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1998–1999–2000
The Parliament of the
Commonwealth of Australia
HOUSE OF
REPRESENTATIVES
EDUCATION SERVICES FOR OVERSEAS
STUDENTS (CONSEQUENTIAL AND TRANSITIONAL) BILL 2000
EXPLANATORY
MEMORANDUM
(Circulated by authority of the Minister
for Education, Training and Youth Affairs the Hon Dr David Kemp
MP)
ISBN: 0642 451648
OUTLINE
The purpose of this Bill is to repeal the Education Services for
Overseas Students (Registration of Providers and Financial Regulation) Act 1991
(the old ESOS Act), and outline the introductory and transitional conditions
for the implementation of the Education Services for Overseas Students Act
2000 (the new ESOS Act).
In particular, the Bill establishes
transitional and consequential arrangements for the following items:
· notification requirements for the starting day of obligations regarding information about accepted students, visa breaches and record keeping for registered providers;
· carry-over requirements for accepted students and registered providers as the new ESOS Act is introduced;
· national code compliance conditions;
· amendments to the Migration Act 1958 to provide for appropriate
exchange of information and to enable the making of regulations.
The old
ESOS Act was introduced to establish key national elements for the regulation of
the international education and training industry. The Act has been amended and
extended since its introduction, increasing industry responsibility and further
protecting Australia’s international reputation. As the industry develops
and reforms are implemented, an even more effective framework for managing the
industry is required.
The Education Services for Overseas Students
(Consequential and Transitional) Bill 2000 (ESOS Consequential and Transitional
Bill) is important in linking the new ESOS Act, the national code and the
relevant provisions of the Migration Act 1958. The ESOS Consequential and
Transitional Bill ensures that new, transitional and carry-over conditions
relating to education / training providers and overseas students alike, are
clearly stipulated and unambiguous.
FINANCIAL IMPACT
The Bill will have no identifiable financial impact.
EDUCATION SERVICES FOR OVERSEAS STUDENTS (CONSEQUENTIAL AND
TRANSITIONAL) BILL 2000
NOTES ON INDIVIDUAL
CLAUSES
Clause 1 Short Title
The short title by which this Act may be
cited is the Education Services for Overseas Students (Consequential and
Transitional) Act 2000.
Clause 2 Commencement
This
clause sets out the commencement date for the provisions of this
Bill.
· The clause provides for sections 1 and 2 to commence on
Royal Assent.
· Schedule 4 contains amendments to the merits review provisions of the
new ESOS Act. The commencement date for the amendments in Schedule 4 will ensure
that the merits review provisions under the new ESOS Act refer to the
Administrative Review Tribunal once that body replaces the Administrative
Appeals Tribunal.
· The remaining provisions of the Act commence on a
date to be proclaimed.
Clause 3 Schedule(s)
Clause 3
provides that each Act specified in a Schedule is amended or repealed in
accordance with the applicable item in the Schedule
concerned.
Clause 4 Definitions
Clause 4 contains
definitions of terms used in the Act.
SCHEDULE 1—REPEAL OF THE OLD ESOS ACT
Education Services for Overseas Students (Registration of Providers
and Financial Regulation) Act 1991
Item 1: The whole of the
Act
This item repeals the Education Services for Overseas Students
(Registration of Providers and Financial Regulation Act)
1991.
Education Services for Overseas Students
(Registration Charges Act) 1997
Item 2: Section 4
This item omits the reference to the Education Services for
Overseas Students (Registration of Providers and Financial Regulation Act)
1991 and replaces it with the Education Services for Overseas Students
Act 2000
SCHEDULE 2—APPLICATION AND TRANSITIONAL
Item 1: Application—starting day for obligations of
registered providers
Certain obligations will be imposed on
registered providers by Part 3 of the new ESOS Act. Item 1 requires
that the starting date for these obligations be published in the Gazette and
that the starting date be at least 28 days after publication. Each registered
provider must be notified in writing of the starting day.
This item also
provides that the Gazette notice may prescribe give extra time for certain
providers to comply with the requirements of section 21 of the new ESOS
Act.
Item 2: Transitional—registration
This item
ensures that providers’ registrations will continue under the new ESOS Act
as if the registration had been done for the same courses under the new ESOS
Act. A registration that was suspended immediately before the commencement of
the new ESOS Act will be suspended to the same extent under the new ESOS
Act.
Item 3: Transitional—national code
The new ESOS
Act will set up a national code of practice to ensure nationally consistent
standards for the registration and conduct of registered providers.
This
item will ensure that existing registered providers have sufficient time to meet
the national code’s requirements by providing for the power to prescribe
extra time for providers to comply with the code’s
requirements.
Item 4: Application—notified trust accounts and
ESOS Assurance Fund
This item provides that requirements relating to
the ESOS Assurance Fund apply to 2001 and later years, but that the Minister may
publish a notice in the Gazette that the requirements apply to 2002 and
later years. If such a notice is published in the Gazette notified trust
account requirements continue to operate until 2002 as if those requirements had
not been repealed by item 1 of Schedule 1. This item also provides that the
notified trust account requirements under the old ESOS Act will continue to
apply until the commencement of Part 5 of the new ESOS Act, regardless of
whether Schedule 1 of this Act repeals the requirements earlier.
Item
5: Transitional—money in notified trust accounts
Course money
that was in a notified trust account immediately before the commencement of this
item is no longer considered to be held on trust after the commencement of this
item.
Item 6: Transitional—regulations
This item
provides that the regulations made under the new ESOS Act may make provisions
for the transition from the old ESOS Act to the new ESOS Act and about for
transitional matters.
SCHEDULE 3—AMENDMENT OF THE MIGRATION
ACT
Part 1—Disclosure of immigration
information
Migration Act 1958
Item 1: After
subparagraph 488(2)(a)(v)
Item 1 amends section 488 of the
Migration Act 1958, (the Migration Act) which deals with ‘movement
records’. This amendment is intended to ensure that the Department
administering the Migration Act can provide arrival and departure information
regarding student visa holders to the Department administering the Education
Services for Overseas Students Act 2000 ("the new ESOS
Act").
Subsection 488(1) of the Migration Act prohibits the reading,
examination, reproduction, use or disclosure of "movement records" otherwise
than in an accordance with an authority given under subsection 488(2). Movement
records are defined in section 5 of the Migration Act as "information contained
within a notified database". Section 489 of the Migration Act allows the
Immigration Minister to gazette a database containing information in relation to
the entry of persons into, and departure of persons from, Australia to be a
notified data base. Currently only one such database, the movement records, has
been notified.
Current paragraph 488(2)(a) provides that the Immigration
Minister may authorise an officer (defined in subsection 5(1) of the Migration
Act) to perform any of the actions prohibited by subsection 488(1), for the
purposes of the laws and activities listed in subparagraphs 488(2)(i) to (v). An
officer so authorised may then read, examine, reproduce, use or disclose
movement records for the purpose of the specified law or activity.
Item
1 inserts new subparagraphs 488(2)(a)(vi) and (vii) to provide for additional
laws for the purposes of which the Immigration Minister may authorise an officer
to deal with movement records in ways otherwise prohibited by subsection 488(1):
· the new ESOS Act (new subparagraph 488(2)(a)(vi)); and
· prescribed Commonwealth, State or Territory legislation (new
subparagraph 488(2)(a)(vii))
Item 2: At the end of subsection
488(2)
Current paragraph 488(2)(b) provides that the Minister may
authorise certain officers or employees of agencies other than Immigration to
read, examine, reproduce, use or disclose movement records for the purposes of
specified laws or activities.
Item 2 inserts new paragraphs 488(2)(f)
and (g). New paragraph 488(2)(f) provides that the Minister may authorise an
employee of the Department whose Minister administers the new ESOS Act to
perform for the purposes of that Act one or more of those actions. This
amendment is intended to ensure that arrival and departure information on
student visa holders can be used by the Department administering the new ESOS
Act for the purposes of that Act.
New paragraph 488(2)(g) provides that
the Minister may authorise a prescribed employee of a prescribed agency of the
Commonwealth, or of a State or Territory, to perform for the purposes of
prescribed legislation one or more of those actions.
Item 3 inserts new section 488A, which deals with giving information to
other relevant agencies.
New subsection 488A(1) provides that for
certain purposes the Secretary of the Department administering the Migration Act
may give information obtained or received for the purposes of that Act to an
agency of the Commonwealth, or of a State or Territory, that is responsible for
or otherwise concerned with the regulation of providers.
(New subsection
488A(3) provides that in this section, "provider" has the same meaning as in the
new ESOS Act).
The purposes for which the Secretary may give information
to the above agencies:
· assisting with the regulation of providers;
· promoting compliance with the conditions of a particular student visa
or visas, or of student visas generally;
New subsection 488A(2) clarifies
that subsection (1) does not override section 488 which prohibits the disclosure
of movement records except in limited circumstances.
Part
2—Consequential amendment
Item 4: At the end of subsection
504(1)
This item inserts new paragraph 504(1)(l) into section 504 of
the Migration Act. The new paragraph is intended to allow the Governor-General
to make regulations, under the Migration Act, making provision for matters the
new ESOS Act requires or permits to be prescribed in those regulations.
For example, new paragraph 96(2)(d) of the new ESOS Act provides
that, in considering whether to issue an Immigration Minister's suspension
certificate, the Immigration Minister may have regard to, among other things,
‘any other matter set out in regulations made for the purposes of this
paragraph under the Migration Act 1958’. New paragraph 504(1)(l)
will ensure that the Migration Regulations 1994 can provide for these
matters as required.
SCHEDULE 4—CHANGED ADMINISTRATIVE LAW ARRANGEMENTS
Education Services for Overseas Students Act
2000
Items 1 to 6
Items 1 to 3 make amendments to
provisions of the new ESOS Act, replacing references to the Administrative
Appeals Tribunal, the Administrative Appeals Tribunal Act 1975 (the AAT
Act) and a provision of the AAT Act that will be required following the passage
of the Administrative Review Tribunal Act (ART Act).
Item 4 replaces a
section reference to the AAT Act with one to the ART Act.
Item 5 replaces
a term used in relation to the AAT Act with its equivalent from the ART
Act.
Item 6 adds a note at the end of subsection 176(2) to the effect
that the Administrative Review Tribunal will be established by the ART Act 2000
or the ART Act 2001, depending on when the ART Act passes through
Parliament.