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2019-2020
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
EDUCATION SERVICES FOR OVERSEAS STUDENTS
AMENDMENT (REFUNDS OF CHARGES AND OTHER
MEASURES) BILL 2020
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Education,
the Honourable Dan Tehan MP)
EDUCATION SERVICES FOR OVERSEAS STUDENTS
AMENDMENT (REFUNDS OF CHARGES
AND OTHER MEASURES) BILL 2020
OUTLINE
The Education Services for Overseas Students Amendment (Refunds of Charges
and Other Measures) Bill 2020 (the Bill) amends the Education Services for
Overseas Students Act 2000 (ESOS Act) to enable refunds of registration charges,
to clarify the definition of courses, and to enable the Minister responsible for
international education to include and exempt certain courses from the ESOS Act.
To deliver courses to overseas students, education providers must be registered on
the Commonwealth Register of Institutions and Courses for Overseas Students
(CRICOS) and pay an Annual Registration Charge (ARC) and Entry to Market
Charges (EMCs), imposed by the Education Services for Overseas Students
(Registration Charges) Act 1997 (Registation Charges Act). These charges fund the
regulatory activities which uphold the integrity and reputation of Australia's
international education and training sector.
The Bill enables the Secretary, on behalf of the Commonwealth, to refund the whole
or part of a charge under the Registration Charges Act if there are special
circumstances that justify doing so.The purpose of this amendment is to provide
sector-wide support to registered providers in special circumstances, such as the
current COVID-19 pandemic.
As part of the Australian Government's economic response to the COVID-19
pandemic, registered providers are not required to pay any ARCs or EMCs for the
period from 1 January 2020 to 30 June 2021. Registered providers who already
paid a 2020 ARC or EMC were refunded using act of grace provisions in the Public
Governance, Performance and Accountability Act 2013 to a total of more than
$10.9 million. This amendment to the ESOS Act will enable more flexible sector
responses in the future should further refunds be required.
The Bill also refines the definition of "course" in the ESOS Act to more explicitly
align it with the established regulatory frameworks in place for formal education
qualifications in Australia.
The policy intention is that this definition captures only those courses which enable
a student to:
gain a substantive qualification;
study a component of a course which is necessary to gain a substantive
qualification;
attend an English language or academic preparation course which would
lead to a substantive qualification;
have a genuine study experience in a course;
study in a course which complies with nationally recognised education
quality frameworks, and with a registered provider in Australia; or
study a course which has direct relevance to a student's long term career
goals.
2
The new definition of "course" includes only those courses which are already
endorsed or accredited under a national, state or territory framework, as well as
English Language Intensive Courses for Overseas Students (ELICOS) and
Foundation Programs.
The new definition of "course" and the Minister's power to exempt certain courses
would effectively exclude those courses not already endorsed or accredited under a
national, state or territory framework, such as many microcredentials, hobby and
recreational courses. These courses would no longer have to be registered on
CRICOS to be offered to overseas students.
The regulatory requirements placed on registered providers protect the fundamental
objects of the ESOS Act, including to provide tuition assurance, quality education
and protect visa integrity, where an overseas student has made a substantial
investment in a course of education or training in Australia. However, these
regulatory requirements need not apply to certain types of supplementary study,
where an overseas student already studying a course in Australia wishes to
undertake extra study in addition to their substantive program.
For this reason, the amendment in this Bill will provide a power for the Minister to
make a legislative instrument to include and exempt certain courses from the ESOS
Act.
Consultation with the international education industry, overseas students and
providers has confirmed support for the Minister to initially exempt courses where
they are the type of courses that:
students can attend in addition to their full-time main course of study, without
jeopardising the attendance or progress of this course (which would breach
visa requirements);
pursue personal interests, while the student is studying to enhance the
quality of the students' Australian experience; or
may be required ahead of attending a workplace component approved as
part of a substantive qualification or for employment consistent with their
student visa requirements of up to 40 hours a fortnight, such as:
o hospitality;
o health;
o construction; or
o infection control.
These courses are sometimes referred to as supplementary courses or short
courses, or microcredentials. These are not concepts defined under the ESOS Act.
They are generic terms for those courses which overseas students may wish to
take in addition to the course for which their visa was granted. They are typically
short in duration and low cost, such as first aid, infection control, construction white
cards, or responsible service of alcohol courses.
Giving the Minister a power to declare that a course (or types of course) are
included or exempt from the registration requirements in the ESOS Act will ensure
students are not able to obtain a study visa for exempt courses while enabling
education providers to expand offerings to international students without the need
to register on CRICOS.
3
FINANCIAL IMPACT STATEMENT
The implementation of the Bill will require changes to the Provider Registration and
International Student Management System (PRISMS). System changes will be
required to reflect the revised definition of course to ensure the accurate recording
of courses and student enrolments. This will also protect the integrity of the student
visa system by ensuring that students cannot be granted a student visa for exempt
courses.
The cost of the system changes has been estimated at $0.2 million.
4
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011
EDUCATION SERVICES FOR OVERSEAS STUDENTS
AMENDMENT (REFUNDS OF CHARGES
AND OTHER MEASURES) BILL 2020
The Education Services for Overseas Students Amendment (Refunds of Charges
and Other Measures) Bill 2020 is compatible with the human rights and freedoms
recognised or declared in the international instruments listed in section 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
The Education Services for Overseas Students Amendment (Refunds of Charges
and Other Measures) Bill 2020 (the Bill) amends the Education Services for
Overseas Students Act 2000 (ESOS Act) to enable refunds of registration charges,
to clarify the definition of courses, and to enable the Minister responsible for
international education to include and exempt certain courses from the ESOS Act.
To deliver courses to overseas students, education providers must be registered on
the Commonwealth Register of Institutions and Courses for Overseas Students
(CRICOS) and pay an Annual Registration Charge (ARC) and Entry to Market
Charges (EMCs), imposed by the Education Services for Overseas Students
(Registration Charges) Act 1997 (Registation Charges Act). These charges fund the
regulatory activities which uphold the integrity and reputation of Australia's
international education and training sector.
The Bill enables the Secretary, on behalf of the Commonwealth, to refund the whole
or part of a charge under the Registration Charges Act if there are special
circumstances that justify doing so.The purpose of this amendment is to provide
sector-wide support to registered providers in special circumstances, such as the
current COVID-19 pandemic.
As part of the Australian Government's economic response to the COVID-19
pandemic, registered providers are not required to pay any ARCs or EMCs for the
period from 1 January 2020 to 30 June 2021. Registered providers who already
paid a 2020 ARC or EMC were refunded using act of grace provisions in the Public
Governance, Performance and Accountability Act 2013 to a total of more than
$10.9 million. This amendment to the ESOS Act will enable more flexible sector
responses in the future should further refunds be required.
The Bill also refines the definition of "course" in the ESOS Act to more explicitly
align it with the established regulatory frameworks in place for formal education
qualifications in Australia.
The policy intention is that this definition captures only those courses which enable
a student to:
gain a substantive qualification;
5
study a component of a course which is necessary to gain a substantive
qualification;
attend an English language or academic preparation course which would
lead to a substantive qualification;
have a genuine study experience in a course;
study in a course which complies with nationally recognised education
quality frameworks, and with a registered provider in Australia; or
study a course which has direct relevance to a student's long term career
goals.
The new definition of "course" includes only those courses which are already
endorsed or accredited under a national, state or territory framework, as well as
English Language Intensive Courses for Overseas Students (ELICOS) and
Foundation Programs.
The new definition of "course" and the Minister's power to exempt certain courses
would effectively exclude those courses not already endorsed or accredited under a
national, state or territory framework, such as many microcredentials, hobby and
recreational courses. These courses would no longer have to be registered on
CRICOS to be offered to overseas students.
The regulatory requirements placed on registered providers protect the fundamental
objects of the ESOS Act, including to provide tuition assurance, quality education
and protect visa integrity, where an overseas student has made a substantial
investment in a course of education or training in Australia. However, these
regulatory requirements need not apply to certain types of supplementary study,
i.e., where an overseas student already studying a course in Australia wishes to
undertake extra study in addition to their substantive program.
For this reason, the amendment in this Bill will provide a power for the Minister to
make a legislative instrument to include and exempt certain courses from the ESOS
Act.
Consultation with the international education industry, overseas students and
providers has confirmed support for the Minister to initially exempt courses where
they are the type of courses that:
students can attend in addition to their full-time main course of study, without
jeopardising the attendance or progress of this course (which would breach
visa requirements);
pursue personal interests, while the student is studying to enhance the
quality of the students' Australian experience; or
may be required ahead of attending a workplace component approved as
part of a substantive qualification or for employment consistent with their
student visa requirements of up to 40 hours a fortnight, such as:
o hospitality;
o health;
o construction; or
o infection control.
These courses are sometimes referred to as supplementary courses or short
courses, or microcredentials. These are not concepts defined under the ESOS Act.
They are generic terms for those courses which overseas students may wish to
6
take in addition to the course for which their visa was granted. They are typically
short in duration and low cost, such as first aid, infection control, construction white
cards, or responsible service of alcohol courses.
Giving the Minister a power to declare that a course (or types of course) are
included or exempt from the registration requirements in the ESOS Act will ensure
students are not able to obtain a study visa for exempt courses while enabling
education providers to expand offerings to international students without the need
to register on CRICOS.
Analysis of human rights implications
The Bill engages the following human rights:
the right to education - Article 13 of the International Covenant on
Economic, Social and Cultural Rights (ICESCR), and
the right to work - Article 6 of the ICESCR.
Right to education
The Bill engages the right to education contained in Article 13 of the ICESCR. The
right to education recognises the important personal, societal, economic and
intellectual benefits of education.
A strong international education system, which includes appropriate protections for
overseas students, allows Australia to promote and support the right to
education.The ESOS Act protects Australia's reputation for quality education and
training services.The power to refund registration charges strengthens the
Commonwealth's ability to be responsive to the international education sector
during special circumstances, supporting the continued provision of quality
education and training services to overseas students.
The Bill is compatible with the right to education as it enables overseas students to
undertake specific courses with registered providers under the ESOS Act and also
allows the Minister to include and exempt certain courses from the requirements of
the ESOS Act.
Overseas students will continue to be afforded the tuition assurance and
protections under the ESOS Act for courses registered under the ESOS Act. The
ability for the Minister to exempt certain courses from the requirements of the ESOS
Act, will assist students to pursue other kinds of supplementary courses to facilitate
personal interests and enhance the quality of students' Australian experience
without the need for providers to register the course under the ESOS Act. Overall,
overseas students will continue to be afforded tuition assurance for courses that
come within the scope of the ESOS Act as specified in their visa pathway, and also
pursue other educational interests in other courses outside of their main course of
study.
7
Right to Work
The Bill also engages the right to work contained in Article 6 of the ICESCR. Article
6(1) recognises the right to work, which includes the right of everyone to the
opportunity to gain one's living by work which he or she freely chooses or accepts.
The Bill furthers the Commonwealth's commitment to the delivery of quality
education and training services to overseas students which provides a solid
foundation for people to pursue quality work objectives after completing their
studies. The promotion of the right to education inherently leads to the promotion of
the right to work, as education is one of the pathways to employment. A high quality
international education system provides a foundation on which overseas students
may pursue broader employment opportunities.
This Bill is compatible with the right to work as the Bill will enable overseas students
to undertake specific courses with registered providers under the ESOS Act and
also other exempt courses outside the scope of the ESOS Act, which in turn will
expand overseas students' access to courses to gain pre-requisite industry
qualifications. This will improve overseas students' employability while they pursue
their main course of study and make them less vulnerable to exploitation in the
workplace.
Conclusion
The Bill is compatible with human rights because it advances the protection
of human rights in the delivery of education services in Australia.
8
EDUCATION SERVICES FOR OVERSEAS STUDENTS
AMENDMENT (REFUNDS OF CHARGES
AND OTHER MEASURES) BILL 2020
NOTES ON CLAUSES
Clause 1 - Short title
This clause provides for the Act to be the Education Services for Overseas
Students Amendment (Refunds of Charges and Other Measures) Act 2020.
Clause 2 - Commencement
The table in subclause 2(1) sets out when the Act's provisions will commence. The
table provides that sections 1 to 3 commence the day the Act receives the Royal
Assent, Schedule 1, Part 1 commences on 1 July 2021 and Schedule 1, Part 2
commences the day after the Act receives the Royal Assent.
Clause 3 - Schedules
This clause provides that any legislation that is specified in a schedule is amended
or repealed as set out in the applicable items in the schedule and that any other
item in a schedule has effect according to its terms.
LIST OF ABBREVIATIONS
ESOS Act Education Services for Overseas Students Act 2000
Registration Education Services for Overseas Students (Registration
Charges Act Charges) Act 1997
9
Schedule 1 - Amendments
Summary
Schedule 1 amends the ESOS Act. The Bill amends the ESOS Act to enable
refunds of registration charges, and to clarify the definition of courses.
Part 1 of Schedule 1 amends the ESOS Act to enable the Secretary, on behalf of
the Commonwealth, to refund the whole or part of a charge under the Registration
Charges Act if there are special circumstances that justify doing so.The purpose of
this amendment is to provide sector-wide support to registered providers in special
circumstances, such as the current COVID-19 pandemic.
Part 2 of Schedule 1 amends the ESOS Act to refine the definition of "course" in the
ESOS Act to more explicitly align it with the established regulatory frameworks in
place for formal education qualifications in Australia, and gives the Minister
responsible for international education the power to make a legislative instrument to
include and exempt certain courses from the ESOS Act requirements.
The Bill also includes application and transitional provisions to provide for the
application and transitional arrangements for providers that may be impacted by the
amendments.
Detailed explanation
Part 1 - Refunds of charges
Education Services for Overseas Students Act 2000
Item 1 - After section 176C
Item 1 inserts new section 176D (Refund of charge in special circumstances) after
section 176C of the ESOS Act. Section 176D provides that the Secretary may, on
behalf of the Commonwealth, refund the whole or part of a charge under the
Registration Charges Act that is paid to the Commonwealth if the Secretary is
satisfied that there are special circumstances that justify doing so.
To deliver courses to overseas students, education providers must be registered on
the Commonwealth Register of Institutions and Courses for Overseas Students
(CRICOS) and pay an Annual Registration Charge (ARC) and Entry to Market
Charges (EMCs), imposed by the Registation Charges Act. These charges fund the
regulatory activities which uphold the integrity and reputation of Australia's
international education and training sector.
New section 176D enables the Secretary to refund the whole or part of an ARC or
EMC if there are special circumstances that justify doing so. The purpose of this
amendment is to provide sector-wide support to registered providers in special
circumstances, such as the current COVID-19 pandemic. Generally, such
circumstances would be characterised by unexpected events or situations, across
10
the sector, creating undesirable or anomalous outcomes that could be improved or
remedied by refunds of charges.
New section 176D will provide the legislative authority for the Commonwealth to
refund the ARC and EMCs to providers, and section 77 of the Public Governance,
Performance and Accountability Act 2013 will provide the appropriation for any
refund made under this new provision.
Item 2 - Application provision
Item 2 is an application provision that specifies that new section 176D (inserted
through Item 1) applies in relation to charges paid on or after the commencement of
this item. Part 1 of Schedule 1 to the Bill, including Items 1 and 2 commence on 1
July 2021. Therefore, the power to refund introduced through section 167D will only
apply in relation to any ARCs and EMCs paid by a provider on or after 1 July 2021.
Part 2 - Other amendments
Education Services for Overseas Students Act 2000
Item 3 - Section 5
Item 3 inserts the definition for 'Australian Qualifications Framework' to have the
same meaning as in the Higher Education Support Act 2003. The definition is
inserted as a consequence of Item 5.
Item 4 - Section 5 (definition of course)
Item 4 repeals the definition of course in section 5 of the ESOS Act, and substitutes
the definition to have the meaning given by new section 5AA (inserted by Item 5).
Item 5 - After section 5
Item 5 inserts new section 5AA (Definition of course) after section 5 of the ESOS
Act. Subsection 5AA(1) provides that a course is a course of education or training
for the purposes of the ESOS Act if the course satisfies one or more of the
following:
the course leads to a qualification recognised in the Australian Qualifications
Framework;
the course is a course of education at a level that, under section 15 of the
Australian Education Act 2013, constitutes primary education, or secondary
education;
the course is a Foundation Program;
the course is an English Language Intensive Course for Overseas Students
(ELICOS);
the course is offered by a registered higher education provider; or
the course is a VET course within the meaning of the National Vocational
Education and Training Regulator Act 2011.
The purpose of this definition is to specify the types of courses that would come
within the scope of the ESOS Act and to include only those courses which are
11
already endorsed or accredited under a national, state or territory framework, as
well as ELICOS, Foundation Programs and courses delivered by higher education
providers. The intention is that this definition captures only those courses which
enable a student to:
gain a substantive qualification;
study a component of a course which is necessary to gain a substantive
qualification;
attend an English language or academic preparation course which would
lead to a substantive qualification;
have a genuine study experience in a course;
study in a course which complies with nationally recognised education
quality frameworks, and with a registered provider in Australia; or
study a course which has direct relevance to a student's long term career
goals.
A provider may apply to be registered to provide a course or courses as defined
under new subsection 5AA(1) at a location or locations to overseas students under
section 9 of the ESOS Act.
Under new subsection 5AA(2), the Minister, by legislative instrument, may
determine that a course of education or training is a course for the purposes of the
ESOS Act. The note under subsection 5AA(2) refers to subsection 13(3) of the
Legislation Act 2003 for specification by class to clarify that the Minister has the
power to determine a class of courses in the instrument. This will provide the
necessary flexibility for the Minister to quickly respond to sector changes regarding
courses offered to overseas students.
Under new subsection 5AA(3), the Minister, by legislative instrument, may
determine that a course of education or training is not a course for the purposes of
the ESOS Act. The Minister may exempt a course or class of courses from the
definition of course under the ESOS Act, and therefore the requirements of the
ESOS Act. As above, the note under subsection 5AA(3) clarifies that the Minister
has the power to exempt a class of courses in an instrument.
It is intended that the Minister will exempt certain types of courses (sometimes
referred to as short courses, supplementary courses or microcredentials) from the
definition of course for the purposes of the ESOS Act. The proposed exempt
courses are typically short in duration and low cost, such as first aid, infection
control, construction white cards, or responsible service of alcohol courses. It is
intended that the Minister will exempt hobby and recreational courses (that are
considered non-award courses) offered by higher education providers that overseas
students wish to take in addition to the main course for which their student visa was
granted. The Minister will consult relevant stakeholders in making any legislative
instrument to ensure any inclusions or exemptions are appropriate and consistent
with the objectives of the ESOS Act.
Students will retain the protections of the ESOS Act for the courses that come
within the new definition of course that are specified in their visa pathway.
12
Item 6 - Transitional provisions
Item 6 sets out the transitional arrangements following the changes to the definition
of course through Items 4 and 5, this includes:
If a provider is registered to provide a course(s) at a location(s) under
Division 3 of Part 2 of the ESOS Act immediately before the commencement
of this item (the item commences the day after the Bill as enacted receives
the Royal Assent), then the registration continues in force on and after that
commencement to the extent that the registration is in respect of a course
that is covered by new section 5AA.
If an application made by a provider under section 9 (application to be
registered), section 10D (application to renew registration) or section 10H
(application to add one or more courses at one or more locations to
registration) of the ESOS Act was pending immediately before the
commencement of this item, then the relevant ESOS agency for the provider
may, on and after the commencement of this item, continue to deal with that
application to the extent that the application is in respect of a course covered
by new section 5AA.
If a condition imposed on a provider under section 10B (condition of
registration) or section 83 (ESOS agency may impose sanctions for non-
compliance) of the ESOS Act was in force immediately before the
commencement of this item, then the condition continues in force on and
after the commencement to the extent that the condition is in respect of a
course covered by new section 5AA.
If a notice was in force under section 10K (notice of addition of one or more
courses at one or more locations to registration) of the ESOS Act
immediately before the commencement of this item, then the notice
continues in force on and after that commencement to the extent that the
notice is in respect of a course covered by new section 5AA.
If a suspension on a provider under section 83 of the ESOS Act was in force
immediately before the commencement of this item, then the suspension
continues in force on and after that commencement to the extent that the
suspension is in respect of a course covered by new section 5AA.
13