Education Services for Overseas Students Legislation
Amendment Act 2011
No. 11, 2011
An Act relating to education for overseas students, and for
related purposes
[Assented to 8 April 2011]
The Parliament of Australia enacts:
1
Short title
This Act may be cited as the Education
Services for Overseas Students Legislation Amendment Act 2011.
2
Commencement
(1) Each provision of this Act specified in
column 1 of the table commences, or is taken to have commenced, in accordance
with column 2 of the table. Any other statement in column 2 has effect
according to its terms.
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Commencement
information
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Column 1
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Column 2
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Column 3
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Provision(s)
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Commencement
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Date/Details
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1. Sections 1 to 3 and anything in this Act not
elsewhere covered by this table
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The day this Act receives the Royal Assent.
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8 April 2011
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2. Schedules 1 and 2
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The later of:
(a) the day after this Act receives the Royal Assent; and
(b) 1 January 2011.
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9 April 2011
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Note: This table relates only to the provisions of
this Act as originally enacted. It will not be amended to deal with any later
amendments of this Act.
(2) Any information in Column 3 of the table
is not part of this Act. Information may be inserted in this column, or
information in it may be edited, in any published version of this Act.
3
Schedule(s)
Each Act that is specified in a Schedule
to this Act is amended or repealed as set out in the applicable items in the
Schedule concerned, and any other item in a Schedule to this Act has effect
according to its terms.
Schedule 1—Amendment of the Education Services for Overseas Students
Act 2000
Part 1—Amendments
1 Section 5 (definition of condition)
After “14A”, insert “or 14B”.
2 Section 5
Insert:
risk assessment of a provider means an
assessment of the risk of the provider being unable to satisfy the obligations
of a provider under this Act.
3 After subsection 9(1)
Insert:
(1A) A designated authority for a State must use
a risk‑management approach when considering whether to recommend that an
approved provider should be registered.
4 Subparagraph 9(2)(c)(iii)
Repeal the subparagraph, substitute:
(iii) states that the
provider has clearly demonstrated the capacity to provide education of a
satisfactory standard (including by having an appropriate business model and
access to adequate financial resources, for example); and
(iv) states the results of
the designated authority’s risk assessment of the provider; and
(v) states the conditions
(if any) that should apply to the provider’s registration for the course in the
State, in view of the results of that risk assessment; and
(vi) states the period (of
not more than 5 years) for which the provider should be registered for the
course in the State; and
5 At the end of section 9
Add:
(10) The Secretary may register an approved
provider for the period (of not more than 5 years) that the Secretary decides.
(11) However, if an approved provider’s
registration for a course is due to expire before the course has finished, the
provider’s registration does not expire until the provider has provided the
remainder of the course to the students who were enrolled in that course before
the registration was due to expire.
6 Subsection 9A(1)
Omit “that, as at the commencement of this section,”, substitute
“who”.
7 Subsection 14A(2)
Before “Minister”, insert “Secretary or”.
8 After section 14A
Insert:
14B
Secretary’s conditions on provider registration
(1) The Secretary, on the Secretary’s own
initiative, may impose a condition on a provider’s registration that the
Secretary considers necessary in view of a risk assessment made by:
(a) the Secretary; or
(b) the designated authority.
(2) The Secretary may impose the condition:
(a) when the provider is registered;
or
(b) at any time before the provider
stops being registered.
(3) The Secretary must inform the provider,
by written notice, of the Secretary’s decision to impose the condition.
9 Subsection 19(3) (note 1)
Omit “A breach of this section is also an offence: see section 104.”.
10 At the end of section 19
Add:
(5) A registered provider, or the principal
executive officer of a registered provider that is an unincorporated body, who
fails to comply with this section commits an offence.
Penalty: 60 penalty units.
(6) An offence under subsection (5) is
an offence of strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
11 Subsection 20(1) (note 1)
Omit “A breach of this section is also an offence: see section 104.”.
12 At the end of section 20
Add:
(6) A registered provider, or the principal
executive officer of a registered provider that is an unincorporated body, who
fails to comply with this section commits an offence.
Penalty: 60 penalty units.
(7) An offence under subsection (6) is
an offence of strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
13 Subsection 21(3) (note)
Omit “A breach of this section is also an offence: see section 105.”.
14 At the end of section 21
Add:
(5) A registered provider, or the principal
executive officer of a registered provider that is an unincorporated body, who
fails to comply with this section commits an offence.
Penalty: 60 penalty units.
(6) An offence under subsection (5) is
an offence of strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
15 After subsection 21A(1)
Insert:
(1A) A registered provider who fails to comply
with subsection (1) commits an offence.
Penalty: 60 penalty units.
(1B) An offence under subsection (1A) is an
offence of strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
16 At the end of section 28
Add:
(5) A registered provider who fails to comply
with this section commits an offence.
Penalty: 60 penalty units.
(6) An offence under subsection (5) is
an offence of strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
17 At the end of section 29
Add:
(5) A registered provider who fails to comply
with this section commits an offence (the primary offence), and
commits another offence (a subsequent offence) on each subsequent
day during which that failure continues, including a day of conviction for the
offence or any later day.
Penalty:
(a) for the primary offence—60 penalty
units; or
(b) for each subsequent offence—6
penalty units.
(6) An offence under subsection (5) is
an offence of strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
18 After subsection 93(1)
Insert:
(1A) Before making a decision to impose a
condition under subsection 14B(1), the Secretary must give the registered
provider a written notice that:
(a) states that the Secretary intends
to make that decision and why; and
(b) gives the registered provider at
least 72 hours to give the Secretary written submissions about the matter.
19 Subsection 93(2)
After “Minister” (wherever occurring), insert “or Secretary”.
20 At the end of subsection 96(1)
Add:
; or (d) a provider applies to the
Administrative Appeals Tribunal for review of a decision to suspend, cancel or
impose a condition on the provider’s registration.
21 Sections 104 and 105
Repeal the sections.
22 Before subsection 106(1)
Insert:
(1A) This section applies to an offence against:
(a) subsection 19(5); or
(b) subsection 20(6); or
(c) subsection 21(5); or
(d) subsection 21A(1A); or
(e) subsection 28(5); or
(f) subsection 29(5).
23 Subsection 106(1)
Omit “for an offence against subsection 104(1) or section 105”.
24 Section 119
Repeal the section.
25 Before section 170
Insert:
170A
Publishing results of enforcement and monitoring
(1) This section applies if the Minister,
Immigration Minister or Secretary takes action (including by exercising a
power) in relation to a provider:
(a) under Part 6, which deals
with enforcing this Act; or
(b) under Part 7, which deals
with the monitoring of providers.
(2) The Secretary may publish information
about:
(a) the action taken; and
(b) the results of taking that action,
including for example:
(i) recommendations for
improvements that are given to a provider; and
(ii) the action taken by
the provider to implement those recommendations.
(3) However, if the Secretary does publish
that information, the Secretary must ensure that:
(a) if the provider applies for review
of the decision to take the action—that fact, and the results of the review,
are also published; and
(b) the information is accurate and
kept up‑to‑date.
(4) The Secretary may decide the way in which
the publication is to be made (on the Department’s website, for example).
26 Paragraph 176(1)(aa)
After “14A”, insert “or 14B”.
Part 2—Transitional provision
27 Transitional provision—existing unlimited registrations
(1) This item applies to a person who, immediately
before this Schedule commences, is a registered provider.
(2) The provider’s registration expires 5 years after
this Schedule commences, unless the provider is sooner re‑registered.
Schedule 2—The Overseas Students Ombudsman
Part 1—Amendment of the Ombudsman Act 1976
1 Title
Omit “and a Postal Industry Ombudsman”, substitute “, a
Postal Industry Ombudsman and an Overseas Students Ombudsman”.
2 After Part IIB
Insert:
Part IIC—Establishment,
functions, powers and duties of the Overseas Students Ombudsman
Division 1—Preliminary
19ZF
Definitions
In this Part:
officer, of a private registered provider,
means a person who:
(a) is employed in the service of a
private registered provider; or
(b) is a member of the staff of a
private registered provider, whether or not the person is employed by a private
registered provider; or
(c) is authorised by a private
registered provider to exercise any powers, or perform any functions, of the
private registered provider (including a contractor, for example).
Overseas Students Act means the Education
Services for Overseas Students Act 2000.
principal executive officer has the same
meaning as in the Overseas Students Act.
private registered provider means a registered
provider, within the meaning of the Overseas Students Act, that is not owned or
administered by:
(a) the Commonwealth; or
(b) a State or Territory.
19ZG
Continued application of Part to former registered providers
(1) This section applies if:
(a) a private registered provider took
action at a particular time; and
(b) the Overseas Students Ombudsman
receives a complaint in relation to that action within 12 months after that
time; and
(c) after that time, the private
registered provider ceases to be a private registered provider for the purposes
of this Part.
(2) This Part applies, in relation to that
complaint, as if the private registered provider continued to be a private
registered provider.
19ZH
Part not to affect operation of other provisions of this Act
This Part does not, by implication,
affect the operation of other provisions in this Act.
Division 2—Establishment and functions of the Overseas Students
Ombudsman
19ZI
Establishment of office of Overseas Students Ombudsman
(1) For the purposes of this Act, there is to
be an Overseas Students Ombudsman.
(2) The office of Overseas Students Ombudsman
is to be held by the person who holds the office of Commonwealth Ombudsman.
(3) The reference in subsection (2) to
the person who holds the office of Commonwealth Ombudsman includes a reference
to a person for the time being acting in that office because of an appointment
under section 29.
19ZJ
Functions of Overseas Students Ombudsman
(1) The functions of the Overseas Students
Ombudsman are:
(a) to investigate complaints made to
him or her under this Act; and
(b) to give private registered
providers advice and training about the best practice for the handling of
complaints made by overseas students; and
(c) to perform such other functions as
are conferred on him or her by:
(i) this Act or the
regulations; or
(ii) another Act or
regulations made under another Act.
(2) Subject to this Act, the Overseas
Students Ombudsman:
(a) is to investigate action that he
or she is authorised by this Act to investigate and in respect of which a
complaint has been made to him or her; and
(b) may, on his or her own initiative,
investigate action that he or she is authorised by this Act to investigate.
(3) The Overseas Students Ombudsman is
authorised by this Act to investigate action taken by a private registered
provider in connection with an overseas student, an intending overseas student,
or an accepted student, within the meaning of the Overseas Students Act.
19ZK
Transfer of complaints
(1) This
section applies if:
(a) a
complaint has been made to the Overseas Students Ombudsman with respect to
action taken by a private registered provider; and
(b) the Overseas Students Ombudsman,
either before or after starting to investigate that action, forms the opinion
that:
(i) a statutory complaint
handler has the function of investigating, reviewing or enquiring into action
of that kind; or
(ii) a statutory office‑holder
has the function of investigating, reviewing or enquiring into action of that
kind.
(2) In the case of a statutory complaint
handler, the Overseas Students Ombudsman:
(a) must not investigate or further
investigate the action; and
(b) must transfer the complaint to the
statutory complaint handler.
(3) In the case of a statutory office‑holder,
if the Overseas Students Ombudsman considers the action could be more
conveniently or effectively dealt with by the statutory office‑holder, the
Overseas Students Ombudsman:
(a) may decide not to investigate or
further investigate the action; and
(b) if that decision is made, must
transfer the complaint to the statutory office‑holder.
(4) If the Overseas Students Ombudsman
transfers a complaint under this section, the Overseas Students Ombudsman must,
as soon as is reasonably practicable:
(a) give notice of the transfer to the
complainant; and
(b) give any information or documents
that relate to the complaint and are in the possession or under the control of
the Overseas Students Ombudsman to the statutory complaint handler or statutory
office‑holder.
(5) In this section:
statutory complaint handler means a person,
prescribed under the regulations, who has a function of investigating action
taken by a private registered provider in connection with an overseas student,
an intending overseas student, or an accepted student, within the meaning of
the Overseas Students Act.
statutory office‑holder means a person who
holds any office or appointment under a law of the Commonwealth, or under a law
of a State or Territory.
19ZL
Discretion not to investigate certain complaints
(1) This section applies if:
(a) a complaint has been made to the
Overseas Students Ombudsman with respect to action taken by a private
registered provider; and
(b) the
Overseas Students Ombudsman is of the opinion that:
(i) the complaint is
frivolous or vexatious or was not made in good faith; or
(ii) the complainant does
not have a sufficient interest in the subject matter of the complaint; or
(iii) an investigation, or
further investigation, of the action is not warranted having regard to all the
circumstances; or
(iv) the complainant has not
yet raised the complaint with the registered provider; or
(v) the action came to the
complainant’s knowledge more than 12 months before the complaint was made; or
(vi) the complainant has, or
had, a right to cause the action to which the complaint relates to be reviewed
by a court or by a tribunal constituted by or under an enactment but has not
exercised that right.
(2) The Overseas Students Ombudsman may, in
his or her discretion:
(a) decide not to investigate the
action; or
(b) if he or she has started to
investigate the action—decide not to investigate the action further.
Division 3—Powers and duties of the Overseas Students Ombudsman
19ZM
Application of other provisions of this Act to the Overseas Students Ombudsman
(1) Subject to this section, the provisions
covered by subsection (3) apply in relation to the Overseas Students
Ombudsman.
(2) Unless the contrary intention appears,
the provisions covered by subsection (3) apply as if:
(a) a reference in any of those
provisions to the Ombudsman were a reference to the Overseas Students
Ombudsman; and
(b) a reference in any of those
provisions to any of the following were a reference to a private registered
provider:
(i) a Department;
(ii) a prescribed
authority;
(iii) a Department or a
prescribed authority; and
(c) a reference in any of those
provisions to an officer were a reference to an officer within the meaning of
this Part; and
(d) a reference in any of those provisions
to a principal officer were a reference to a principal executive officer within
the meaning of this Part.
(3) The following provisions are covered by
this subsection:
(a) subsections 3(1) and (8);
(b) sections 3C and 3D;
(c) sections 6A to 7A;
(d) section 8, other than:
(i) paragraph (7A)(b);
and
(ii) subsections (8)
to (12);
(e) section 8A, other than subsections (1B)
to (1D);
(f) section 9, other than:
(i) paragraphs (1AA)(ab)
and (ac); and
(ii) paragraph (4)(ab);
(g) section 11A, other than subsections (1)
and (5);
(h) sections 12 to 14;
(i) section 18;
(j) section 19, other than subsection (8);
(k) subsection 31(1);
(l) section 33;
(m) section 34, other than
subsections 34(1) to (2A);
(n) section 35, other than paragraph (1)(e)
and subparagraph (3)(b)(ia);
(o) section 35AA;
(p) section 35A, other than subsection (3A);
(q) sections 35B to 38.
(4) Each provision of this Act specified in
column 1 of the table applies in relation to the Overseas Students Ombudsman in
accordance with the table:
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Application of Act to
Overseas Students Ombudsman
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Column 1
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Column 2
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Column 3
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Item
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This provision of this
Act ...
|
applies in relation to
the Overseas Students Ombudsman as if a reference in that provision to ...
|
were a reference to ...
|
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1
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subsection 7A(1)
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paragraph 5(1)(b)
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paragraph 19ZJ(2)(b)
|
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2
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subsection 11A(4)
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the Minister
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the Minister and the Minister administering the Overseas
Students Act
|
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3
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subsections 12(4) and (5)
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section 15
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section 19ZQ
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4
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section 18
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section 17
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section 19ZR
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5
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subsection 19(2)
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section 15, 16 or 17
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section 19ZQ or 19ZR
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6
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subsection 35(6A)
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paragraph 6(4A)(e), (4D)(e) or (18)(d)
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paragraph 19ZK(4)(b)
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7
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paragraph 35AA(1)(a)
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paragraph 5(1)(b)
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paragraph 19ZJ(2)(b)
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8
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subsection 35B(2) (paragraph (a) of the definition of
listed disclosure method)
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Division 2 of Part II
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section 19ZQ, 19ZR or 19ZS
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9
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subsection 35B(2) (paragraph (b) of the definition of
listed disclosure method)
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section 6A
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section 19ZK
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19ZN
Powers of the Overseas Students Ombudsman under section 9
The Overseas Students Ombudsman may
exercise his or her powers under section 9 for any of the following
purposes:
(a) to determine whether he or she may
investigate action under this Part;
(b) to decide whether or not to
investigate action, or to investigate action further, under this Part;
(c) to start or further the conduct of
an investigation under this Part;
(d) to prepare a report in relation to
an investigation under this Part;
(e) if he or she has exercised a power
for any of the purposes mentioned in paragraphs (a) to (d)—to ascertain
what action has been taken by a private registered provider following the
exercise of that power.
19ZO
Duty to accord procedural fairness
The Overseas Students Ombudsman must
comply with the rules of procedural fairness when exercising a power under this
Act.
Example 1: If the Overseas Students Ombudsman sets out a
critical opinion of a person in a report under section 19ZQ, he or she
must give that person an opportunity to appear and make submissions to him or
her (see subsection 8(5)).
Example 2: The Overseas Students Ombudsman must accord
procedural fairness to a person if he or she sets out a critical opinion of the
person:
(a) in disclosing information, or making a statement,
under subsection 35A(1); or
(b) in referring to an investigation in a report under
section 19ZS.
19ZP
Disclosure of identifying information
The Overseas Students Ombudsman must
not, in referring to an investigation in a report under section 19ZQ or
19ZS, disclose the name of a complainant or any other matter that would enable
a complainant to be identified, unless it is fair and reasonable in all the
circumstances to do so.
19ZQ
Overseas Students Ombudsman may report to private registered provider
(1) This section applies if:
(a) an investigation under this Act
into action taken by a private registered provider has been completed; and
(b) the Overseas Students Ombudsman is
of the opinion that the action taken:
(i) appears to have been
contrary to law; or
(ii) was unreasonable,
unjust, oppressive or improperly discriminatory; or
(iii) was otherwise, in all
the circumstances, wrong; and
(c) the Overseas Students Ombudsman is
of the opinion that:
(i) some particular action
could be, and should be, taken to rectify, mitigate or alter the effects of the
action taken; or
(ii) a policy or practice
on which the action taken was based should be altered; or
(iii) reasons should have
been, but were not, given for the action taken; or
(iv) any other thing should
be done in relation to the action taken.
(2) The Overseas Students Ombudsman must
report accordingly to the private registered provider.
(3) The Overseas Students Ombudsman:
(a) must include in the report his or
her reasons for the opinions specified in the report; and
(b) may also include in the report any
recommendations he or she thinks fit to make.
(4) The Overseas Students Ombudsman may ask
the private registered provider to give him or her, within a specified time,
particulars of any action that the private registered provider proposes to take
with respect to the matters and recommendations included in the report.
(5) The private registered provider may give
the Overseas Students Ombudsman comments about the report.
(6) The Overseas Students Ombudsman must give
a copy of:
(a) the report; and
(b) any comments given under subsection (5);
to the Minister administering the Overseas Students Act.
19ZR
Minister to table certain reports in Parliament
(1) This section applies if:
(a) the Overseas Students Ombudsman
has given a report under section 19ZQ to a private registered provider;
and
(b) action that is, in the opinion of
the Overseas Students Ombudsman, adequate and appropriate in the circumstances
is not taken with respect to the matters and recommendations included in the report
within a reasonable time after the report was given to the private registered
provider.
(2) The Overseas Students Ombudsman may
request the Minister administering the Overseas Students Act to cause copies of
the report to be laid before each House of the Parliament.
(3) If the Overseas Students Ombudsman makes
a request under subsection (2), the Minister administering the Overseas
Students Act must cause copies of:
(a) the report; and
(b) any comments given under
subsection 19ZQ(5) before the request was made;
to be laid before each House of the Parliament within 15
sitting days of that House after that Minister receives the request.
19ZS
Annual reports
(1) The Overseas Students Ombudsman has the
same powers and duties under this section as the Ombudsman has under
subsections 19(1) to (7B) with respect to the submission of reports relating
to:
(a) his or her operations; and
(b) the exercise of his or her powers
and the performance of his or her functions.
(2) For the purposes of subsection (1),
the powers and duties of the Ombudsman do not include his or her powers and
duties with respect to reports relating to the Australian Capital Territory.
(3) A report relating to the operations of
the Overseas Students Ombudsman during a year may be included in a report under
section 19 relating to the operations of the Ombudsman during that year.
(4) A report relating to the operations of
the Overseas Students Ombudsman during a year must:
(a) identify the number of complaints
received by the Overseas Students Ombudsman under this Part during that year;
and
(b) if the Overseas Students Ombudsman
has investigated action under paragraph 19ZJ(2)(a)—identify:
(i) the number of the
investigations started during that year; and
(ii) the number of the
investigations completed during that year; and
(c) if the Overseas Students Ombudsman
has investigated action under paragraph 19ZJ(2)(b)—identify:
(i) the number of the
investigations started during that year; and
(ii) the number of the
investigations completed during that year; and
(d) identify:
(i) the number of times
when the Overseas Students Ombudsman has made a requirement of a person under
section 9 during that year; and
(ii) the circumstances in
which each of those requirements was made.
(5) A report relating to the operations of
the Overseas Students Ombudsman during a year may include:
(a) details of the circumstances and
number of occasions where the holder of the office of Overseas Students
Ombudsman has decided, under section 19ZK, to transfer a complaint to a
statutory complaint handler or statutory office‑holder; and
(b) details of recommendations made
during that year in reports under section 19ZQ; and
(c) statistical information about
actions taken during that year as a result of such recommendations; and
(d) details of action that the
Overseas Students Ombudsman took during the year to promote best practice in
dealing with complaints; and
(e) details of the Overseas Students
Ombudsman’s observations regarding:
(i) any trends in complaints;
or
(ii) any broader issues
that arise from investigations.
19ZT
Overseas Students Ombudsman may notify of misconduct
(1) This section applies if the Overseas
Students Ombudsman forms the opinion, either before or after completing an
investigation under this Act, that there is evidence that a person who is an
officer of a private registered provider has engaged in misconduct.
(2) If the Overseas Students Ombudsman is of
the opinion that the evidence is, in all the circumstances, of sufficient force
to justify his or her doing so, the Overseas Students Ombudsman may bring the
evidence to the notice of the principal executive officer of the private
registered provider.
19ZU
Limitation on liability where information or documents provided in good faith or
when required to do so
(1) A person
is neither liable to a proceeding, nor subject to a liability, under an
enactment merely because the person, in good faith and in relation to the
Overseas Students Ombudsman’s functions or powers:
(a) gives information to the Overseas
Students Ombudsman (other than in accordance with a requirement under section 9);
or
(b) gives a document or other record
to the Overseas Students Ombudsman (other than in accordance with a requirement
under section 9).
Note: For information, documents or other records
given in accordance with a requirement under section 9, see subsections
9(4) and (5).
(2) To avoid doubt, subsection (1) does
not prevent the person from being liable to a proceeding, or being subject to a
liability, for conduct of the person that is revealed by the information,
document or record given to the Overseas Students Ombudsman.
(3) This section does not limit section 37.
3 After subsection 34(2A)
Insert:
(2B) The Overseas Students Ombudsman may, either
generally or as otherwise provided by the instrument of delegation, by
instrument in writing, delegate to a person all or any of his or
her powers under this Act, other than his or her powers under sections 19ZQ
and 19ZR and his or her powers referred to in section 19ZS.
4 Subsections 34(3) and (4)
Repeal the subsections.
Part 2—Amendment of the Privacy Act 1988
5 At the end of paragraph 50(2)(a)
Add:
(iv) to the Overseas
Students Ombudsman under the Ombudsman Act 1976; or
6 Subsection 50(2)
After “, the Postal Industry Ombudsman” (wherever occurring),
insert “, the Overseas Students Ombudsman”.
7 At the end of paragraph 50(3)(a)
Add:
(iv) to the Overseas
Students Ombudsman under the Ombudsman Act 1976; or
Part 3—Transitional provisions
8 Application of Part 1
The amendments made by Part 1 of this Schedule apply in
relation to action taken by a private registered provider before or after this
Schedule commences.
9 Transitional provision—reports under section 19ZS
The first report under section 19ZS of the Ombudsman Act
1976 relating to the operations of the Overseas Students Ombudsman during a
year must relate to the operations of the Overseas Students Ombudsman during
the period that:
(a) started on the commencement of
this Part; and
(b) ended on the 30 June first
occurring after that commencement.
[Minister’s second reading speech made in—
Senate on 27 October 2010
House of Representatives on 3 March 2011]