House of Representatives

Explanatory Memorandum

(Circulated by the authority of the Minister for Education and Youth, the Honourable Alan Tudge MP)

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Education Legislation Amendment (2021 Measures No. 2) Bill 2021

The Education Legislation Amendment (2021 Measures No. 2) Bill 2021 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 purpose of the Education Legislation Amendment (2021 Measures No. 2) Bill 2021 (the Bill) is primarily to amend the Higher Education Support Act 2003 (HESA) and make minor amendments to the Education Services for Overseas Students Act 2000 (ESOS Act).

The HESA amendments enable former permanent humanitarian visa holders who transition to a resident return visa to retain their eligibility for Higher Education Loan Program (HELP) assistance. It also makes minor technical amendments to improve and update the operation of HESA by aligning provisions across all HELP programs for student protection measures, clarifying references to Indigenous languages, streamlining the operation of grant funding, and clarifying the operation of grandfathering arrangements.

HESA is the main piece of legislation governing Commonwealth funding of higher education in Australia. HESA facilitates the provision of Commonwealth financial support to higher education providers through Government subsidies and provides loans to higher education students to cover their tuition and other fees.

Schedule 1, Part 1 of the Bill amends the citizenship or residency requirements for HELP under HESA to allow the Minister to extend the availability of HELP from 1 January 2022, via legislative instrument, to holders of certain visas (such as resident return visas), who previously held permanent humanitarian visas, where that visa was not cancelled.

HELP is available to higher education students meeting the citizenship or residency requirements of HESA, which includes permanent humanitarian visa holders. Permanent humanitarian visa holders who travel outside of Australia outside of the travel facility of their visa must apply for a resident return visa to continue to have permanent residence in Australia on their return. The resident return visa is a permanent visa, and permanent visa holders are not generally eligible for HELP. As a permanent humanitarian visa holder in this situation would have retained their HELP eligibility if they had not travelled outside of their travel facility, this measure allows commencing or continuing students who are former permanent humanitarian visa holders to retain their eligibility for HELP loans.

Schedule 1 of the Bill also includes the following minor and technical amendments to HESA:

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Part 2 amends Division 36 of HESA to make it a condition of a provider's Part 2-2 (Commonwealth Grant Scheme) funding that, if a person's HELP balance is re-credited under sections 97-45 or 97-50 of HESA, the provider must refund any upfront payments made by the person and must repay the Commonwealth any payment it received related to the person's re-credited HELP loan. This Part also repeals section 96-5 of HESA which is no longer required due to the amendments being made to Division 36 and makes other minor consequential amendments to HESA;

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Part 3 amends Division 41 of HESA to streamline the provision of grants under Part 2-3 of HESA. Specifically, this Part:

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amends section 41-25 of HESA to provide that a grant made under Part 2-3 of HESA may be made on conditions set out in the Other Grants Guidelines and on any conditions determined by the Minister (previously conditions had to be set out in the Other Grants Guidelines or as determined by the Minister, but could not be both);

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amends section 41-40 of HESA to provide that any unspent Part 2-3 grant amounts for a year will be rolled over automatically unless the Secretary of the Department of Education, Skills and Employment (Department) determines otherwise (previously the Secretary had to determine that a grant amount for a year could be rolled over); and

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repeals section 41-50 of HESA which required the Minister to prepare a legislative instrument setting out the maximum amounts of all grants which may be paid in the following year for each purpose of grant specified in the table in section 41-10, as this instrument is no longer required (noting a similar instrument is already required under subsection 41-45(1B)); and

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Part 4 amends section 46-35 of HESA to provide that any unspent Part 2-4 grant amounts for a year will be rolled over automatically unless the Secretary of the Department determines otherwise (previously the Secretary had to determine that a grant amount for a year could be rolled over);

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Part 5 amends:

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subsections 19-36B(2) and 19-36C(2) of HESA to refer to all assistance payable under Chapter 3 of HESA (rather than only FEE-HELP assistance) - this makes a technical correction and ensures these measures are extended to all providers under HESA;

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sections 30-15, 33-10 and 93-10 of HESA to replace the words 'Foreign Languages' with 'Indigenous and Foreign Languages' - this makes a technical correction to clarify that Indigenous languages are included in funding cluster 3 and that Indigenous languages are not foreign languages; and

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Schedule 1 of HESA to update the definition of 'grandfathered student' to clarify that an 'ongoing course' includes a course that has been restructured by a higher education provider and to ensure that students do not lose their status as grandfathered students as a result of a default by a provider.

Schedule 2 of the Bill amends the ESOS Act to clarify and extend its application to former registered providers, and make other minor and technical amendments.

The Tuition Protection Service (TPS) assists overseas students in instances when an education provider is unable to fully deliver a course of study. The TPS assists students either to complete their studies with an alternative education provider, or receive a refund of unspent tuition fees. The TPS Director is appointed by the Minister and oversees the operation of the TPS.

Education providers are required to retain student tuition fees they receive before the student commences the course, as a protected amount in an account maintained in accordance with section 28 of the ESOS Act. This ensures there is a sufficient amount of funds in a provider's account to meet their tuition fee repayment obligations under the ESOS Act. Providers must have sufficient financial resources to repay all paid tuition fees from every overseas or intending overseas student who has not yet begun their course. This ensures that, if the student does not proceed or if a provider closes, funds are available to repay their prepaid tuition fees.

This Bill strengthens the operation of the ESOS Act by clarifying and extending its application to former registered providers, enabling matters that arose during a provider's Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) registration period (as a registered provider) to be resolved after CRICOS registration has ceased. Former registered providers will still be required to meet certain obligations under the ESOS Act. These obligations include maintaining the protected amount beyond their CRICOS registration to enable refunds of overseas student tuition fees. This means that obligations to provide assistance to students cannot be extinguished by a provider ending their CRICOS registration.

The Bill also clarifies the policy intention for the protected amount to be used to repay any debts to the TPS Director that have arisen due to the TPS Director having provided refunds to students where a provider failed to meet an obligation to do so. If there is not sufficient money held in the account, providers and liquidators will still be required to pay the amount through other means.

Requiring providers in liquidation to pay back the TPS Director, from the protected amount, for refunds the Director paid from the Overseas Students Tuition Fund will reduce imposts on the Overseas Students Tuition Fund, increasing its sustainability over time and limiting the likelihood that it will need to be 'topped up' from the public purse.

Other minor amendments will facilitate the efficient functioning of the ESOS legislative framework. The Bill repeals section 20 which had become redundant after a change in student visa policy from an automatic to discretionary cancellation of a student visa for unsatisfactory course attendance or progress. This change meant that the notices referred to in section 20 would no longer need to be provided. The change in processes had previously been managed by adding subsection 20(4A), which explicitly forbade the sending of the notices, but this approach has caused confusion among providers. A student's visa will continue to be considered for cancellation under the existing discretionary visa cancellation framework in the Migration Act 1958 if they do not meet the course attendance or progress conditions of their visa. Repealing section 20 is a more appropriate legislative approach to enact this policy intent and end provider confusion.

To inform the operation of the discretionary visa cancellation framework, providers will continue to have an obligation to report students who do not comply with the course attendance or course progress requirements through the Provider Registration and International Student Management System. Students must continue to be informed in writing of the intention to report and be able to access a complaints and appeals process under the National Code of Practice for Providers of Education and Training for Overseas Students 2018.

The Bill also makes a technical amendment to section 8 of the ESOS Act to clarify the elements of the offence of providing or promoting a course without a registered provider, including that it is the responsibility of the prosecution to prove that a provider is not registered to deliver a course at a particular location. This amendment clarifies the Government's existing policy intent for the application of this provision.

Analysis of human rights implications

The Bill engages the following human rights:

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the right to education - Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR);

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freedom of movement - Article 12 of the International Covenant on Civil and Political Rights (ICCPR);

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the right to equality and non-discrimination - Article 26 of the ICCPR; and

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the right of minorities to practice their own language - Article 27 of the ICCPR.

Article 13: Right to Education

The Bill engages the right to education, which is set out in Article 13 of the ICESCR. Article 13 recognises the important personal, societal, economic and intellectual benefits of education, and provides that secondary education in its different forms, including higher education, shall be made generally available and accessible to all by every appropriate means.

Schedule 1 of the Bill promotes the right to education through preserving the availability of HELP loans for permanent humanitarian visa holders, where they transition to a resident return visa. This measure will allow these students to continue to engage in their higher education studies by making tertiary study less expensive and therefore more accessible. It will also ensure former permanent humanitarian visa holders can continue to improve on their higher education qualifications and experience, as well as creating opportunities to make meaningful economic and productive contributions in their own lives and to Australian society.

Schedule 2 of the Bill promotes the right to education by clarifying the policy intent of existing provisions in the ESOS Act that serve to enhance Australia's quality education and training services for overseas students. A strong international education system, which includes appropriate protections for overseas students, allows Australia to promote and support the right to education. The amendments also assure the efficient functioning of the TPS, which provides important tuition assurance and refunds for overseas students for courses for which they have paid.

Article 12: Freedom of Movement

The Bill also engages the right to free movement set out in Article 12 of the ICCPR, which provides that a person lawfully within the territory of a State (i.e. country) shall be free to move around that State and shall not be prevented from leaving that State.

Schedule 1 preserves and promotes this right by ensuring that permanent humanitarian visa holders are not penalised when they lawfully travel outside Australia. The citizenship and residency requirements of HESA in their current form have the unintended potential to create negative consequences for individuals on permanent humanitarian visas who lawfully exit and return to Australia outside of their five-year travel facility on their visa, as they lose access to HELP. This has the potential to limit a person's freedom of movement under the ICCPR, as these individuals may avoid travelling in order to retain their access to HELP. The Bill removes this potential limitation by ensuring these individuals retain access to HELP, through extending eligibility to former permanent humanitarian visa holders now on resident return visas, allowing their freedom of movement to be protected and preserved.

Article 26: Right to Equality and Non-discrimination

This Bill engages Article 26 of the ICCPR which states that 'the law shall prohibit any discrimination and guarantee to all persons equal protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status'.

Schedule 1 promotes the right to equality and non-discrimination by aligning the right to access HELP for permanent humanitarian visa holders with those of Australian citizens and New Zealand citizens on Special Category Visas. In its present form, Australian citizens and New Zealand citizens on a Special Category Visa may exit and return to Australia whilst maintaining their access to HELP. Permanent humanitarian visa holders do not enjoy this same right in conjunction with an uninhibited freedom of movement outside of Australia. This amendment remedies this, by allowing resident return visa holders on the humanitarian stream to retain access to HELP.

Article 27: The right of minorities to practice their own language

The Bill supports the right of minorities to practice their own language, enshrined in Article 27 of the ICCPR, which states that 'in those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.'

The measure contained in Schedule 1 protects and preserves the status and funding of Indigenous languages as non-foreign languages. Doing so promotes education in Indigenous languages and takes steps to preserve those languages.

Conclusion

The Bill is compatible with human rights because it promotes those rights or, to the extent that it may limit human rights, the limitations are reasonable, necessary and proportionate.