 4C of the new law applies to the person, at and after the commencement time, as if each of the references to a period in paragraphs 4C(2)(a) and (b) was a reference to the period ending at the end of the cessation day.

 

194.                      New section 4C is inserted by item 14.  New paragraph 4C(2)(a) provides that a person stops being eligible (for English language tuition) if he or she fails to register with the provider of an approved English course within a certain period of time depending on whether the person is aged under or over 18 years.  New paragraph 4C(2)(b) provides that a person stops being eligible (for English language tuition) if he or she fails to start an approved English course within a certain period of time.  The effect of this transitional is that a person in relation to whom the Secretary has made a determination that the obligation will cease at a later date, will stop being eligible for English language tuition on the date determined by the Secretary before the commencement time (1 January 2011). 

 

195.                      The purpose of this amendment is to avoid unfairness to people receiving tuition under the Act by ensuring that a date specified before the commencement time will remain in place after 1 January 2011.

 

Item 25            Transitional - determinations by the Secretary that obligation not cease

 

196.                      This item sets out the transitional arrangement in relation to determinations by the Secretary that the Commonwealth’s obligation to provide 510 hours of tuition in an approved English course is not to cease.

 

197.                      Subitem 25(1) provides that the item applies to a person if:

·          a determination was made by the Secretary under subsection 4D(2) of the old law; and

·          the determination provided that the obligation to the person under section 4D of the old law was not to cease; and

·          the determination was in force immediately before the commencement time; and

·          the person is not covered by item 23.

 

198.                      Current subsection 4D(2) provides that if the obligation of the Commonwealth to provide 510 hours of tuition in an approved English course would cease at a particular date, and the Secretary is satisfied it would be unreasonable for the obligation to so cease, the Secretary may, in writing, determine that the obligation is not to cease, or is to cease only at a later date.  This item relates to a determination made by the Secretary that the obligation is not to cease.

 

199.                      Subitem 25(2) provides that section 4C of the new law does not apply to the person.

 

200.                      New section 4C is inserted by item 14 and provides that a person stops being eligible (for English language tuition) if he or she fails to register with the provider of an approved English course or start an approved English course within certain time limits.  The effect of this transitional is that a person in relation to whom the Secretary has made a determination that the obligation will not cease, will not stop being eligible for English language tuition because he or she has not met the time limits set out in section 4C. 

 

201.                      The purpose of this amendment is to avoid unfairness to people receiving tuition under the Act by ensuring that a determination made by the Secretary that the obligation is not to cease will remain in place after 1 January 2011.

 

Item 26           Transitional - people who became ineligible before commencement time

 

202.                      This item sets out the transitional arrangements for people who became ineligible for English courses before the commencement time (1 January 2011).

 

203.                      Subitem 26(1) provides that the item applies to a person if:

·          the person:

o    would have stopped being eligible under subsection 4C(2) of the new law at any time before the commencement time, had the new law been in force; and

o    is not covered by item 23, 24 or 25; or

·          the person:

o    would have stopped being eligible under subsection 4D(2) of the new law at any time before the commencement time, had the new law been in force; and

o    is not covered by item 23.

 

204.                      New subsection 4C(2) is inserted by item 14 and provides that a person stops being eligible (for English language tuition under the Act) if he or she fails to register with the provider of an approved English course within 12 months (if the person is under 18 on the visa commencement day) or six months (if the person is 18 or over on the visa commencement day), or if he or she fails to start an approved English course within 12 months of the visa commencement day.  “Visa commencement day” is defined in subsection 3(1) as amended by item 12.

 

205.                      New subsection 4D(2) is inserted by item 14 and provides that a person stops being eligible (for English language tuition under the Act) at the end of the period of five years starting on his or her visa commencement day.

 

206.                      Item 23 relates to people who registered with the provider of an approved English course before the commencement time, while items 24 and 25 relate to people in relation to whom the Secretary made a determination under current subsection 4D(2) of the Act that the obligation to provide 510 hours of tuition in an approved English course is not to cease, or is to cease at a later date.

 

207.                      Subitem 26(2) provides that for the purposes of the new law, and subject to subsections 4C(3) to (6) and 4D(3) to (6) of the new law, the person is not eligible at or after the commencement time.

 

208.                      New subsections 4C(3) to (6) and 4D(3) to (6) are inserted by item 14 and provide for the timeframes in subsections 4C(2) and 4D(2) to be extended.

 

209.                      The effect of this item is that a person who did not register with the provider of an approved English course before the commencement day (1 January 2011) must apply for an extension of the timeframes under new subsection 4C(2) or 4D(2) of the Act if:

 

·          the person has not registered with the provider of an approved English course within six months of the person’s visa commencement day; or

·          the person has not started an approved English course within 12 months of the person’s visa commencement day; or

·          more than five years have passed since the person’s visa commencement day.

 

210.                      This transitional will affect two different groups of people.  Firstly, it will affect people who are entitled to receive up to 510 hours of tuition in an approved English course under current section 4C of the Act (section 4C clients).  Section 4C clients are subject to the time limits in current subsection 4D(1) of the Act.  Current subsection 4D(1) of the Act provides that the person must register within three months and commence the course within 12 months of the visa commencement date. 

 

211.                      A person in this group will, after the commencement time, also be subject to the five-year time limit for completing the 510 hours of tuition in an approved English course if they did not register with the provider of an approved English course before the commencement time.  If they did register before the commencement time, the effect of item 23 is that they have 12 months to commence tuition and five years to complete the tuition from the commencement time.  This transitional reflects the intention that potential clients access English courses early in their settlement period, in order to gain the most from the courses during their transition to life in Australia.

 

212.                      Secondly, the transitional will affect people who are provided with English courses under current section 4 of the Act (section 4 clients).  These people are not currently subject to time limits for registering in or commencing the course under the Act, however, similar timeframes to those imposed on section 4C clients are currently imposed on them under policy.  That is, section 4 clients are only provided with English courses under current section 4 of the Act if they register with the provider of an approved English course within three months and commence the English course within 12 months of their arrival in Australia, unless an extension of these timeframes has been granted.  Clients are notified of these time limits at the time the relevant visa is granted.

 

213.                      A person in this group will, after the commencement time, be subject to the six-month registration timeframe, 12-month commencement timeframe and five-year eligibility timeframe under the Act if they did not register with the provider of an approved English course before the commencement time.  If they did register before the commencement time, the effect of item 23 is that they have 12 months to commence tuition and five years to complete the tuition from the commencement time.  This transitional reflects the intention that potential clients access English courses early in their settlement period, in order to gain the most from the courses during their transition to life in Australia.     

 

Item 27             Saving - refund of fees for English courses

 

214.                      This item sets out a saving provision in relation to the refund of fees for English courses.

 

215.                      This item provides that despite the repeal of paragraph 4A(3)(b) of the old law by Part 1 of this Schedule, that paragraph, and regulations made for the purposes of that paragraph, continue to apply at and after the commencement time in relation to fees charged before the commencement time under regulations made for the purposes of subsection 4A(1) of the old law.

 

216.                      Current paragraph 4A(3)(b) of the Act provides that the regulations providing for the charging and recovery of fees in respect of English courses provided in accordance with section 4, may provide for the refund, reduction or waiving of fees.  This item ensures that refunds, reductions and waiving of fees paid before the commencement time (1 January 2011) may be made after the commencement time.