House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Education, the Hon Jason Clare MP)

GLOSSARY

OUTLINE

Overview

The Bill amends Education portfolio Acts to strengthen the quality, integrity and sustainability of the delivery of education in Australia, and improve equity and access in higher education, particularly for First Nations peoples. This includes amendments to:

•

the Education Services for Overseas Students Act 2000 (ESOS Act), including to address issues identified in the Rapid Review into the Exploitation of Australia's Visa System (the Nixon Review) and the Government's Migration Strategy;

•

the Tertiary Education Quality and Standards Agency Act 2011 (TEQSA Act), to ensure registered providers that are delivering courses outside Australia are authorised by the Tertiary Education Quality and Standards Agency (TEQSA), in alignment with the 2023 Australian Universities Accord's recognition of TEQSA's role in strengthening quality and accountability in the sector;

•

the Higher Education Support Act 2003 (HESA) to introduce demand driven Commonwealth supported places for courses of study in medicine for eligible First Nations students from 2026. This new demand-driven funding will train First Nations doctors, helping to bring First Nations participation in medicine to population parity.

The Bill also amends the A New Tax System (Family Assistance) (Administration) Act 1999 (Family Assistance Administration Act) to promote transparency and integrity in the early childhood education and care (ECEC) sector. This includes amendments to:

•

support the collection of data for the Early Education Service Delivery Prices project to provide a data-driven understanding of the reasonable costs of delivering safe and quality early education and ensure future reforms are robust and evidence based;

•

strengthen the integrity of current ECEC data governance arrangements which will ensure continuity in data reporting and support transparency;

•

ensure the date of effect for decisions relating to the CCS reconciliation process under the Act align with the date of effect in the CCS system; and

•

make minor technical amendments.

International education integrity measures (Schedule 1, Parts 1-8)

Parts 1 to 8 of Schedule 1 to the Bill amend the ESOS Act to support the quality, integrity and sustainable growth of the international education sector:

•

Introducing a requirement for ESOS agencies to consider whether:

o

a provider has any ownership or control of an education agent, and their activities, and

o

an education agent, or an associate of the education agent, has any ownership or control of a provider,

in assessing whether the provider is fit and proper to be registered;

•

requiring providers to give education agent commission information to the Secretary of the Department of Education (Secretary) and expanding the ability of the Secretary, or an ESOS agency, to give information to registered providers about education agents;

•

giving the Minister for Education (Minister) powers to determine how initial applications for the registration of providers, and for registration of courses by registered providers, are to be managed by ESOS agencies;

•

requiring providers, prior to applying for registration of courses under the ESOS Act, to deliver one or more courses exclusively to domestic students (i.e. not overseas students) for consecutive study periods totalling two (2) years;

•

enabling the automatic cancellation of a registered provider's registration where courses have not been delivered to overseas students for 12 consecutive months;

•

setting out another new requirement in the fit and proper provider test for ESOS agencies to consider whether a provider is under investigation for a specified offence so that, if an ESOS agency determines that the provider is not fit and proper, the provider's registration is automatically suspended;

•

enabling the automatic suspension and cancellation of courses at non-Table A providers that are identified by the Minister in a legislative instrument as having systemic issues in relation to the standard of delivery of the course, or courses that provide limited value to Australia's skills and training needs and priorities, or courses that it is in the public interest to cancel;

•

extending the time for ESOS agencies to review a decision made under the ESOS Act from 90 days to 120 days; and

•

allowing ESOS agencies to implement an interim stay of a decision made under the ESOS Act while the decision is under internal review.

These amendments affect higher education providers, Vocational Education and Training (VET) providers and schools providing education services to overseas students and are related to reforms to Australia's migration system. Where possible, the amendments also align with amendments addressing integrity issues specific to the VET sector in the National Vocational Education and Training Regulator Amendment (Strengthening Quality and Integrity in Vocational Education and Training No. 1) Act 2024, supporting whole-of-government priorities.

All the measures in Parts 1 to 8 of Schedule 1 to the Bill enable the Government to uphold the quality and integrity of Australia's international education sector. The measures will support the Government to determine the appropriate settings and priorities for the size, shape and focus of the international education sector, taking into account Australia's broader economic and social considerations.

TEQSA measure (Schedule 1, Part 9)

Part 9 of Schedule 1 to the Bill amends the TEQSA Act to support greater regulatory oversight of the delivery of higher education courses offshore by Australian education providers. The amendments will require providers to:

•

receive authorisation from TEQSA before being permitted to deliver courses offshore;

•

notify TEQSA of any new or changed offshore delivery arrangements; and

•

provide information to TEQSA regarding their offshore delivery arrangements on a yearly basis.

Australia is a global leader in offshore delivery of higher education. Australian higher education providers are increasingly delivering education offshore to diversify across new markets and course offerings and are embracing more innovative delivery models. This expansion of high-quality offshore delivery is a key priority to support the sustainability of the international education sector. Offshore delivery also enables Australian higher education providers to extend their academic reach and foster international collaboration, while enhancing the reputation of Australian education more broadly.

These amendments will support Australian offshore education to stay ahead of the curve and uphold Australia's reputation as a top-tier education provider. They will provide assurance that Australian higher education programs delivered offshore maintain the high standard of our onshore programs and continue to provide the high-quality academic and student experiences Australia is known for. The requirements set out in these amendments will provide continued assurance to offshore governments and partner institutions that Australian providers have the strong governance structures and regulatory oversight needed to deliver high-quality offshore education in a dynamic and evolving sector. The amendments are designed to provide adequate oversight of offshore arrangements while also minimising the regulatory burden on Australian providers. The amendments are light-touch, set transitional arrangements that take into account existing offshore arrangements, and take into account information that providers already hold.

First Nations medical students measure (Schedule 1, Part 10)

Part 10 of Schedule 1 to the Bill amends the Higher Education Support Act 2003 (HESA) to uncap places in medical courses for First Nations students so that all First Nations students who meet the entry requirements to enrol in courses in medicine can be enrolled in a Commonwealth supported place. The amendments respond to the recommendation 3(b) of the Australian Universities Accord Final Report, which recommended the Australian Government provide places for all First Nations students who apply and meet entry requirements for a medical degree.

The measure will expand educational opportunities by allowing higher education providers to enrol more First Nations medical students.

The measure will also help to address the underrepresentation of First Nations people in Australia's health workforce. In 2023, roughly 0.6 per cent of doctors identified as Aboriginal or Torres Strait Islander, despite being 3.8 per cent of the Australian population.

Evidence shows that the First Nations health workforce delivers better health outcomes for First Nations patients. This comes down to the unique skill sets and cultural insights of First Nations health workers increasing cultural safety in healthcare settings. First Nations doctors are also more likely to practise in Aboriginal Community Controlled Health Services and in regional, rural and remote communities.

Growing the First Nations health workforce will support the Government's commitments under the National Agreement on Closing the Gap.

Early Education Service Delivery Prices Project measure (Schedule 2, Part 1)

The Bill amends the A New Tax System (Family Assistance) (Administration) Act 1999 (Family Assistance Administration Act) to expand the Secretary's information gathering powers to support the Early Education Service Delivery Prices Project (SDP Project). The amendment enables the Secretary to issue a notice to compel those ECEC providers that are constitutional corporations to provide financial, cost and pricing related information, or any other information the Secretary reasonably believes is necessary for the SDP Project. The large majority of providers are corporate bodies of a kind referred to in section 51(xx) of the Constitution.

In the first instance, this information will be sought voluntarily from all types of ECEC providers to the greatest extent possible. Support will be available to assist providers to provide the necessary information, including in response to a notice issued under the Secretary's new power. A notice can only be issued if the Secretary reasonably believes that an approved provider is capable of giving the information.

The amendment is necessary to enable the Department of Education and the Australian Government to collect relevant information for the SDP project and understand the reasonable cost of safe and quality ECEC service delivery. The amendment ensures that the data collected can be used to meaningfully inform ECEC policy and funding reforms – and ensure the success of future measures for building a universal and safe ECEC system.

Protected information measure (Schedule 2, Part 2)

The Bill amends the Family Assistance Administration Act to expand the scope to use and disclose protected information collected under the Act. This supports the Government's broader policy objective of optimising public data through the safe, ethical, and lawful release of data as set out in the Intergovernmental Agreement on Data Sharing endorsed by all jurisdictions in 2021. In particular, it supports collaboration with the public, private, and research sectors to extend the value of this data for the benefit of the Australian public.

These amendments to the Family Assistance Administration Act are intended to strengthen the integrity of current ECEC data governance arrangements by clarifying data sharing arrangements and appropriately targeting data aggregation strategies. This will ensure continuity in data reporting and support transparency.

Specifically, these amendments expand the authorisations for the handling of protected information. The amendments authorise the use and disclosure of protected information if the Secretary considers this reasonably necessary for research; statistical analysis; or policy development of matters of relevance to a department administering the family assistance law.

The amendments broaden the scope to use and disclose protected information relating to approved providers and services. This ensures that protected information can be used and disclosed if it relates to an approved provider or service and has already been made lawfully available to the public. In addition, the amendments authorise the use and disclosure of aggregated protected information relating to approved providers and services so long as it does not directly identify a particular approved provider or service.

The amendments also broaden the Secretary's powers to publish information relating to an approved provider. The Secretary will be empowered to publish information in relation to an approved provider or service if satisfied that the information will promote transparency and accountability regarding the administration of CCS or quality and safety or encourage compliance with the family assistance law. Examples of the information the Secretary will be able to publish about a provider includes the type of services in respect of which the provider is approved, the number of children enrolled at the services and the address and contact details of the services. The amendments also enable the Secretary to authorise another Commonwealth, State or Territory body to publish the information. These changes are intended to promote transparency and facilitate easier access to information about providers to assist families to make decisions about early education and care.

Technical amendments to the Family Assistance Administration Act (Schedule 2, Part 3)

The Bill will make two technical amendments. The first amends paragraph 137A(1)(b) of the Family Assistance Administration Act to ensure a consistent approach is taken on internal review and on Administrative Review Tribunal (ART) review of entitlement to be paid CCS or Additional Child Care Subsidy (ACCS) in relation to information that is not to be taken into account when there are favourable changes to an individual's circumstances. The second is to include section 71DA of the Family Assistance Administration Act (debts in respect of CCS or ACCS – absences before first attendance or after last attendance) within the definition of 'debts' for the purpose of section 82. This is a consequential amendment that was inadvertently not included at the time section 71DA was inserted into the Act.

Date of effect measure (Schedule 2, Part 4)

The Bill makes retrospective amendments to the Family Assistance Administration Act to ensure that the date of effect of CCS entitlement and eligibility decisions under the Act relating to end-of-financial year reconciliation processes align with the date these decisions take effect in the CCS system (the 'date of effect measure'). The CCS system is the online system used to administer the CCS. It holds records such as enrolments and session reports and is used to calculate payments for families.

CCS reconciliation is a key part of program integrity, and its purpose is to ensure individuals receive the correct CCS entitlement for a financial year. Currently, if an individual does not meet the CCS reconciliation deadlines, the date of effect for ceasing or re-instating their CCS entitlement and/or eligibility in the CCS system is the first Monday of the next CCS fortnight. This current practice aligns with CCS policy intent and is simple for families to understand, noting most CCS entitlement and eligibility decisions take effect from the following CCS Monday.

However, the dates of effect in the CCS system for three types of decisions concerning the reconciliation of CCS entitlements do not align with the dates of effect under the Family Assistance Administration Act. As a result of the discrepancy, individuals who have failed to meet the deadlines have either been over or underpaid CCS for up to two weeks.

The retrospective amendments ensure that the relevant decisions for CCS reconciliations were validly made. The amendments waive any debts that may have arisen as a result of the misalignment. This prevents the need for recovery action to be taken against families who were overpaid. The amendments also mean that families were not underpaid as a result of the discrepancy. To mitigate any potential adverse impact on individuals, the amendments provide a mechanism for individuals to seek compensation if they can show that the retrospective amendments resulted in an acquisition of their property other than on just terms.

In addition, the amendments clarify that the CCS system can make an automated decision to cease an individual's CCS eligibility if they have failed to meet the second reconciliation deadline.

FINANCIAL IMPACT STATEMENT

International education integrity measures (Schedule 1, Parts 1-8)

The international education integrity measures in Parts 1 to 8 of Schedule 1 to the Bill will have no financial impact.

TEQSA measure (Schedule 1, Part 9)

Cost recovery arrangements in relation to the TEQSA measure in Part 9 of Schedule 1 to the Bill will be implemented from 2027, with costs prior to this date absorbed by TEQSA, resulting in no net financial impact.

First Nations medical students measure (Schedule 1, Part 10)

The First Nations medical students measure in Part 10 of Schedule 1 to the Bill is estimated to have the following impact on the underlying cash balance over the forward estimates period ($m):

Date of effect measure (Schedule 2, Part 4)

Pursuing retrospective amendments will mean there will likely be nil cost to the Commonwealth. To mitigate any risk that the retrospective amendments could be found to result in the unjust acquisition of property, the amendments provide a mechanism for individuals to take action to require the Commonwealth to pay compensation, if it is shown that the retrospective amendments have this result.

Other Early Childhood Education and Care measures (Schedule 2, Parts 1-3)

There are no financial impacts resulting from the Early Education Service Delivery Prices Project measure, protected information measure or technical amendments.

CONSULTATION

International education integrity measures (Schedule 1, Parts 1-8)

The Department of Education (the department) engaged with and received extensive feedback from sector representatives on the international education integrity measures.

The department has consistently engaged with Government agencies over the course of the development of these measures, including:

•

TEQSA and Australian Skills Quality Authority (ASQA), for all matters relevant to ESOS agencies;

•

the Department of Home Affairs and the Office of the Migration Agents Registration Authority, for matters relating to the Migration Act 1958;

•

the Department of Employment and Workplace Relations for matters relating to the National Vocational Education and Training Regulator Act 2011; and

•

the Department of Foreign Affairs and Trade for matters relating to Australia's free trade obligations.

Parts 1-7 of Schedule 1 are substantially the same as Parts 1-6 and 8 of the Education Services for Overseas Students Amendment (Quality and Integrity) Bill 2024. This Bill was referred to the Senate Standing Committee for Education and Employment, which undertook an inquiry into this Bill. The inquiry received 196 submissions and held four hearings, where sector representatives expressed their views on the measures in Parts 1 to 7 of Schedule 1 to this Bill.

Furthermore, the department undertook a public consultation process in 2024 relating to the Draft International Education and Skills Strategic Framework, during which the department received written submissions, conducted webinars and engaged directly with sector bodies.

The views put forward over the course of these public consultation processes have been taken into account to fine-tune the measures in the Bill. For example, wording in Parts 4 and 5 of Schedule 1 has been changed to clarify the meaning of terms that sector bodies reported were ambiguous.

TEQSA measure (Schedule 1, Part 9)

In relation to the TEQSA measure in Part 9 of Schedule 1 to the Bill, the department conducted targeted consultations with experienced and highly engaged Australian providers delivering offshore. Key stakeholders were supportive of the Government's approach to ensuring the growth and continued delivery of high-quality Australian education offshore.

Key stakeholders also recognised the importance of ensuring and maintaining Australia's global reputation as a top-tier education provider and that these amendments will ensure Australia's offshore programs maintain the high quality and standard of onshore programs, and continue to provide positive student and academic experiences.

These amendments pave the way for the Government's consultation and wider review of the future regulation of Australian higher education under the TEQSA Act. The TEQSA Act is the establishing legislation for TEQSA's role and functions as Australia's independent, national regulator of higher education and will be reviewed for the first time since its establishment.

First Nations medical students measure (Schedule 1, Part 10)

The Government has consulted with sector representatives Medical Deans Australia and New Zealand (MDANZ) on the First Nations medical students measure. MDANZ was supportive of this measure and the expansion of educational opportunities for First Nations students in the field of medicine.

The Department of Education has engaged with the Department of Health, Disability and Ageing and Department of Finance over the course of the developing the amendments. Both share the Australian Government's commitment to increasing educational opportunities for First Nations students and are supportive of the measure.

Early Childhood Education and Care measures (Schedule 2, Parts 1-4)

Consultation with key stakeholders (providers and peak bodies) on ECEC measures contained in the Bill was undertaken through the existing ECEC Reference Group.

Early Education Service Delivery Prices Project measure (Schedule 2, Part 1)

A limited number of trusted ECEC peak bodies and providers have been consulted on the broad parameters of the amendment. These stakeholders generally acknowledged such a power is likely to be beneficial to the project, while acknowledging it will also be sensitive.

Protected information measure (Schedule 2, Part 2)

Consultation regarding the amendments occurred with state and territory government representatives through the ECEC Data Sharing Working Group. These stakeholders share the Australian Government commitment to maximising the use of public data through the safe, ethical, and lawful release of ECEC data.

The department consulted with the Department of Social Services (which jointly administers the Family Assistance Administration Act) and with Services Australia and the Attorney-General's Department.

Date of effect measure (Schedule 2, Part 4)

Legislative amendments for the date of effect measure were drafted in close consultation with Services Australia.

IMPACT ANALYSIS

The Improving Integrity in the International Education Sector Policy Impact Analysis (relating to Parts 1-6 of Schedule 1 to the Bill) is attached at the end of this Explanatory Memorandum (OIA23-05969).

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

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

Education Legislation Amendment (Integrity and Other Measures) Bill 2025

The Education Legislation Amendment (Integrity and Other Measures) Bill 2025 (the Bill) 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

International education integrity measures (Schedule 1, Parts 1-8)

Parts 1 to 8 of Schedule 1 to the Bill amend the Education Services for Overseas Students Act 2000 (ESOS Act) to support the quality, integrity and sustainable growth of the international education sector:

•

Introducing a requirement for ESOS agencies to consider whether:

o

a provider has any ownership or control of an education agent, and their activities, and

o

an education agent, or an associate of the education agent, has any ownership or control of a provider,

in assessing whether the provider is fit and proper to be registered;

•

requiring providers to give education agent commission information to the Secretary of the Department of Education (Secretary) and expanding the ability of the Secretary, or an ESOS agency, to give information to registered providers about education agents;

•

giving the Minister for Education (Minister) powers to determine how initial applications for the registration of providers, and for registration of courses by registered providers, are to be managed by ESOS agencies;

•

requiring providers, prior to applying for registration of courses under the ESOS Act, to deliver one or more courses exclusively to domestic students (i.e. not overseas students) for consecutive study periods totalling two (2) years;

•

enabling the automatic cancellation of a registered provider's registration where courses have not been delivered to overseas students for 12 consecutive months;

•

setting out another new requirement in the fit and proper provider test for ESOS agencies to consider whether a provider is under investigation for a specified offence so that, if an ESOS agency determines that the provider is not fit and proper, the provider's registration is automatically suspended;

•

enabling the automatic suspension and cancellation of courses that are identified by the Minister in a legislative instrument as having systemic issues in relation to the standard of delivery of the course, or courses that provide limited value to Australia's skills and training needs and priorities, or courses that it is in the public interest to cancel;

•

extending the time for ESOS agencies to review a decision made under the ESOS Act from 90 days to 120 days; and

•

allowing ESOS agencies to implement an interim stay of a decision made under the ESOS Act while the decision is under internal review.

These amendments affect higher education providers, Vocational Education and Training (VET) providers and schools providing education services to overseas students and are related to reforms to Australia's migration system. Where possible, the amendments also align with amendments addressing integrity issues specific to the VET sector in the National Vocational Education and Training Regulator Amendment (Strengthening Quality and Integrity in Vocational Education and Training No. 1) Act 2024, supporting whole-of-government priorities.

All the measures in Parts 1 to 8 of Schedule 1 to the Bill enable the Government to uphold the quality and integrity of Australia's international education sector. The measures will support the Government to determine the appropriate settings and priorities for the size, shape and focus of the international education sector, taking into account Australia's broader economic and social considerations.

TEQSA measure (Schedule 1, Part 9)

Part 9 of Schedule 1 to the Bill amends the Tertiary Education Quality and Standards Agency Act 2011 (TEQSA Act) to support greater regulatory oversight of the delivery of higher education courses offshore by Australian education providers. The amendments will require providers to:

•

receive authorisation from TEQSA before being permitted to deliver courses offshore;

•

notify TEQSA of any new or changed offshore delivery arrangements; and

•

provide information to TEQSA regarding their offshore delivery arrangements on a yearly basis.

Australia is a global leader in offshore delivery of higher education. Australian higher education providers are increasingly delivering education offshore to diversify across new markets and course offerings and are embracing more innovative delivery models. This expansion of high-quality offshore delivery is a key priority to support the sustainability of the international education sector. Offshore delivery also enables Australian higher education providers to extend their academic reach and foster international collaboration, while enhancing the reputation of Australian education more broadly.

These amendments will support Australian offshore education to stay ahead of the curve and uphold Australia's reputation as a top-tier education provider. They will provide assurance that Australian higher education programs delivered offshore maintain the high standard of our onshore programs and continue to provide the high-quality academic and student experiences Australia is known for. The requirements set out in these amendments will provide continued assurance to offshore governments and partner institutions that Australian providers have the strong governance structures and regulatory oversight needed to deliver high-quality offshore education in a dynamic and evolving sector.

First Nations medical students measure (Schedule 1, Part 10)

Part 10 of Schedule 1 to the Bill amends HESA to uncap places in medical courses for First Nations students so that all First Nations students who meet the entry requirements to enrol in courses in medicine can be enrolled in a Commonwealth supported place. The amendments respond to the recommendation 3(b) of the Australian Universities Accord Final Report, which recommended the Australian Government provide places for all First Nations students who apply and meet entry requirements for a medical degree.

The measure will expand educational opportunities by allowing higher education providers to enrol more First Nations medical students.

The measure will also help to address the underrepresentation of First Nations people in Australia's health workforce. In 2023, roughly 0.6 per cent of doctors identified as Aboriginal or Torres Strait Islander, despite being 3.8 per cent of the Australian population.

Evidence shows that the First Nations health workforce delivers better health outcomes for First Nations patients. This comes down to the unique skill sets and cultural insights of First Nations health workers increasing cultural safety in healthcare settings. First Nations doctors are also more likely to practise in Aboriginal Community Controlled Health Services and in regional, rural and remote communities.

Growing the First Nations health workforce will support the Government's commitments under the National Agreement on Closing the Gap.

Early Education Service Delivery Prices Project measure (Schedule 2, Part 1)

The Bill amends the Family Assistance Administration Act to expand the Secretary's information gathering powers to support the Early Education Service Delivery Prices Project (SDP Project). The amendment enables the Secretary to issue a notice to compel those ECEC providers that are constitutional corporations to provide financial, cost and pricing related information, or any other information the Secretary reasonably believes is necessary for the SDP Project. The large majority of providers are corporate bodies of a kind referred to in section 51(xx) of the Constitution.

In the first instance, this information will be sought voluntarily from all types of ECEC providers to the greatest extent possible. Support will be available to assist providers to provide the necessary information, including in response to a notice issued under the Secretary's new power. A notice can only be issued if the Secretary reasonably believes that an approved provider is capable of giving the information.

The amendment is necessary to enable the Department of Education and the Australian Government to collect relevant information for the SDP project and understand the reasonable cost of safe and quality ECEC service delivery. The amendment ensures that the data collected can be used to meaningfully inform ECEC policy and funding reforms – and ensure the success of future measures for building a universal and safe ECEC system.

Protected information measure (Schedule 2, Part 2)

The Bill amends the Family Assistance Administration Act to expand the scope to use and disclose protected information collected under the Act. This supports the Government's broader policy objective of optimising public data through the safe, ethical, and lawful release of data as set out in the Intergovernmental Agreement on Data Sharing endorsed by all jurisdictions in 2021. In particular, it supports collaboration with the public, private, and research sectors to extend the value of this data for the benefit of the Australian public.

These amendments to the Family Assistance Administration Act are intended to strengthen the integrity of current ECEC data governance arrangements by clarifying data sharing arrangements and appropriately targeting data aggregation strategies. This will ensure continuity in data reporting and support transparency.

Specifically, these amendments expand the authorisations for the handling of protected information. The amendments authorise the use and disclosure of protected information if the Secretary considers this reasonably necessary for research; statistical analysis; or policy development of matters of relevance to a department administering the family assistance law.

The amendments broaden the scope to use and disclose protected information relating to approved providers and services. This ensures that protected information can be used and disclosed if it relates to an approved provider or service and has already been made lawfully available to the public. In addition, the amendments authorise the use and disclosure of aggregated protected information relating to approved providers and services so long as it does not directly identify a particular approved provider or service.

The amendments also broaden the Secretary's powers to publish information relating to an approved provider. The Secretary will be empowered to publish information in relation to an approved provider or service if satisfied that the information will promote transparency and accountability regarding the administration of CCS or quality and safety or encourage compliance with the family assistance law. Examples of the information the Secretary will be able to publish about a provider includes the type of services in respect of which the provider is approved, the number of children enrolled at the services and the address and contact details of the services. The amendments also enable the Secretary to authorise another Commonwealth, State or Territory body to publish the information. These changes are intended to promote transparency and facilitate easier access to information about providers to assist families to make decisions about early education and care.

Technical amendments to the Family Assistance Administration Act (Schedule 2, Part 3)

The Bill will make two technical amendments. The first amends paragraph 137A(1)(b) of the Family Assistance Administration Act to ensure a consistent approach is taken on internal review and on Administrative Review Tribunal (ART) review of entitlement to be paid CCS or Additional Child Care Subsidy (ACCS) in relation to information that is not to be taken into account when there are favourable changes to an individual's circumstances. The second is to include section 71DA of the Family Assistance Administration Act (debts in respect of CCS or ACCS – absences before first attendance or after last attendance) within the definition of 'debts' for the purpose of section 82. This is a consequential amendment that was inadvertently not included at the time section 71DA was inserted into the Act.

Date of effect measure (Schedule 2, Part 4)

The Bill makes retrospective amendments to the Family Assistance Administration Act to ensure that the date of effect of CCS entitlement and eligibility decisions under the Act relating to end-of-financial year reconciliation processes align with the date these decisions take effect in the CCS system (the 'date of effect measure'). The CCS system is the online system used to administer the CCS. It holds records such as enrolments and session reports and is used to calculate payments for families.

CCS reconciliation is a key part of program integrity, and its purpose is to ensure individuals receive the correct CCS entitlement for a financial year. Currently, if an individual does not meet the CCS reconciliation deadlines, the date of effect for ceasing or re-instating their CCS entitlement and/or eligibility in the CCS system is the first Monday of the next CCS fortnight. This current practice aligns with CCS policy intent and is simple for families to understand, noting most CCS entitlement and eligibility decisions take effect from the following CCS Monday.

However, the dates of effect in the CCS system for three types of decisions concerning the reconciliation of CCS entitlements do not align with the dates of effect under the Family Assistance Administration Act. As a result of the discrepancy, individuals who have failed to meet the deadlines have either been over or underpaid CCS for up to two weeks.

The retrospective amendments ensure that the relevant decisions for CCS reconciliations were validly made. The amendments waive any debts that may have arisen as a result of the misalignment. This prevents the need for recovery action to be taken against families who were overpaid. The amendments also mean that families were not underpaid as a result of the discrepancy. To mitigate any potential adverse impact on individuals, the amendments provide a mechanism for individuals to seek compensation if they can show that the retrospective amendments resulted in an acquisition of their property other than on just terms.

In addition, the amendments clarify that the CCS system can make an automated decision to cease an individual's CCS eligibility if they have failed to meet the second reconciliation deadline.

Human rights implications

The Bill engages:

•

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

•

the rights of parents and children – Articles 3 and 18 of the Convention on the Rights of the Child (CRC);

•

the right to privacy and reputation – Article 3 and Article 17 of the International Covenant on Civil and Political Rights (ICCPR) and Article 16 of the CRC.

The 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. Article 13 also provides that secondary education in all its different forms, including higher education, shall be made generally available and accessible to all by every appropriate means.

International education integrity measures (Schedule 1, Parts 1-8)

The international integrity measures in Parts 1 to 8 of Schedule 1 to the Bill promote the right to education for students by placing safeguards around education providers to ensure that they are providing quality education services to overseas students. By amending the requirements in the fit and proper provider test, the amendments target those providers and agents who may be exploiting and profiteering off students and enable stronger action against these providers, by facilitating an automatic suspension of their registration in appropriate cases. Requiring providers to give information about commissions they have given to education agents in connection with the recruitment of students, as well as strengthening the ability to give such information to providers also ensures that there is transparency of any early indicators of poor agent performance. These amendments also promote the right to education by limiting the ability of providers and agents to recruit non-genuine students to Australia and ensuring that those students who are seeking education in Australia are protected and receive the highest quality of education.

The amendments enabling the Minister to, by legislative instrument, suspend the processing, and making of, applications for registration will also support the right to education by allowing for flexibility in the consideration of these applications. Applications may be triaged, with a focus on only accepting or processing those applications in a particular area of need or priority so that attention or consideration can be given by an ESOS agency to focusing on integrity risks in the international education sector, improving the right to education. Any limitations imposed on the right to education by these amendments, for example, slower growth in the number of providers and courses as certain applications take longer to process, are reasonable, necessary, and proportionate.

The amendments bolstering oversight of providers' registrations, including new requirements for providers to focus on delivery of courses to domestic students prior to delivering to overseas students and the automatic cancellation of registration where a provider has not delivered courses to overseas students in a 12 month period, strengthen the integrity and quality of the international education sector and protect students' right to education by ensuring that only providers delivering quality education services are, and remain, registered under the ESOS Act.

To the extent that cancelling a provider's registration could be seen as limiting the right to education (for example, because fewer education services may be available as a result), this limitation is reasonable, necessary and proportionate to the legitimate policy objective of ensuring that only quality and legitimate organisations are able to be registered to provide courses to overseas students. Providers who have legitimate or reasonable circumstances for not delivering courses can apply for an extension to the 12-month period. Therefore, only providers that are not committed to providing quality education services will have their registration cancelled due to these amendments.

The amendments in Part 7 of Schedule 1 to the Bill for the Minister to specify courses, that are then suspended and cancelled, also supports the right to education by ensuring that students are accessing and studying high quality courses, as well as courses which create suitable job opportunities, contribute to Australia's skills needs, and are not exploiting students. The Minister is only able to specify courses if satisfied that there are systemic issues in relation to the standard of delivery of the course, or the courses provide limited value to Australia's skills and training needs and priorities, or if it is in the public interest to do so.

Overall, the amendments seek to strengthen the integrity and sustainability of the international education system, allowing Australia to promote and support the right to education.

TEQSA measure (Schedule 1, Part 9)

The TEQSA measure in Part 9 of Schedule 1 to the Bill relating to offshore delivery of higher education also supports the right to education. These amendments ensure that appropriate oversight is given to delivery of Australian higher education courses, so that the education provided is high-quality and any integrity issues can be identified and rectified in an appropriate timeframe. As such, the measures promote and support the right to education, especially overseas.

First Nations medical students measure (Schedule 1, Part 10)

The First Nations medical students measure in Part 10 of Schedule 1 to the Bill promotes the right to education by ensuring that all First Nations students who meet the criteria to study medicine will be eligible to receive a Commonwealth supported place.

The measure also promotes the right to education by supporting the Government's commitments under the National Agreement on Closing the Gap to increase educational participation of First Nations people. As such, the measure promotes the right to education.

Cost and financial information measure (Schedule 2, Part 1)

The cost and financial information measure in Part 1 of Schedule 2 to the Bill promotes this right by facilitating the Early Education Service Delivery Prices project to ensure that ECEC sector reform will be informed by a data-driven understanding of the reasonable costs of early education across Australia. This project is intended to promote greater access to early childhood education.

The measure promotes the right of all to education as identified in Article 13(1) of the ICESCR.

The rights of parents and children

Article 3 of the CRC states that in all actions concerning children, the best interests of the child shall be a primary consideration. Further, Article 18 of the CRC requires States Parties to take all appropriate measures to ensure that children of working parents have the right to benefit from child care services and facilities.

Cost and financial information measure (Schedule 2, Part 1)

The cost and financial information measure in Part 1 of Schedule 2 to the Bill promotes the rights of parents and children by seeking to enable a more informed understanding of the ECEC system through the Early Education Service Delivery Prices project which will assist with policy reform to increase access to child care. Provisions in the Bill allow for the collection of information to create a better understanding of the ECEC system and help to identify reasonable costs for child care in Australia. This information will be used for future reforms to the ECEC system, with the aim of making child care more accessible for all parents and children in Australia.

Protected information measure (Schedule 2, Part 2)

The protected information measure in Part 2 of Schedule 2 to the Bill promotes the rights of parents and children to benefit from child care services by increasing transparency about approved child care providers and services. The Bill enables the Secretary to publish information relating to an approved provider or service if satisfied this will promote transparency and accountability regarding the administration of CCS and ACCS, promote quality and safety of child care services, or encourage compliance by the provider with the family assistance law. This will assist families to make informed decisions about child care. Increased transparency also promotes the accountability of providers and services to the public with the aim of improving the provider or service quality or ensuring it remains at a high standard.

These measures are compatible with the rights in Articles 3 and 18 of the CRC because they promote the rights of parents and children.

The right to privacy and reputation

Article 17 of the ICCPR and Article 16 of the CRC recognise the right to privacy for all people, including children.

The right to protection from interference with privacy under Article 17 may be limited where the limitation is lawful and not arbitrary and where it is reasonable, necessary and proportionate to achieving a legitimate objective.

Protected information measure (Schedule 2, Part 2)

The protected information measure in Part 2 of Schedule 2 to the Bill amends the secrecy provisions of the Family Assistance Administration Act to broaden the scope to use, disclose and publish protected information relating to approved providers and services. As such, these amendments are not likely to have any material impact on the privacy of individuals unless the approved provider or service is a sole trader. To the extent that information relating to approved providers and services contains personal information about an individual sole trader, or impacts the reputation of an individual, the impact is reasonable and necessary. In many cases, this will be business information about the sole trader that is already publicly available. Noting that the amendments are aimed at promoting transparency and accountability in the ECEC sector and to enable families to make informed choices about early childhood education and care, any impact on sole traders is reasonable and proportionate.

These amendments may also impact personal information about families and children. The Bill enables a person to make a record of, disclose or otherwise use protected information (including personal information) if the Secretary reasonably believes that the record, disclosure or use made of the information is reasonably necessary for one or more of the following specific public interest purposes: research, monitoring, evaluation or reporting; statistical analysis; or policy development of matters of relevance to a Department administering the family assistance law. Currently, protected information (including personal information) can be handled in this way in accordance with a public interest certificate under paragraph 162(2)(e) read with paragraph 168(1)(a) of the Family Assistance Administration Act and the Family Assistance (Public Interest Certificate Guidelines) (Education) Determination 2018 (PIC Guidelines). This means the amendment does not materially change or increase the current privacy impact.

In many cases, it is unlikely that it would be reasonably necessary to disclose protected information containing personal information for the purposes listed in new paragraphs 162(2AA)(d)-(f). To the extent that protected information containing personal information may be disclosed under subsection 162(2AA), appropriate safeguards are in place. The Secretary must reasonably believe that the disclosure is reasonably necessary for one or more of the specific public interest purposes in paragraphs 162(2AA)(d)-(f), which are limited to matters of relevance to a department administering the family assistance law. In addition, the recipient of the information may only handle the information in accordance with the secrecy provisions in the Family Assistance Administration Act. Further, the obligations under Australian Privacy Principles continue to operate alongside the secrecy provisions. To the extent this amendment may impact privacy, this is reasonable, necessary and proportionate to the legitimate aims of research, statistical analysis and policy development. The handling of protected information for these genuine public interest purposes is intended to promote reform to increase access to high quality early education and care.

The measure is therefore compatible with the rights in Article 17 of the ICCPR and Article 16 of the CRC because, to the extent that it limits the right to protection from interference with privacy, the limitations are reasonable, necessary and proportionate to achieve a legitimate end.

Conclusion

The Bill is compatible with human rights because it promotes the protection of human rights and, to the extent that it may operate to limit human rights, those limitations are reasonable, necessary and proportionate to achieve legitimate objectives.

NOTES ON CLAUSES

Clause 1: Short title

1. This is a formal provision specifying the short title of the Act, the Education Legislation Amendment (Integrity and Other Measures) Act 2025.

Clause 2: Commencement

2. The table in this clause sets out that the commencement date for the Education Legislation Amendment (Integrity and Other Measures) Bill 2025 (the Bill), once it becomes an Act, is the day after the Education Legislation Amendment (Integrity and Other Measures) Act 2025 receives the Royal Assent.

Clause 3: Schedules

3. This clause gives effect to the provisions in the Schedules to the Bill by providing that any legislation that is specified in a Schedule to the Education Legislation Amendment (Integrity and Other Measures) Act 2025 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.

Schedule 1—Amendments relating to overseas students and education

Part 1—Education agents and commissions

Division 1 – Amendments

Education Services for Overseas Students Act 2000

4. Part 1 of Schedule 1 to the Bill amends the Education Services for Overseas Students Act 2000 (ESOS Act) to introduce a new requirement for ESOS agencies to consider, when determining whether a provider is fit and proper to be registered, whether providers have any ownership or control of education agent entities or whether education agent entities have any ownership or control of providers. These amendments are designed to engender transparency in relation to relationships between providers and education agents, with the intent of limiting opportunities for collusive behaviour and improve the standard of conduct required by providers to gain and maintain registration under the ESOS Act.

5. Part 1 also amends the ESOS Act to require providers to give to the Secretary information about education agent commissions that were given to an education agent in connection with the recruitment of accepted students of the provider.

Items 1 and 2: Section 5

6. Items 1 and 2 amend section 5 of the ESOS Act (Definitions) to repeal the definition of 'agent' and insert signpost definitions of 'education agent' and 'education agent commission'.

Item 3: After section 6B

7. Item 3 inserts a new section 6BA to provide the meaning of 'education agent'. An education agent is an entity (whether within or outside Australia) that:

•

at paragraph (a), engages in any one or more of the following activities in relation to a provider:

o

at subparagraph (i), the recruitment of overseas students, or intending overseas students;

o

at subparagraph (ii), providing information, advice or assistance to overseas students, or intending overseas students, in relation to enrolment;

o

at subparagraph (iii), otherwise dealing with overseas students, or intending overseas students; and

•

at paragraph (b), is not a permanent full-time or part-time officer or employee of the provider.

8. This new definition of 'education agent' provides an activity-based approach to persons or entities considered to be education agents. It does not define an agent based on their relationship to a provider, as many agents do not have formal agreements or relationships with specific providers. Any full-time or part-time permanent officer or employee of the provider is also not captured in the definition, as these officers receive a salary and employment benefits from the provider. This is to ensure that employees who work for education providers that undertake some, or all, of their own student recruitment activities internally, are not captured by the definition or subject to the additional obligations imposed on agents. For example, a permanent employee of a university who works in the university's student recruitment team and deals with current accepted or intending overseas students, will not be caught by this definition.

9. This new definition is not intended to capture sector peak bodies or Government entities such as the Department of Education or Austrade. While these organisations may, for example, provide information, advice or assistance to overseas students, they do not do so 'in relation to a provider', that is, on behalf of a specific provider.

10. Item 3 also inserts a new section 6BB to provide the meaning of 'education agent commission'. Education agent commission means any consideration or benefit, whether monetary or non-monetary, that:

•

at paragraph (a), is or will be given, by, or on behalf of, a provider to an education agent, or an associate of the education agent; and

•

at paragraph (b), is in connection with:

o

at subparagraph (i), the recruitment of an overseas student or an intending overseas student; or

o

at subparagraph (ii), any other activity in relation to an overseas student or an intending overseas student mentioned in paragraph 6BA(a) of the definition of education agent.

11. The note under new section 6BB explains that examples of such consideration or benefits include fees, charges, commissions, bonuses, performance payments, gifts, discounted or free services, rewards and incentives.

12. This new definition of 'education agent commission' is required for amendments in Part 2 of Schedule 1 to the Bill, for the purposes of giving education agent information under subsection 175(3) of the ESOS Act, in particular, information related to the cost incurred by a provider to engage an education agent and the variability of these costs. This market information is currently unavailable to providers. It will enable providers to assess and decide which education agents it should work with for cost-effective and quality results in student recruitment and student satisfaction.

13. As evidenced in the Nixon Review, some providers are facilitating student movements for maximum profit, rather than in the best interests of the student. This is paid for by an education provider to an agent in the form of a commission, and the payment of this commission can vary significantly from agent to agent. Some agents charge a fixed percentage of a student's tuition fees (e.g. 5 per cent). Some agents charge a set fixed fee per student (e.g. each student recruited costs $5,000, regardless of the course the student is enrolled in or its duration). Some agents will also take payment in other forms, including fully subsidised holidays/travel to visit the provider in Australia, or subsidised educational services for the agents and their families. Some agents will also take payment in the form of gifts or other non-monetary incentives.

Item 4: After paragraph 7A(2)(g)

14. Item 4 inserts new paragraphs 7A(2)(gaa) and (gab) in subsection 7A(2) of the ESOS Act which lists factors ESOS agencies or designated State authorities must have regard to when deciding whether a provider or registered provider is fit and proper. New paragraph 7A(2)(gaa) provides that the ESOS agency for the provider or designated State authority must have regard to whether the provider, or an associate of the provider, has any ownership or control (whether direct or indirect) of an education agent, and if so, the value or extent of the ownership or control.

15. New paragraph 7A(2)(gab) additionally provides that the ESOS agency for the provider or designated State authority must have regard to whether an education agent, or an associate of the education agent, has any ownership or control (whether direct or indirect) of the provider, and if so, the value or extent of the ownership or control.

16. ESOS agencies will rely on publicly available information, as well as information given by providers during their application for registration and re-registration, in making their assessment under new paragraphs 7A(2)(gaa) and (gab). It is in a provider's best interests to be honest and truthful in the information given to ESOS agencies, as this could affect an ESOS agency's decision on whether a provider is fit and proper to be registered. An ESOS agency may also impose sanctions against a registered provider who provides false and misleading information. Furthermore, this section allows for ESOS agencies to have discretion when considering the impact of such arrangements in the context of the broader fit and proper provider test.

17. These amendments to the fit and proper provider test are included in section 7A of the ESOS Act to ensure that a strong message is sent to providers, their associates, and agents that collusion between a provider and an agent will not be tolerated in circumstances where the value or extent of a provider's ownership or control of an agent (or vice versa) could facilitate the exploitation of students.

18. These new considerations in the fit and proper provider test will apply to paragraph 11(c) of the ESOS Act (where a provider is seeking registration), subsection 83(1B) of the ESOS Act (where an ESOS agency can impose sanctions on a provider if the agency believes on reasonable grounds that the provider is not fit and proper to be registered) and section 89 of the ESOS Act (where a provider's registration is automatically suspended if the provider is no longer fit and proper). The amendment will capture any ownership or control that exists between providers and agents operating in Australia and overseas.

Item 5: After subsection 17A(4)

19. Item 5 inserts new subsections 17A(4A) and (4B) to require registered providers who begin to have ownership or control of an education agent, or begin to be owned or controlled by an education agent, to notify their ESOS agency of this.

20. New subsection 17A(4A) provides that a registered provider must notify the ESOS agency for the provider of the following events:

•

at paragraph (a), the provider or an associate of the provider, begins to own or control an education agent;

•

at paragraph (b), there is a change in the ownership or control of an education agent by the provider or an associate of the provider;

•

at paragraph (c), an education agent, or an associate of the education agent, begins to own or control the provider;

•

at paragraph (d), there is a change in the ownership or control of the provider by an education agent or an associate of the education agent.

21. New subsection 17A(4B) requires that notice under subsection 17A(4A) must be given within 10 business days after the event occurs.

22. This amendment ensures that an ESOS agency receives timely notice and information from a registered provider to be able to assess if any change in relationship with an education agent might impact on whether the provider continues to be fit and proper. An ESOS agency may impose sanctions for any breaches of section 17A of the ESOS Act.

Items 6 to 8: Section 21A

23. Item 6 inserts the term 'education' before the term 'agents' so that the heading of section 21A is now 'Obligations relating to the education agents of registered providers'.

24. Items 7 and 8 similarly insert the term 'education' before the term 'agents' in section 21A.

25. The amendments in these items reflect the changes made by items 2 and 3 of the Bill to insert a new definition of 'education agent'.

Item 9: After section 21A

26. Item 9 inserts new section 21B requiring a registered provider to give information about education agent commissions if requested to do so by the Secretary. New section 21B complements amendments to section 175 of the ESOS Act in Part 2 of Schedule 1 to the Bill, which will enable information that is collected about education agent commissions to be given to registered providers to achieve transparency of education agent practices and behaviours.

27. New subsections 21B(1) to (4) outline the Secretary's power to request a provider to give information about commissions.

28. New subsection 21B(1) provides that the Secretary may request a registered provider to give specified information about, or in relation to, education agent commissions given, by, or on behalf of, the provider to one or more education agents over a specified period (the reporting period) in connection with the recruitment of accepted students of the provider.

29. New subsection 21B(2) provides that the request must:

•

at paragraph (a), be in writing; and

•

at paragraph (b), specify the reporting period; and

•

at paragraph (c), specify the day by which the information is to be given; and

•

at paragraph (d), specify the manner or form in which information is to be given (including by requiring information to be entered in the computer system established under section 109); and

•

at paragraph (e), specify the documents (if any) which must accompany the information.

30. New subsection 21B(3) provides that, without limiting subsection 21B(1), the information may relate to one or more of the following:

•

at paragraph (a), the total amount in dollars given to each education agent;

•

at paragraph (b), the value and description of non-monetary benefits given to each education agent;

•

at paragraph (c), the number of accepted students of the provider recruited by each education agent.

31. New subsection 21B(4) provides that the day specified for the purposes of paragraph 21B(2)(c) must be at least 30 days after the request is given to the provider.

32. These provisions give the Secretary flexibility to determine the specific information that is to be given by each provider and the timeframes in which information must be given. This flexibility is necessary because, when it comes to the giving of a commission by a provider to an education agent, there is no set standard or practice that is applicable to all providers and agents. This flexible approach took into consideration feedback from the sector, and is also aimed at reducing the administrative burden providers may face in complying with this requirement. For example, an education agent may charge directly for the recruitment of a single student, or they may charge a total amount of commission in relation to the recruitment of a number of accepted students. This flexible approach also reflects the diversity of the types of monetary and non-monetary commissions that can be given to an agent.

33. New subsections 21B(5) to (8) set out a provider's obligation to comply with a request made by the Secretary under new subsection 21B(1).

34. New subsection 21B(5) provides that the registered provider must comply with the request before:

•

at paragraph (a), the day specified in the request; or

•

at paragraph (b), any later day allowed by the Secretary.

35. Note 1 under this subsection explains that if a registered provider breaches this section, the ESOS agency for the provider may take action under Division 1 of Part 6 of the ESOS Act against the provider. Note 2 under this subsection explains that under section 108 of the ESOS Act, it is an offence to provide false or misleading information in complying or purporting to comply with this section.

36. New subsection 21B(6) provides that, if specified in the request, a registered provider must give the information required by this section by entering the information in the computer system established by the Secretary under section 109. This is the Provider Registration and International Student Management System (PRISMS), but the Secretary may also specify a different method in the request in which information is to be given.

37. New subsection 21B(7) provides that a registered provider who fails to comply with subsection 21B(5) commits an offence. The penalty is 60 penalty units.

38. New subsection 21B(8) provides that an offence under subsection 21B(7) is an offence of strict liability. The note under this subsection explains that section 6.1 of the Criminal Code describes what is meant by the term 'strict liability'.

39. The penalty amount and making the offence a strict liability is appropriate, as it is consistent with the penalties applicable to similar information notice requirements such as section 19, and record-keeping requirements such as section 21. Strict liability is appropriate for offences that are to be subject to infringement notice schemes. Design of this penalty is consistent with the guidance in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.

40. New subsection 21B(9) provides that section 4K (continuing offences) of the Crimes Act 1914 does not apply in relation to an offence under subsection 21B(7).

Item 10: Paragraph 38(d)

41. Item 10 omits the terms 'their agents' and substitutes it with 'education agents' so that amended paragraph 38(d) provides that the national code may contain 'standards required of registered providers in connection with their dealings with education agents'. The national code refers to the National Code of Practice for Providers of Education and Training to Overseas Students in force under Part 4 of the ESOS Act. This amendment reflects the changes made by items 2 and 3 of the Bill to insert a new definition of 'education agent'.

Item 11: Paragraph 86(1)(d)

42. Item 11 inserts the term 'education' before the term 'agent' so that amended paragraph 86(1)(d) provides that an example of a condition that can be imposed by an ESOS agency is 'the provider not deal with a specified education agent in relation to overseas students or intending overseas students.' This amendment reflects the changes made by items 2 and 3 of the Bill to insert a new definition of 'education agent'.

Item 12: After paragraph 108(b)

43. Section 108 of the ESOS Act provides that a person commits an offence if the person provides false or misleading information in complying or purporting to comply with section 13 (TPS Director may require information), section 19 (giving information about accepted students) or subsections 26(1) or (3) (disclosure obligations of registered providers).

44. Item 12 inserts new paragraph 108(c) into section 108 of the ESOS Act to list new section 21B, which makes it an offence if a person provides false or misleading information in complying or purporting to comply with 'section 21B (giving information about education agent commissions)'.

45. The penalty for offences under section 108 of the ESOS Act is imprisonment for 12 months. Applying this penalty to the new offence is appropriate as it aligns with existing penalties for providing false or misleading information under section 108 of the ESOS Act.

Item 13: After paragraph 132(1)(d)

46. Item 13 inserts new paragraph 132(1)(da) into subsection 132(1) of the ESOS Act to make non-compliance with new subsection 21B(7) subject to an infringement notice under Part 5 of the Regulatory Powers (Standard Provisions) Act 2014.

Item 14: Subsection 175(3)

47. Item 14 omits the terms 'agents of providers' and substitutes it with 'education agents' so that under subsection 175(3) of the ESOS Act the Secretary, or ESOS agency, may give information relating to the exercise of functions by education agents to registered providers. This amendment reflects the changes made by items 2 and 3 of the Bill to insert a new definition of 'education agent'.

Item 15: Subsection 175(4) (heading)

48. Item 15 inserts the term 'education' before the term 'agents' so that the heading of subsection 175(4) is now 'Publishing information about education agents'. This amendment reflects the changes made by items 2 and 3 of the Bill to insert a new definition of 'education agent'.

Item 16: Subsection 175(4)

49. Item 16 omits the terms 'agents of providers' and substitutes the terms 'education agents' so that under subsection 175(4) of the ESOS Act the Secretary may cause to be published information relating to the exercise of functions by education agents. This amendment reflects the changes made by items 2 and 3 of the Bill to insert a new definition of 'education agent'.

Item 17: Paragraphs 175(5)(a), (b) and (c)

50. Item 17 amends paragraphs 175(5)(a), (b) and (c) to insert the term 'education' before the term 'agent' in the list of information that may be given under subsection 175(3) or published under subsection 175(4). These amendments reflect the changes made by items 2 and 3 of the Bill to insert a new definition of 'education agent'.

Item 18: Paragraph 175(5)(d)

51. Item 18 amends paragraph 175(5)(d) to insert the term 'education' before the term 'agents' in the last example of information that may be given under subsection 175(3) or published under subsection 175(4). This amendment reflects the changes made by items 2 and 3 of the Bill to insert a new definition of 'education agent'.

Division 2—Application of amendments

Item 19: Application provision

52. Item 19 sets out the application provisions for the amendments relating to education agents.

53. Subitem 19(1) provides that the amendments of section 7A of the ESOS Act made by Part 1 of Schedule 1 to the Bill apply in relation to:

•

at paragraph (a), applications for registration made on or after the commencement of that Part; and

•

at paragraph (b), applications for registration made before the commencement of that Part but not yet decided as at that commencement; and

•

at paragraph (c), providers registered before, on or after the commencement of that Part.

54. This provision means that the new considerations inserted into paragraphs 7A(2)(gaa) and (gab), related to deciding whether a provider or registered provider is fit and proper, will apply to:

•

a provider applying for registration or re-registration after commencement; and

•

a provider who applied for registration or re-registration before commencement, but the ESOS agency or designated State authority has not yet made a decision on the application; and

•

a provider who is registered before, on or after commencement, as a matter for the ESOS agency to consider in relation to suspending or applying sanctions on the provider.

55. The amendments of section 7A will apply to providers who have already been registered, and to applications by providers to be registered, that have not yet been decided prior to commencement. This means it is possible that ESOS agencies may consider that existing providers, and providers applying to be registered, are not fit and proper to be registered, relying on a factor that did not exist at the time those providers were registered, or applied to be registered.

56. It is necessary and appropriate to apply the amendments to providers registered before commencement of the Bill to ensure that those unscrupulous providers that are currently registered but are colluding or subject to a controlling relationship with an education agent, are subject to this consideration under the fit and proper test just like those who apply for registration post-commencement. If these amendments were not applied to existing providers, the section would not operate as intended and students would remain subject to the exploitative practices of currently registered providers. Some cross-ownership relationships are appropriate when there are transparent arrangements, however, many can result in altered practices where interactions with the sector and students occur for maximum profit or gain, rather than to address student needs. Ensuring that all providers, regardless of when they were registered, are subject to the same test and the same standards, will send a strong message to the sector and allow ESOS agencies to use the amended fit and proper provider test and ensure that providers remain fit and proper to be registered.

57. It is also necessary and appropriate to apply these amendments to providers that have applied to be registered before commencement of the Bill to ensure that any cross-ownership arrangements between prospective providers and education agents are considered by ESOS agencies prior to registration. This will ensure that the nature and impact of such relationships, and the effect they may have on students, can be considered prior to such providers enrolling students, with the aim of avoiding the facilitation of current unscrupulous practices described above.

58. The Department of Education will work with ESOS agencies to prepare guidance material that can be shared with recent and prospective applicants, to ensure they are aware of the new requirements pre-commencement of the amendments to the ESOS Act. This will allow providers time to review their applications against the new obligations, including time to make any adjustments prior to assessment if required, which ensures that these providers are not detrimentally affected by the commencement of this provision. It is also important to note that the fact a cross-ownership relationship exists between a provider and an education agent does not mean a provider is automatically unfit to be registered – this is simply one factor that ESOS agencies will consider when determining whether a provider is fit and proper to be registered.

59. Subitem 19(2) provides that the amendments of section 17A of the ESOS Act made by Part 1 of Schedule 1 to the Bill apply in relation to providers registered before, on or after the commencement of that Part.

60. This means that, on commencement, registered providers are required under section 17A of the ESOS Act to notify their ESOS agency if:

•

the provider or an associate of the provider, begins to own or control an education agent; or

•

there is a change in the ownership or control of an education agent by the provider or an associate of the provider; or

•

an educational agent, or an associate of the education agent, begins to own or control the provider; or

•

there is a change in the ownership or control of the provider by an education agent or an associate of the education agent.

61. Subitem 19(3) provides that the insertion of section 21B of the ESOS Act made by Part 1 of Schedule 1 to the Bill applies whether or not:

•

at paragraph (a), the reporting period starts before, on or after commencement of that Part; or

•

at paragraph (b), the education agent commission is given before, on or after the commencement of that Part.

62. This means that, on commencement, the Secretary may issue a request under section 21B for education agent commission information that relates to a reporting period that started, or that relates to an education agent commission given to an education agent, before commencement of the provision. It is expected that education providers already have, and are keeping, records of commissions that are given to education agents so will be able to give accurate information in response to these requests (if made).

Part 2—Giving information to registered providers

Division 1 – Amendments

Education Services for Overseas Students Act 2000

63. Part 2 of Schedule 1 to the Bill amends the ESOS Act to achieve transparency of education agent practices and behaviours through the giving of education agent information to registered providers.

Item 20: After paragraph 175(3)(b)

64. Item 20 inserts a new paragraph 175(3)(c) so that information relating to the exercise of functions by education agents can be given by the Secretary, or the ESOS agency for a provider or registered provider, to a registered provider for the purposes of "protecting and enhancing Australia's reputation for quality education and training services for accepted students".

65. The amendments to subsection 175(3) of the ESOS Act aim to achieve transparency of education agent practices and behaviours through strengthening the ability of the Secretary, or relevant ESOS agency, to give information relating to the exercise of functions by education agents to registered providers. The amendments, aimed at assisting providers to make better decisions about which agents to engage (based on a range of agent information), go towards protecting and enhancing Australia's reputation for quality education and training services for accepted students.

66. The information given to providers may include personal information, such as the personal information of education agents, in order to help registered providers identify reputable education agents to engage. It may also include commercially sensitive information, including education agent commissions. Any personal or sensitive information collected will be used only for the legitimate purpose of helping providers to choose reputable education agents. The Department of Education, the Tertiary Education Quality and Standards Agency (TEQSA) and the Australian Skills Quality Authority (ASQA) will adhere to the requirements set out in the Privacy Act and the Australian Privacy Principles when collecting, handling, using or disclosing any personal or sensitive information.

Item 21: At the end of section 175

67. Item 21 inserts a new subsection 175(6) to expand the list of information relating to the functions of education agents that may be given to a registered provider under subsection 175(3).

68. New subsection 175(6) provides that, without limiting subsection 175(3) or 175(5), the information given under subsection 175(3) may relate to:

•

at paragraph (a), the number of transfers of accepted students, recruited or otherwise dealt with by an education agent, from one provider or registered provider to a different provider or registered provider; or

•

at paragraph (b), the number of transfers of accepted students, recruited or otherwise dealt with by an education agent, from one course to a different course; or

•

at paragraph (c), information about education agent commissions in connection with the recruitment of accepted students.

69. The information relating to functions of education agents will be given to registered providers in a controlled, access restricted platform and it is expected that providers will use this information to decide which education agents to engage and work with on agent-based activities, such as the recruitment of students. For example, a provider may choose to work with education agents who have a lower rate of course transfers (an indicator of student satisfaction) or lower commissions, and not choose to use agents who have a pattern of high visa refusals and high commission rates. Some of the agent information is given by providers to the department under section 19 of the ESOS Act, specifically, for the purposes of subsection 19(1) of the ESOS Act and as prescribed in the Education Services for Overseas Students Regulations 2019 (ESOS Regulations). Providers will be required to give information about education agent commissions under new section 21B which is being inserted in the ESOS Act by Part 1 of Schedule 1 to the Bill.

Division 2—Application of amendments

Item 22: Application provision

70. Item 22 provides that the amendments of section 175 of the ESOS Act made by Part 2 of Schedule 1 to the Bill apply in relation to information given on or after the commencement of that Part, regardless of when the information was obtained or received.

71. This provision enables the Secretary, or the ESOS agency, to give information relating to the exercise of functions by education agents to registered providers, that may have already been collected under existing provisions, for example, under section 19 of the ESOS Act or Division 1 in Part 3 of the ESOS Regulations. This will allow the Secretary, or relevant ESOS agency, to share this information shortly after commencement of the Bill, as opposed to having to wait until data has been collected post-commencement for providers to use to inform their decision making.

Part 3 —Management of provider applications

Education Services for Overseas Students Act 2000

72. Part 3 of Schedule 1 to the Bill amends the ESOS Act to enable the Minister to, by legislative instrument, suspend the making or processing of applications for registration or adding courses to registration.

Item 23: Section 5

73. Item 23 inserts a new definition of 'processing activity' in section 5 of the ESOS Act for the purposes of new Division 5. Processing activity means:

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at paragraph (a), performance of a function or exercise of a power under or for the purposes of the ESOS Act; or

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at paragraph (b), an act connected with performing functions or exercising powers under or for the purposes of the ESOS Act.

Item 24: Section 8A (after the paragraph beginning "Division 4")

74. Item 24 inserts a new point into the 'Guide to this Part' at section 8A of the ESOS Act to give a brief overview of new Division 5. The new point is:

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Division 5 provides for the Minister to suspend the making or processing of applications for registration or adding courses to registration.

Item 25: Subsection 9(1)

75. Item 25 amends subsection 9(1) of the ESOS Act to omit the terms 'a provider' and substitutes it with 'Subject to section 14E, a provider' such that the subsection would read: 'Subject to section 14E, a provider may apply to be registered to provide a course or courses at a location or locations to overseas students.' This amendment clarifies that a legislative instrument made by the Minister under new section 14E could prevent a provider from making an application for registration under the ESOS Act for the period of the instrument's operation.

Item 26: At the end of subsection 9(1)

76. Item 26 adds a new note under subsection 9(1) of the ESOS Act which provides that under section 14E, the Minister may determine that no applications for registration may be made until after a specified day.

Item 27: At the end of subsection 10(1)

77. Item 27 adds a new note under subsection 10(1) of the ESOS Act. That subsection provides that, if a provider makes an application under section 9, the ESOS agency for the provider may register the provider to provide a course or courses at a location or locations if the provider meets the registration requirements. The new note provides that the Minister may determine that the ESOS agency for a provider is not required to, or must not, deal with applications for registration for a period (see section 14C). This note explains that the ESOS agency may refuse to, or alternatively, must not, process applications for registration in accordance with a legislative instrument made by the Minister under new section 14C.

Item 28: Paragraph 10D(2)(a)

78. Item 28 corrects a typographical error in paragraph 10D(2)(a) by omitting the term 'register provider' and substituting it with 'registered provider'.

Item 29: Subsection 10H(1)

79. Item 29 amends subsection 10H(1) of the ESOS Act to omit the terms 'a registered provider' and substitutes it with 'Subject to section 14F, a registered provider' such that the subsection would read: 'Subject to section 14F, a registered provider may apply to add one or more courses at one or more locations to the provider's registration'. This amendment clarifies that a legislative instrument made by the Minister under new section 14F could prevent a registered provider from making an application to add one or more courses at one or more locations to the provider's registration under the ESOS Act for the period of the instrument's operation.

Item 30: At the end of subsection 10H(1)

80. Item 30 adds a new note under subsection 10H(1) of the ESOS Act which provides that under section 14F, the Minister may determine that no applications to add one or more courses at one or more locations may be made until after a specified day.

Item 31: At the end of subsection 10J(1)

81. Item 31 adds a new note under subsection 10J(1) of the ESOS Act. That subsection provides that if a registered provider makes an application under section 10H to add one or more courses at one or more locations to the provider's registration, the ESOS agency for the provider may add those courses at those locations to the provider's registration if the provider meets the registration requirements. The new note provides that the Minister may determine that the ESOS agency for a provider is not required to, or must not, deal with applications to add one or more courses at one or more locations for a period (see section 14D). This note explains that the ESOS agency may refuse to, or alternatively, must not, process applications to add one or more courses at one or more locations to the provider's registration in accordance with a legislative instrument made by the Minister under new section 14D.

Item 32: At the end of Part 2

82. Item 32 adds a new Division 5 'Suspension of applications for registration' to the end of Part 2 of the ESOS Act.

83. New sections 14C and 14D, respectively, provide the Minister with the power to determine that ESOS agencies may not, or must not, process applications made by providers for registration under section 9 of the ESOS Act or applications made by registered providers to add courses to their registration under section 10H of the ESOS Act.

84. These amendments enable the Minister to issue an instrument on management and processing of applications for registration made by new providers. By reference to the new definition of processing activity, it is clear that an ESOS agency is not required to, or must not, determine an application under sections 9 or 10H that has not yet been determined, to the extent specified in the instrument from the date the instrument commences until the end date specified in the instrument. This end date must not be more than 12 months after the date the instrument commences.

85. It is intended that the Minister will only exercise this power in limited circumstances, for example, where the Minister has concerns relating to the integrity or sustainability of the international education sector. This will help protect overseas students by ensuring that, where there are significant concerns associated with all, or a specified class of, registration applications, the Minister can direct the ESOS agencies to pause the processing of these applications, while allowing other applications to continue as appropriate, in order to undertake further investigation.

86. The powers under new sections 14C and 14D might also be exercised on the advice of an ESOS agency. For example, in circumstances where an ESOS agency receives a considerable and unexplained influx of applications and requires additional time to determine whether granting all applications will have a negative effect on the integrity of the international education sector.

87. It is not appropriate for an instrument made under sections 14C or 14D to be subject to disallowance as it may cause uncertainty for the operations and functions of ESOS agencies, and for providers, as the instrument is to be relied upon from the date it takes effect. As explained above, the Minister will only exercise this power in limited circumstances – for example, where the Minister has concerns relating to the integrity or sustainability of the international education sector and urgent, decisive action is required. As set out in new section 14G, the Minister is required to consult before making legislative instruments under this Division.

88. In addition, the department will provide advance notice to providers affected by the making of the instrument. Once the instrument is in effect, an ESOS agency's main resources and focus will likely be diverted to investigating significant concerns in the international education sector rather than processing activities. Providers may also make certain adjustments to their commercial operations and business plans in response to the instrument, to enable them to continue providing domestically-focused education services.

89. Subjecting the legislative instrument to the disallowance process may result in further uncertainty in this period of change for the international sector, in respect of affording providers with commercial and business certainty once an instrument has been made. The matters covered by an instrument should also be under Executive control, given the primary purpose of the instrument will go to the functioning and operations of ESOS agencies and their role in regulating providers where integrity risks are present.

90. New section 14C sets out that the Minister may suspend processing of applications for registration. New subsections 14C(1) and (2) set out the Minister's powers to determine that an ESOS agency is not required to do any processing activity.

91. New subsection 14C(1) provides that the Minister may, by legislative instrument, determine that an ESOS agency for a provider is not required to deal with applications made under section 9 until after a day specified in the instrument. The note under subsection 14C(1) explains that section 9 provides that a provider may apply to be registered to provide a course or courses at a location or locations to overseas students.

92. New subsection 14C(2) provides that between the day an instrument made under subsection 14C(1) commences and the day specified in the instrument, the ESOS agency for the provider is not required to do any processing activity in relation to an application to which the instrument applies.

93. If the Minister makes an instrument under subsection 14C(1), this provides an ESOS agency with the discretion to decide whether or not it will process any applications for registration before the specified date. This is not an administrative decision for which merits review is appropriate. A provider's interest is affected by the instrument itself, and an ESOS agency deciding whether it will process a registration application is merely a preliminary or procedural decision that facilitates, or leads to, the making of a substantive decision on the application (which, if an ESOS agency refuses to register a provider, is reviewable under section 169AB of the ESOS Act). An ESOS agency deciding which applications to process is not likely to have substantive consequences for an individual provider, given the effect of the legislative instrument in place.

94. New subsections 14C(3) and (4) set out the Minister's powers to determine that an ESOS agency must not do any processing activity.

95. New subsection 14C(3) provides that the Minister may, by legislative instrument, determine that an ESOS agency for a provider must not deal with applications made under section 9 until after a day specified in the instrument.

96. New subsection 14C(4) provides that between the day an instrument made under subsection 14C(3) commences and the day specified in the instrument, the ESOS agency for the provider must not do any processing activity in relation to an application to which the instrument applies.

97. New subsections 14C(5) and (6) provide more detail about the instruments that are made by the Minister under this section.

98. New subsection 14C(5) provides that the day specified in an instrument made under subsections 14C(1) or 14C(3) must not be more than 12 months after the day the instrument commences.

99. New subsection 14C(6) provides that an instrument made under subsections 14C(1) or 14C(3) may be expressed to apply to:

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at paragraph (a), all applications made under section 9 or one or more classes of applications made under that section; and

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at paragraph (b), applications under that section made before or after the commencement of the instrument (or both); and

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at paragraph (c), applications under that section made before or after the commencement of this section (or both).

100. The note under subsection 14C(6) explains that for specification by class, see subsection 13(3) of the Legislation Act 2003. This means that an instrument made under subsections 14C(1) or 14C(3) can be expressed to apply to certain classes of applications and, for clarity, also expressed to not apply to certain classes of applications, as both will form part of the description of the class of application to which the instrument applies.

101. Paragraph 14C(6)(c) means that the Minister may make an instrument that is expressed to apply to applications for registration made before or after the commencement of the Bill. This means that providers who have applied for registration prior to commencement of the amendments, may be affected by the making of an instrument, if such an instrument limits processing activity in relation to their application.

102. It is necessary and appropriate for the amendments to apply retrospectively to ensure this section operates as intended to allow ESOS agencies sufficient time to investigate and process applications effectively without risking the integrity and quality of the sector. Applying the amendments to applications on hand will avoid the risk of a situation arising where non-genuine providers seek to circumvent increased regulatory scrutiny ahead of changes being introduced, for example, by quickly submitting an application prior to commencement. It ensures that all intending providers are subject to the same considerations regardless of the time of their application.

103. New subsection 14C(7) provides that, despite subsection 14(2) of the Legislation Act 2003, an instrument made under subsections 14C(1) or 14C(3) may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in an instrument or other writing as in force or existing from time to time. This subsection provides a contrary intention to the requirements in subsection 14(2) of the Legislation Act 2003 so that an instrument made by the Minister can flexibly refer to external documents. The ability to refer to external documents is important as the Minister may need to consider whether an instrument should not apply to applications for registration by providers delivering courses identified as essential for addressing new fields or emerging areas of critical skills needs. In such a scenario, it may be necessary for the instrument to refer to an independent analysis of skills needs identifying those critical areas. This purpose will benefit some providers seeking to apply for registration as they will be exempt from the application of the instrument, by reference to an external document identifying critical skills needs.

104. While generally, the external documents will apply at the time of commencement of an instrument, it may be necessary to have the flexibility to apply documents as existing from time to time to ensure that the instrument responds to Australia's skills needs so that providers can be registered to deliver relevant courses in respect of required skills. Any external documents incorporated into the instrument will be freely available and the explanatory material accompanying the making of an instrument will identify where providers can find the external document online.

105. New subsection 14C(8) provides that section 42 (disallowance) of the Legislation Act 2003 does not apply to a legislative instrument made under subsections 14C(1) or 14C(3).

106. New section 14D sets out that the Minister may suspend processing of applications made by registered providers to add courses to registration. New subsections 14D(1) and (2) set out the Minister's powers to determine that an ESOS agency is not required to do any processing activity.

107. New subsection 14D(1) provides that the Minister may, by legislative instrument, determine that an ESOS agency for a registered provider is not required to deal with applications made under section 10H until after a day specified in the instrument. The note under subsection 14D(1) explains that section 10H provides that a registered provider may apply to add one or more courses at one or more locations to the provider's registration.

108. New subsection 14D(2) provides that between the day an instrument made under subsection 14D(1) commences and the day specified in the instrument, the ESOS agency for the provider is not required to do any processing activity in relation to an application to which the instrument applies.

109. New subsections 14D(3) and (4) sets out the Minister's powers to determine that an ESOS agency must not do any processing activity.

110. New subsection 14D(3) provides that the Minister may, by legislative instrument, determine that an ESOS agency for a registered provider must not deal with applications made under section 10H until after a day specified in the instrument.

111. New subsection 14D(4) provides that between the day an instrument made under subsection 14D(3) commences and the day specified in the instrument, the ESOS agency for the provider must not do any processing activity in relation to an application to which the instrument applies.

112. New subsections 14D(5) and (6) provide more detail about the instruments that are made by the Minister under this section.

113. New subsection 14D(5) provides that the day specified in an instrument made under subsection 14D(1) or 14D(3) must not be more than 12 months after the day the instrument commences. This means that the maximum period that an ESOS agency may not, or must not, do any processing activity under an instrument made is 12 months.

114. New subsection 14D(6) provides that an instrument made under subsection 14D(1) or (3) may be expressed to apply to:

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at paragraph (a), all applications made under section 10H or one or more classes of applications made under that section; and

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at paragraph (b), applications under that section made before or after the commencement of the instrument (or both); and

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at paragraph (c), applications under that section made before or after the commencement of this section (or both).

115. The note under subsection 14D(6) explains that for specification by class, see subsection 13(3) of the Legislation Act 2003. This means that an instrument made under subsections 14D(1) or 14D(3) can be expressed to apply to certain classes of applications and, for clarity, also expressed to not apply to certain classes of applications as both will form part of the description of the class of application to which the instrument applies.

116. New paragraph 14D(6)(c) means that the Minister may make an instrument that is expressed to apply to applications for registration made before or after the commencement of the Bill. This means that providers who have applied for registration prior to commencement of the amendments, may be affected by the making of an instrument, if such an instrument limits processing activity in relation to their application.

117. It is necessary and appropriate for the amendments to apply retrospectively to ensure this section operates as intended to allow ESOS agencies sufficient time to investigate and process applications effectively without risking the integrity and quality of the sector. Applying the amendments to applications on hand will avoid the risk of a situation arising where non-genuine providers seek to circumvent future increased regulatory scrutiny ahead of changes being introduced, for example, by quickly submitting an application prior to commencement. It ensures that all providers seeking to add additional courses to their registration are subject to the same considerations regardless of the time of their application.

118. New subsection 14D(7) provides that despite subsection 14(2) of the Legislation Act 2003, an instrument made under subsections 14D(1) or 14D(3) may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in an instrument or other writing as in force or existing from time to time. This subsection provides a contrary intention to the requirements in subsection 14(2) of the Legislation Act 2003 so that an instrument made by the Minister can flexibly refer to external documents. The ability to refer to external documents is important as the Minister may need to consider whether an instrument should not apply to applications for registration of new courses by providers delivering courses identified as essential for addressing new fields or emerging areas of critical skills needs. In such a scenario, it may be necessary for the instrument to refer to an independent analysis of skills needs identifying those critical areas. This purpose will benefit some providers seeking to apply for registration as they will be exempt from the application of the instrument, by reference to an external document identifying critical skills needs.

119. While generally, the external documents will apply at the time of commencement of an instrument, it may be necessary to have the flexibility to apply documents as existing from time to time to ensure that the instrument responds to Australia's skills needs so that providers can be registered to deliver relevant courses in respect of required skills. Any external documents incorporated into the instrument will be freely available and the explanatory material accompanying the making of an instrument will identify where providers can find the external document online.

120. New subsection 14D(8) provides that section 42 (disallowance) of the Legislation Act 2003 does not apply to a legislative instrument made under subsection 14D(1) or (3).

121. New sections 14E and 14F, respectively, provide the Minister with the power to determine that no applications are to be made by providers for registration under section 9 of the ESOS Act or that no applications are to be made by registered providers to add courses to their registration under section 10H of the ESOS Act.

122. It is intended that the Minister will exercise this power only in circumstances where the Minister has concerns relating to the integrity and sustainability of the international education sector. The Minister may also exercise these powers on the advice of an ESOS agency, for example, where there is a considerable influx of applications under sections 9 or 10H and an ESOS agency requires additional time to investigate and process these applications effectively, without receiving new applications under sections 9 or 10H.

123. If a provider purports to make an application for registration under sections 9 or 10H, during the period specified in an instrument made by the Minister, the application will be invalid and an ESOS agency will not be permitted to accept, consider or decide the application. For the purposes of the ESOS Act, the application is taken to have not been made.

124. Valid applications for registration may still be made by providers where an instrument is in force, provided that the application does not fall within one (or more) of the classes specified in the instrument. Alternatively, the instrument may be expressed to not apply to certain classes of applications. Where only part of the application applies to a class of applications specified in the instrument, it is intended that the whole of the application be invalid. To avoid doubt, this would not prevent an organisation from resubmitting a valid application which excludes those classes which are the subject (or not subject) of the instrument in force. Enabling the Minister to target one or more classes of applications will assist ESOS agencies to review how a class of particular applications, if approved, may affect that segment of the international education sector. This would not require an ESOS agency to stop processing all applications under sections 9 or 10H of the ESOS Act.

125. It is not appropriate for an instrument made under sections 14E or 14F to be subject to disallowance as it may cause uncertainty for the operations and functions of ESOS agencies, and for providers, as the instrument is to be relied upon from the date it takes effect. As explained above, the Minister will only exercise this power in limited circumstances, for example, where the Minister has concerns relating to the integrity or sustainability of the international education sector and urgent and decisive action is required. As set out in new section 14G, before making legislative instruments under this Division, the Minister is required to consult with ESOS agencies and also obtain the written agreement of the Minister administering the National Vocational Education and Training Regulator Act 2011.

126. In addition, the department will also communicate with providers that could become affected by the making of the instrument to provide them with advance notice. Once the instrument is in effect, an ESOS agency's main resources and focus will likely be diverted to investigating significant concerns in the international education sector as well as continuing to process existing applications under sections 9 or 10H. Providers may also make certain adjustments to their commercial operations and business plans in response to the instrument, to ensure they are able to continue providing domestic focused education services.

127. Subjecting the legislative instrument to the disallowance process may result in further uncertainty in this period of change for the international education sector, in respect of affording providers with commercial and business certainty once an instrument has been made. The matters covered by an instrument should also be under Executive control, given the primary purpose of the instrument will go to the functioning and operations of ESOS agencies and their role in regulating providers where integrity risks are present.

128. New section 14E sets out that the Minister may suspend the ability of providers to make applications for registration.

129. New subsection 14E(1) provides that the Minister may, by legislative instrument, determine that no applications may be made under section 9 until after a day specified in the instrument. The note under subsection 14E(1) explains that section 9 provides that a provider may apply to be registered to provide a course or courses at a location or locations to overseas students.

130. New subsection 14E(2) provides that an application under section 9 is invalid if:

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at paragraph (a), the application is made between the day an instrument made under subsection 14E(1) commences and the day specified in the instrument; and

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at paragraph (b), the application is an application to which the instrument applies.

131. New subsection 14E(3) provides that the day specified in an instrument made under subsection 14E(1) must not be more than 12 months after the day the instrument commences. This means that the maximum period that the Minister is able to suspend the ability of providers to make applications for registration under an instrument is 12 months.

132. New subsection 14E(4) provides that an instrument made under subsection 14E(1) may be expressed to apply to all applications that may be made under section 9 or one or more classes of application that may be made under that section. The note under this subsection explains that for specification by class, see subsection 13(3) of the Legislation Act 2003. This means that an instrument made under subsection 14E(1) can be expressed to apply to certain classes of applications and, for clarity, also expressed to not apply to certain classes of applications as both will form part of the description of the class of application to which the instrument applies.

133. New subsection 14E(5) provides that despite subsection 14(2) of the Legislation Act 2003, an instrument made under subsection 14E(1) may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in an instrument or other writing as in force or existing from time to time. This subsection provides a contrary intention to the requirements in subsection 14(2) of the Legislation Act 2003 so that an instrument made by the Minister can flexibly refer to external documents. The ability to refer to external documents is important as the Minister may need to consider whether an instrument should not apply to applications to add courses to registration made by providers delivering courses identified as essential for addressing new fields or emerging areas of critical skills needs. In such a scenario, it may be necessary for the instrument to refer to independent analysis of skills needs identifying those critical areas. This purpose will benefit some providers seeking to apply for registration as they will be exempt from the application of the instrument, by reference to an external document identifying critical skills needs.

134. While generally, the external documents will apply at the time of commencement of an instrument, it may be necessary to have the flexibility to apply documents as existing from time to time to ensure that the instrument responds to Australia's skills needs so that providers can be registered to deliver relevant courses in respect of required skills. Any external documents incorporated in the instrument will be freely available and the explanatory material accompanying the making of an instrument will identify where providers can find the external document online.

135. New subsection 14E(6) provides that section 42 (disallowance) of the Legislation Act 2003 does not apply to a legislative instrument made under subsection 14E(1).

136. New section 14F sets out that the Minister may suspend the ability of registered providers to make applications to add courses to their registration.

137. New subsection 14F(1) provides that the Minister may, by legislative instrument, determine that no applications may be made under section 10H until after a day specified in the instrument. The note under subsection 14F(1) explains that section 10H provides that a registered provider may apply to add one or more courses at one or more locations to the provider's registration.

138. New subsection 14F(2) provides that an application under section 10H is invalid if:

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at paragraph (a), the application is made between the day an instrument made under subsection 14F(1) commences and the day specified in the instrument; and

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at paragraph (b), the application is an application to which the instrument applies.

139. New subsection 14F(3) provides that the day specified in an instrument made under subsection 14F(1) must not be more than 12 months after the day the instrument commences. This means that the maximum period that the Minister is able to suspend the ability of providers to make applications for registration under an instrument is 12 months.

140. New subsection 14F(4) provides that an instrument made under subsection 14F(1) may be expressed to apply to all applications that may be made under section 10H or one or more classes of application that may be made under that section. The note under this subsection explains that for specification by class, see subsection 13(3) of the Legislation Act 2003. This means that an instrument made under subsection 14F(1) can be expressed to apply to certain classes of applications and, for clarity, also expressed to not apply to certain classes of applications as both will form part of the description of the class of application to which the instrument applies.

141. New subsection 14F(5) provides that despite subsection 14(2) of the Legislation Act 2003, an instrument made under subsection 14F(1) may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in an instrument or other writing as in force or existing from time to time. This subsection provides a contrary intention to the requirements in subsection 14(2) of the Legislation Act 2003 so that an instrument made by the Minister can flexibly refer to external documents. The ability to refer to external documents is important as the Minister may need to consider whether an instrument should not apply to applications to add courses to registration made by providers delivering courses identified as essential for addressing new fields or emerging areas of critical skills needs. In such a scenario, it may be necessary for the instrument to refer to an independent analysis of skills needs identifying those critical areas. This purpose will benefit some providers seeking to apply for registration as they will be exempt from the application of the instrument, by reference to an external document identifying critical skills needs.

142. While generally, the external documents will apply at the time of commencement of an instrument, it may be necessary to have the flexibility to apply documents as existing from time to time to ensure that the instrument responds to Australia's skills needs so that providers can be registered to deliver relevant courses in respect of required skills. Any external documents incorporated into the instrument will be freely available and the explanatory material accompanying the making of an instrument will identify where providers can find the external document online.

143. New subsection 14F(6) provides that section 42 (disallowance) of the Legislation Act 2003 does not apply to a legislative instrument made under subsection 14F(1).

144. New section 14G sets out a requirement for the Minister to consult with ESOS agencies, and also obtain agreement from the Minister administering the National Vocational Education and Training Regulator Act 2011, before making a legislative instrument under new sections 14C, 14D, 14E or 14F.

145. New subsection 14G(1) provides that, before making a legislative instrument under any of sections 14C, 14D, 14E or 14F, the Minister must consult with each of the following:

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at paragraph (a), TEQSA;

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at paragraph (b), the National VET Regulator;

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at paragraph (c), the Secretary;

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at paragraph (d), if the Minister has determined that an entity (other than an entity mentioned in paragraph (a), (b) or (c)) is an ESOS agency for a provider or a registered provider under subsection 6C(2)—that entity.

146. New subsection 14G(2) provides that a failure to consult as required by subsection 14G(1) does not affect the validity of an instrument made under section 14C, 14D, 14E or 14F. This is in order to ensure that any instrument made under these sections can be relied upon in all circumstances, to provide commercial business certainty to providers in the international education sector once an instrument has been made.

147. New subsection 14G(3) provides that, if the Minister does not administer the National Vocational Education and Training Regulator Act 2011, the Minister must not make an instrument under any of sections 14C, 14D, 14E or 14F, without the written agreement of the Minister who administers that Act. This will ensure that appropriate policy settings are in place in relation to providers in the Vocational Education and Training (VET) sector.

Item 33: After subsection 170(1)

148. Item 33 inserts a new subsection (1A) into the delegation provision at section 170 of the ESOS Act.

149. New subsection 170(1A) provides that subsection 170(1) does not apply in relation to the following provisions:

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at paragraph (a), subsections 14C(1) and (3), 14D(1) and (3), 14E(1) and 14F(1) (suspension of applications for registration);

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at paragraph (b), subsection 96B(1) (Minister may make instrument specifying courses).

150. This amendment applies in relation to Parts 3 and 7 of Schedule 1 to the Bill. This means that the Minister must personally exercise his powers in relation to the suspension of applications for registration and specifying courses that will be subject to automatic suspension or cancellation. These powers are expected to have a profound effect on providers and the integrity of the international education sector and are not appropriate to be delegated.

Part 4 —Registration requirements

Division 1 – Amendments

Education Services for Overseas Students Act 2000

151. Part 4 of Schedule 1 to the Bill amends the ESOS Act to require that a provider must provide one or more courses to domestic students (i.e. not overseas students) for consecutive study periods totalling two years, in order to be eligible to apply for registration to provide courses to overseas students under the ESOS Act. This amendment will deter providers who enter the international education sector purely to facilitate migration outcomes and will instead ensure that providers who enter the international education sector intend to deliver educational outcomes for students. Providers that are Table A Providers as listed in section 16-15 of the Higher Education Support Act 2003 and providers that are seeking registration to deliver only standalone English Language Intensive Courses for Overseas Students (ELICOS) or standalone Foundation Program courses, or both, will be exempt from the new registration requirement.

Item 34: Section 5

152. Item 34 inserts a new definition of 'study period' in section 5 of the ESOS Act. Study period means a period of study within a course that meets the requirements (if any) set out in the national code. The note under this definition explains that examples of study periods include terms and semesters.

153. Further examples of study periods include trimesters and monthly teaching periods.

Item 35: Section 11

154. Item 35 makes a minor formatting change by omitting the terms 'A provider' and substituting it with '(1) A provider' in section 11.

Item 36: After paragraph 11(f)

155. Item 36 inserts a new paragraph 11(fa) specifying that a provider meets the registration requirements if the provider satisfies new subsection 11(2) and the provider is not:

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at subparagraph (i), an exempt provider; or

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at subparagraph (ii), a registered provider; or

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at subparagraph (iii), a provider that provides only one or both of an ELICOS or a Foundation Program; or

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at subparagraph (iv), a Table A provider (within the meaning of HESA).

156. Providers that provide only one or both of an ELICOS or only a Foundation Program are exempt from new subsection 11(2) as such providers do not generally deliver courses to domestic students. Table A providers are also exempt from new subsection 11(2) as these providers have demonstrated a commitment to delivering quality education services through meeting the eligibility criteria under the TEQSA Act to be able to self-accredit courses. This also ensures that, in the event of mergers or corporate restructures by Table A providers that result in the creation of a "new" provider that has demonstrated committed to delivery of quality courses, the new provider is not penalised or subject to this provision.

Item 37: At the end of section 11

157. Item 37 inserts new subsections 11(2) and (3) which sets out the new registration requirement. New subsection 11(2) provides that a provider satisfies the subsection if the provider has provided one or more courses for consecutive study periods totalling at least 2 years at a location or locations to students in Australia other than overseas students. The note under this subsection explains that for the definition of study period, see section 5.

158. New subsection 11(3) provides that for the purposes of subsection 11(2), a break that ordinarily occurs, or could reasonably be expected to ordinarily occur, during or between one or more study periods:

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at paragraph (a), counts towards the total of 2 years; and

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at paragraph (b), does not prevent study periods from being consecutive.

159. The note under this subsection explains that such breaks may include weekends, public holidays or semester breaks.

160. A provider can only be registered to provide one or more courses at one or more locations to overseas students, after satisfying the registration requirements set out in section 11 of the ESOS Act. A provider may satisfy subsection 11(2) if they deliver either one long course, or a mixture of shorter courses, for consecutive study periods totalling at least 2 years. It is not intended that a provider be limited to only applying for registration of the same course that was delivered to students other than overseas students.

161. New subsection 11(3) clarifies that regular breaks in between consecutive study periods, as determined by the provider in the normal course of delivery, are counted towards the 2-year delivery requirement. For example, where a provider teaches 2 semesters per year, the mid-semester breaks and natural breaks between semesters, where not interrupted beyond natural breaks, are included in the 2 years.

162. A student other than an overseas student is generally considered to be an Australian citizen, a holder of a permanent visa who is usually resident in Australia or a New Zealand citizen, located in Australia and enrolled with the provider in the relevant course or courses.

Division 2 – Application of amendments

Item 38: Application provision

163. Item 38 provides that the amendments of section 11 of the ESOS Act made by Part 4 of Schedule 1 apply in relation to applications for registration made on or after the commencement of that Part.

Part 5 —Automatic cancellation of registration

Education Services for Overseas Students Act 2000

164. Part 5 of Schedule 1 to the Bill amends the ESOS Act to include a new provision specifying that a provider's registration is automatically cancelled if they have not provided a course at a location to an overseas student in a period of 12 consecutive months. This amendment will address integrity issues posed by dormant providers who may be using their registration under the ESOS Act for non-genuine or fraudulent purposes, and providers that are not demonstrating a genuine commitment to the delivery of courses to overseas students.

165. Where a provider may have a legitimate, reasonable justification for not providing a course or courses during this period, they may apply to their ESOS agency for an extension. An extension can be granted more than once, but the total period of extensions must not exceed 12 months.

Item 39: At the end of Subdivision C of Division 1 of Part 6

166. Item 39 inserts new sections 92A and 92B into of Subdivision C of Division 1 of Part 6 of the ESOS Act which relate to providers' registration conditions, and suspension and cancellation of providers' registrations.

167. New section 92A provides for the automatic cancellation of a registered provider's registration if the provider does not provide a course in a consecutive 12-month period.

168. New subsection 92A(1) provides that the section applies in relation to a registered provider if:

•

at paragraph (a), the provider is not an approved school provider; and

•

at paragraph (b), in a period of 12 consecutive months beginning on or after 1 January 2026 (the measurement period), the provider does not provide any courses at any location to any overseas students.

169. Approved school providers are exempt from this amendment as intakes of overseas students at such providers are generally small and they may not enrol an overseas student every year.

170. New subsection 92A(2) provides that subject to section 92B, the registration of the provider is cancelled for all courses for all locations at the end of the measurement period by force of this subsection. This does not constitute an exercise of administrative power and there is no discretion on an ESOS agency as to the operation of this power.

171. Requiring the automatic cancellation of a provider's registration at the end of a measurement period sends a strong message about the seriousness of protecting the integrity of Australia's international education sector. The Bill uses the term 'cancelled' in reference to a provider's registration as this terminology is consistent with existing provisions in the ESOS Act (for example, section 92 of the ESOS Act). The term 'lapse' is used in the National Vocational Education and Training Regulator Act 2011 because the VET registration scheme operates differently to the ESOS Act, but in application, these terms have the same meaning and result in the same outcome (i.e. a provider no longer being registered).

172. New subsection 92A(3) provides that the ESOS agency for the provider must:

•

at paragraph (a), give the provider a written notice stating that the provider's registration has been cancelled under subsection 92A(2); and

•

at paragraph (b), if the ESOS agency for the provider is not the Secretary—notify the Secretary that the provider's registration has been cancelled under subsection 92A(2).

173. The note under subsection 92A(3) explains that the Secretary must cause the Register to be altered if a provider's registration is cancelled: see section 14B of the ESOS Act.

174. The requirement for a provider's ESOS agency to give notice to the provider is to ensure that the provider is aware that they are no longer registered under the ESOS Act, but that they may apply for re-registration if they wish to do so.

175. New section 92B includes provisions enabling a provider to seek an extension of the relevant measurement period referred to in new paragraph 92A(1)(b) from their ESOS agency. As the automatic cancellation of a provider's registration under subsection 92A(2) does not constitute an exercise of administrative power, internal and external merits review is not available. Instead, an ESOS agency will afford procedural fairness and exercise administrative discretion by determining applications for an extension of the measurement period.

176. New subsections 92B(1) to (3) set out when a registered provider may apply for an extension of the measurement period.

177. New subsection 92B(1) provides that a registered provider may apply to the ESOS agency for the provider to extend the measurement period referred to in paragraph 92A(1)(b).

178. New subsection 92B(2) provides that an application must be made at least 90 days before the measurement period would otherwise end.

179. New subsection 92B(3) provides that an application must be in a form (if any) approved by the ESOS agency for the provider.

180. An application for extension must be made within a reasonable time so that the ESOS agency can give detailed consideration to the reasons for an extension, undertake any further investigations or correspondence with the provider and to decide an appropriate length to extend the measurement period (in light of the provider's circumstances). Legitimate circumstances for an extension may include where:

•

a newly registered provider is facing operational challenges preventing successful delivery of courses to overseas students (for example, lack of staff or funding), and

•

a provider may be affected by a natural disaster or circumstances that are beyond their control impacting on delivery of a course (for example, fire, flooding, or a pandemic event).

181. New subsections 92B(4) to (6) set out provisions relating to the extension.

182. New subsection 92B(4) provides that, if an application is made, the ESOS agency for the provider may, in writing, extend the measurement period in relation to the provider.

183. New subsection 92B(5) provides that the ESOS agency may extend a measurement period in relation to a registered provider under subsection 92B(4) more than once.

184. New subsection 92B(6) provides that the total period of all extensions of a measurement period in relation to a registered provider under subsection 92B(4) must not exceed 12 months.

185. The ESOS agency has discretion to decide each period of extension to the measurement period, as appropriate, taking into consideration the provider's reasons for an extension and the circumstances in which a provider may be able to start delivering a course again. The maximum extension period that an ESOS agency may grant is limited to a total period of 12 months.

Item 40: Section 169AB (in the appropriate position in the table)

186. Item 40 inserts a new item 11 into the table in section 169AB of the ESOS Act that lists reviewable decisions under the ESOS Act. New item 11 provides that a decision by the ESOS agency for a registered provider to extend, or not to extend, the measurement period in relation to the provider under section 92B, is a reviewable decision. The affected provider of this decision is the registered provider.

187. A decision to extend, or not to extend, a measurement period is an exercise of administrative power by the ESOS agency as they will be exercising a discretion when considering and deciding an extension application. As such, any decisions made in respect of valid extension applications are subject to internal and external merits review.

Part 6 — Investigation of offences

Division 1 – Amendments

Education Services for Overseas Students Act 2000

188. Part 6 of Schedule 1 to the Bill amends the ESOS Act to include another new factor ESOS agencies and designated State authorities must take into account when considering whether a provider is fit and proper. This new factor will capture circumstances where a provider is under investigation for a specified offence.

Item 41: Before paragraph 7A(2)(a)

189. Subsection 7A(2) of the ESOS Act lists factors ESOS agencies or designated State authorities must have regard to when deciding whether a provider or registered provider is fit and proper.

190. Item 41 inserts a new paragraph 7A(2)(aa) into subsection 7A(2) of the ESOS Act to require an ESOS agency or designated State authority to consider whether the provider or a related person of the provider is being investigated for an offence covered by subsection 7A(2AA).

Item 42: After subsection 7A(2)

191. Item 42 inserts a new subsection 7A(2AA) to set out the offences referred to in new paragraph 7A(2)(aa), which are:

•

at paragraph (a), an offence under the ESOS Act;

•

at paragraph (b), an offence under Division 270 or 271 of the Criminal Code;

•

at paragraph (c), an offence under section 590 of the Corporations Act 2001;

•

at paragraph (d), an offence specified in a legislative instrument made by the Minister for the purposes of this paragraph.

192. This new consideration in the fit and proper provider test will be relevant to subsection 11(c) of the ESOS Act (where a provider is seeking registration), subsection 83(1B) of the ESOS Act (where an ESOS agency can impose sanctions on a provider if the agency believes on reasonable grounds that the provider is not fit and proper to be registered) and section 89 of the ESOS Act (where a provider's registration is automatically suspended if the provider is no longer fit and proper).

193. This amendment to the fit and proper provider test is included in section 7A of the ESOS Act to ensure that a strong message is sent to providers about the serious consequences that may affect their registration if they are under investigation for a specified offence. Section 89 of the ESOS Act provides that if an ESOS agency is no longer satisfied that a registered provider is fit and proper, their registration is automatically suspended. As the suspension is automatic, the ESOS agency does not need to give the provider procedural fairness in relation to the suspension and the provider is not able to seek review of the suspension. This is consistent with the existing operation of the fit and proper test.

194. New subsection 7A(2AA) sets out offences in the ESOS Act, and specific offences in the Criminal Code and Corporations Act 2001, as the Nixon Review identified instances of such offences occurring in the international education sector. The ability for the Minister to determine additional offences in an instrument is necessary to enable action to be taken should further integrity concerns be identified in the future. These are serious offences, and providers who are being investigated for these offences are placing students at risk of serious exploitation if left unaddressed. Suspending providers who are under investigation for a serious offence ensures that vulnerable students are protected and further exploitation is limited while investigations are underway.

Division 2 – Application of amendments

Item 43: Application provision

195. Item 43 provides that the amendments of section 7A of the ESOS Act made by Part 6 of Schedule 1 apply in relation to:

•

at paragraph (a), applications for registration made on or after the commencement of that Part; and

•

at paragraph (b), applications for registration made before the commencement of that Part but not yet decided as at that commencement; and

•

at paragraph (c), providers registered before, or after the commencement of that Division;

regardless of whether the conduct constituting the alleged offence occurred before, on or after the commencement of that Part.

196. This means that the new consideration inserted into paragraph 7A(2)(aa) related to whether a provider or registered provider is fit and proper to be registered will apply to:

•

a provider applying for registration or re-registration after commencement; and

•

a provider who applied for registration or re-registration before commencement, but the ESOS agency or designated State authority has not yet made a decision on the application; and

•

a provider who is registered before or after commencement, as a matter for the ESOS agency to consider in relation to suspending or applying sanctions on the provider.

197. These amendments apply in relation to investigations, including ongoing investigations, of providers who are already registered and providers that have applied to be registered prior to commencement whose applications have not yet been decided.

198. It is necessary and appropriate to apply these amendments to providers that are already registered to ensure that those unscrupulous providers that are under investigation for serious offences, that occurred or commenced prior to commencement, are subject to this consideration under the fit and proper test. Many investigations for serious offences, commence years after the event. Where providers are under investigation for the serious offences stated in this provision, suspension of enrolment should be able to apply to all providers, to ensure that vulnerable students are not exploited or otherwise continue to be detrimentally affected. Ensuring that all providers, regardless of when they were registered, are subject to the same test and the same standards, will send a strong message to the sector and allow ESOS agencies to, using the fit and proper provider test, ensure that providers remain fit to provide education to students, or risk suspension.

199. It is also necessary and appropriate to apply these amendments to providers that have applied to be registered before commencement of the Bill to ensure that this significant factor can be considered by ESOS agencies prior to registration. This will ensure that the nature and impact of such investigations, and the effect they may have on students, can be considered prior to such providers enrolling students, with the aim of protecting students and avoiding the registration of unscrupulous and unsafe providers. It is also important to note that the fact a provider is under investigation does not mean a provider is automatically unfit to be registered – this is simply one factor that ESOS agencies will consider when determining whether a provider is fit and proper to be registered.

Part 7 — Automatic cancellation of specified courses

Division 1 – Amendments

Education Services for Overseas Students Act 2000

200. Part 7 of Schedule 1 to the Bill amends the ESOS Act to provide for the automatic suspension and cancellation of courses that are specified by the Minister in a legislative instrument. The Minister may specify courses that have systemic issues in relation to the standard of delivery of the course, or that provide limited value to Australia's skills and training needs and priorities, or if it is in the public interest that certain courses are suspended and cancelled. Any instrument made by the Minister under these new provisions will not apply to courses delivered by registered providers that are Table A Providers as listed in section 16-15 of the Higher Education Support Act 2003. The Government recognises that Table A providers do not require the same level of oversight as other providers. A lower level of intervention at the course level is appropriate for Table A providers, as they represent a lower risk in terms of integrity.

Item 44: Section 83A (before the paragraph beginning "The Immigration Minister")

201. Item 44 inserts another new point into the 'Guide to this Part' at section 83A of the ESOS Act. The new point is:

•

Division 1AB provides for automatic suspension and cancellation for courses specified by the Minister in a legislative instrument.

Item 45: Before Division 2 of Part 6

202. Item 45 inserts a new Division 1AB to provide for automatic suspension and cancellation of courses specified by the Minister in a legislative instrument.

203. New section 96B sets out the Minister's power to make a legislative instrument specifying courses.

204. New subsection 96B(1) provides that the Minister may, by legislative instrument, specify one or more classes of courses for the purposes of this section if the Minister is satisfied that:

•

at paragraph (a), there are or have been systemic issues in relation to the standard of delivery of the courses included in the class; or

•

at paragraph (b), the courses included in the class provide limited value to Australia's current, emerging and future skills and training needs and priorities; or

•

at paragraph (c), it is in the public interest to do so.

205. New subsection 96B(2) provides that, in considering whether to make such an instrument, the Minister may have regard to any of the following matters:

•

at paragraph (a), whether the courses included in the class are provided by registered providers that are breaching or have breached:

o

at subparagraph (i), the ESOS Act; or

o

at subparagraph (ii), the national code; or

o

at subparagraph (iii), if the ELICOS Standards or Foundation Program Standards apply in relation to the provider—those Standards; or

o

at subparagraph (iv), a condition of the provider's registration;

•

at paragraph (b), completion rates of accepted students of those courses;

•

at paragraph (c), the number of transfers of accepted students from or to those courses;

•

at paragraph (d), the location or locations at which providers are registered to provide those courses.

206. New subsection 96B(3) provides that subsection 96B(2) does not limit the matters to which the Minister may have regard in considering whether to make an instrument under subsection 96B(1).

207. The Minister's power will be exercised in circumstances where there are providers who deliver courses that do not result in quality education outcomes for students and there are inherent issues with the quality of the course delivery. For example, systemic issues may be identified by the completion rates of overseas students in these courses and the number of transfers to and from the course. Systemic issues may also be identified by courses that are exclusively delivered to overseas students, excluding ELICOS courses and Foundation programs. There are also low-cost courses which are susceptible to use by non-genuine providers and students as a channel to work and extend their time in Australia. For example, the Joint Standing Committee on Foreign Affairs, Defence and Trade's interim report, Quality and Integrity – the Quest for Sustainable Growth: Interim Report into International Education identified that 'VET Business Leadership and Management' courses are generalist in nature and do not address Australia's skill needs.

208. The Minister may also exercise this power to specify courses or classes of courses subject to suspension or cancellation where the Minister is satisfied it is in the public interest to do so. Classes of courses that may be in the public interest for the Minister to cancel may include courses which raise clear integrity concerns. For example, the Minister may consider it to be in the public interest to cancel courses which are used by students to subvert immigration and education systems. Similarly, courses that are exploitative of their students may fall into this category. Such courses threaten the integrity, quality and reputation of Australia's international education sector.

209. New subsection 96B(4) provides that, without limiting subsection 96B(1) or any other provision of the ESOS Act, a class of courses may be specified by reference to any matter, including but not limited to the kind of course, the kind of provider registered to provide the course, the location of the course and any other circumstances applying in relation to the course. For example, the Minister could specify that providers with unlimited self-accrediting authority are exempt from a cancellation instrument, given these providers are trusted to accredit their courses at a high quality, as per the Higher Education Standards Framework (Threshold Standards) 2021 (Threshold Standards). This would mean that courses delivered by these providers would not be suspended or cancelled as part of the cancellation instrument.

210. New subsection 96B(5) provides that despite subsection 14(2) of the Legislation Act 2003, an instrument made under subsection 96B(1) of this section may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in an instrument or other writing as in force or existing from time to time.

211. This subsection provides a contrary intention to the requirements in subsection 14(2) of the Legislation Act 2003 so that an instrument made by the Minister can flexibly refer to external documents. The ability to refer to external documents is important as the Minister may need to consider whether an instrument should or should not apply to certain classes of provider or classes of courses and do so by reference to an external document.

212. While, generally, the external documents incorporated into any instrument will apply at the time of commencement of the instrument, it may be necessary to have the flexibility to apply documents as existing from time to time to ensure that the instrument responds to Government objectives for applying or not applying to classes of providers or classes of courses. For example, to reflect Australia's skills needs at the time or to respond to public reporting by ESOS agencies regarding regulatory decisions. Any external documents incorporated into the instrument will be freely available and the explanatory material accompanying the making of an instrument will identify where providers can find the external document online.

213. New subsection 96B(6) requires that, before the Minister makes an instrument under subsection 96B(1), the Minister must consult with such persons or entities from among those (if any) specified in an instrument under subsection 98B(8) as the Minister considers appropriate.

214. New subsection 96B(7) provides that a failure to consult as required by subsection 96B(6) does not affect the validity of an instrument made under subsection 96B(1).

215. New subsection 96B(8) provides that, for the purposes of new subsection 96B(6), the Minister may, by legislative instrument:

a.

specify one or more persons or entities; and

b.

specify circumstances in which consulting any one or more of those persons or entities is to be considered.

216. Setting out consultation requirements in a legislative instrument allows the required consultation to be flexible and respond to emerging risks. Consultation could be required with different persons or entities based on the reasons for which the Minister is cancelling a class of courses. For example, requiring consultation with entities with responsibilities relating to Australia's skills needs would be appropriate when cancelling classes of courses because they have limited value to Australia's current, emerging and future skills and training needs and priorities. This would not be appropriate when cancelling classes of courses based on systemic issues in relation to the standard of delivery of the courses.

217. New subsection 96B(9) provides that, if:

•

at paragraph (a), an instrument under subsection 96B(1) specifies a class of courses that includes a VET course within the meaning of the National Vocational Education and Training Regulator Act 2011; and

•

at paragraph (b), the Minister does not administer that Act;

the Minister must not make the instrument without the written agreement of the Minister who administers that Act.

218. New section 96C provides for when applications for registration of courses specified in a legislative instrument made by the Minister under subsection 96B(1) are taken not to be made.

219. New subsection 96C(1) (other than a Table A provider within the meaning of the Higher Education Support Act 2003) provides that section 96C applies if:

•

at paragraph (a), a provider makes an application under:

o

at subparagraph (i), section 9 to register a course; or

o

at subparagraph (ii), section 10D to renew the registration of a course; or

o

at subparagraph (iii), section 10H to add a course to the provider's registration; and

•

at paragraph (b), the course is in a class of courses specified in an instrument in force under subsection 96B(1).

220. New subsection 96C(2) provides that such an application is taken not to have been made in relation to the course. This means that any application made by a provider to register a course, renew the registration of a course or add a course to the provider's registration, will be taken not to have been validly made if the application relates to a course in a class of courses specified in a legislative instrument made by the Minister under subsection 96B(1).

221. This provision prevents providers from immediately seeking to re-register courses which have been cancelled because of systemic issues in relation to the standard of delivery of the courses, the courses provide limited value to Australia's skills and training needs and priorities, or it is in the public interest to do so.

222. Providers will be prevented from re-registering cancelled courses while the courses are included in an instrument and the instrument is still in force. When the instrument ceases to be in force or is varied such that a course is no longer in a class of courses included in the instrument, providers will be able to apply to re-register the course.

223. New section 96D provides for when a specified course is automatically suspended.

224. New subsection 96D(1) provides that section 96D applies if:

•

at paragraph (a), a registered provider (other than a Table A provider within the meaning of the Higher Education Support Act 2003) is registered to provide a course at a location or locations; and

•

at paragraph (b), the course is included in a class of courses specified in an instrument under subsection 96B(1); and

•

at paragraph (c), 30 days after that instrument commences, one or more students are enrolled in and have commenced, but not completed or withdrawn from, the course.

225. New subsection 96D(2) provides that the provider's registration for the course is suspended for all locations by force of this subsection.

226. New subsection 96D(3) provides that a provider whose registration is suspended for a course under this section must not:

•

at paragraph (a), do any thing for the purpose of recruiting or enrolling overseas students or intending overseas students for the course; or

•

at paragraph (b), solicit or accept any money from an overseas student or an intending overseas student for the course other than overseas students who are enrolled in and have commenced the course; or

•

at paragraph (c), if an accepted student of the provider has not commenced the course—permit the student to commence the course.

227. New subsection 96D(4) provides that the provider is still registered for the course for the location for all other purposes.

228. These provisions mean that, despite a course being specified by the Minister in an instrument under new subsection 96B(1), if there is at least one student who is enrolled and has commenced, but not completed, the specified course, the provider's registration for the course will be suspended but the provider can continue to deliver the course to the students still enrolled, as well as solicit and accept money from these students. Effectively, this allows a provider to 'teach out' the course so as not to cause detriment to students who are currently studying in one of these courses. A provider cannot enrol or recruit any new overseas students to the course or permit an accepted student to commence the course.

229. New section 96E provides for when a specified course is automatically cancelled.

230. New subsection 96E(1) provides that section 96E applies if:

•

at paragraph (a), a registered provider (other than a Table A provider within the meaning of the Higher Education Support Act 2003) is registered to provide a course at a location or locations; and

•

at paragraph (b), the course is included in a class of courses specified in an instrument under subsection 96B(1); and

•

at paragraph (c), 30 days after that instrument commences, there are no students that are enrolled in and have commenced, but not completed or withdrawn from, the course.

231. New subsection 96E(2) provides that section 96D also applies if:

•

at paragraph (a), a provider's registration for a course is suspended under section 96D; and

•

at paragraph (b), all students that were enrolled in and had commenced the course before the suspension have since completed or withdrawn from the course.

232. New subsection 96E(3) provides that the provider's registration for the course is cancelled for all locations by force of this subsection.

233. These provisions set out the circumstances in which a specified course may be automatically cancelled. Relevantly, this is where there are no students enrolled in and have commenced, but not completed, the course. If there are, new subsection 96B applies and the provider's registration for the course is suspended until all students that were enrolled in and had commenced the course have completed the course. When that happens, the provider's registration for the course is then automatically cancelled.

Item 46: After section 176D

234. Item 46 inserts new section 176E to provide for compensation for acquisition of property that is otherwise than on just terms. New subsection 176E(1) provides that if:

•

at paragraph (a), apart from this section, the operation of Division 1AB of Part 6 would result in the acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph); and

•

at paragraph (b), the acquisition would be invalid because of paragraph 51(xxxi) of the Constitution;

the Commonwealth is liable to pay a reasonable amount of compensation to the person in respect of the acquisition.

235. New subsection 176E(2) provides that, if the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia or the Supreme Court of a State or Territory for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

236. This section means that the Commonwealth is only liable to pay compensation if a court finds that, in administering new Division 1AB of Part 6 of the ESOS Act, the Commonwealth has acquired the property of a provider (within the meaning of paragraph 51(xxxi) of the Constitution) and in acquiring that property has not given the provider just terms (within the meaning of paragraph 51(xxxi) of the Constitution). Compensation would not automatically be payable to a provider simply because it is affected by the suspension or cancellation of a course. Rather, a provider would have to successfully argue that the automatic suspension and cancellation of its course under Division 1AB of Part 6, had such an effect on its existing property (e.g. rights under contracts with students) that it amounted to an acquisition of that property for the purposes of the Constitution, and that, in all the circumstances, the acquisition of that property was not on just terms.

Division 2 – Application of amendments

Item 47: Application provision

237. Item 47 provides that Division 1AB of Part 6 of the ESOS Act, as inserted by Part 7 of Schedule 1 to the Bill, applies in relation to a course whether a provider is registered to provide the course before, on or after the commencement of that Part.

238. This means these amendments may apply to courses in which students are currently enrolled, and have commenced. This is required to ensure that courses currently being offered or delivered that have systemic issues in relation to the standard of delivery of the course, or provide limited value to Australia's skills and training needs and priorities, or raise public interest concerns, may be subject to the Minister's determination. Under new subsection 96D, if one or more students are enrolled and have commenced, but not yet completed, the course, the provider's registration for the course will be suspended but providers can continue to deliver an affected course to those students. Under new subsection 96E, if there are no students enrolled or commenced in the course, or when all students have completed the course, the provider's registration for the course will be cancelled.

Part 8 — Internal review

Division 1 – Amendments

Education Services for Overseas Students Act 2000

Item 48: At the end of section 169AD

239. Section 169AD of the ESOS Act deals with applications for internal review of reviewable decisions. If an ESOS agency makes a reviewable decision in relation to a provider, the affected provider may apply to the ESOS agency for review of the decision.

240. Item 48 amends section 169AD by adding new subsections 169AD(3) to (5).

241. New subsection 169AD(3) provides that, after receiving such an application for internal review, the ESOS agency may give a written notice to the applicant to determine a stay of the operation of the decision until the outcome of the review has been reached.

242. There may be circumstances where an ESOS agency may consider it appropriate for the operation of a decision to be stayed. For example, an ESOS agency could make a decision to cancel the registration of a provider, but upon receiving an application for review of this decision under section 169AD it may make a determination that would stay the effect of the decision. This would allow the provider to continue operations for the duration of the effect of the stay, subject to appropriate conditions, pending the outcome of an application made under section 169AD.

243. New subsection 169AD(4) provides that if the ESOS agency makes a subsection 169AD(3) determination, the operation of the decision is stayed:

•

at paragraph (a), from either the start of the day the determination is made or the start of a later day if specified in the determination; and

•

at paragraph (b), until either a decision is made under section 169AE in relation to the reviewable decision or an application is made under section 169AG.

244. By default, the operation of the decision is stayed from the start of the day the determination is made, but the ESOS agency may specify a later day if it wishes for the operation to be stayed later. The stay will last until an internal reviewer makes a decision under section 169AE to affirm, vary or set aside the decision, or the affected provider makes an application to the Administrative Review Tribunal (ART) for review of the reviewable decision under section 169AG.

245. The first note under subsection 169AD(4) explains that section 169AE deals with internal review, while section 169AG deals with review by the ART. The second note under subsection 169AD(4) provides 'For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.' Subsection 33(3) of the Acts Interpretation Act 1901 provides that where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws) the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument. This note thus clarifies that, if an ESOS agency makes a stay determination under subsection 169AD(3), it can also vary or revoke that determination.

246. New subsection 169AD(5) provides that a subsection 169AD(3) determination is subject to any conditions as may be specified in the determination.

Items 49 and 50: Section 169AF (heading) and Subsection 169AF(1)

247. Section 169AF of the ESOS Act provides that reviews of reviewable decisions are to be made within 90 days after the application is made under section 169AD of the ESOS Act.

248. Items 49 and 50 omit '90' and substitute it with '120' so that the timeframe for internal review decisions is amended from 90 to 120 days. This timeframe is required to give ESOS agencies sufficient time to review complex decisions and align with the timeframe the ESOS agency for registered VET providers, the National VET Regulator (currently ASQA), has to reconsider reviewable decisions under section 200 of the National Vocational Education and Training Regulator Act 2011.

Division 2 – Application of amendments

Item 51: Application provision

249. Item 51 provides that the amendments of sections 169AD and 169AF of the ESOS Act made by Part 8 of Schedule 1 apply in relation to:

•

at paragraph (a), applications for internal review made on or after the commencement of that Part; and

•

at paragraph (b), applications for internal review made before the commencement of that Part but not yet decided or taken to have been decided as at that commencement.

250. This means an ESOS agency may decide to stay the operation of a decision subject to an application for internal review made on or after commencement, or an application for internal review made before commencement but where the internal review has not yet been finalised. The new timeframe of 120 days to make a reviewable decision will apply to new and existing internal review applications not yet finalised.

Part 9—TEQSA

Division 1 – Amendments

Tertiary Education Quality and Standards Agency Act 2011

251. Part 9 of Schedule 1 to the Bill amends the TEQSA Act to support greater regulatory oversight of delivery of higher education courses offshore by Australian education providers. The amendments will require providers to:

•

receive authorisation from TEQSA before delivering Australian courses of study offshore;

•

notify TEQSA of any new or changed offshore delivery arrangements; and

•

provide an annual report to TEQSA detailing their offshore delivery arrangements.

252. The proposed amendments align with the 2023 Australian Universities Accord, which recognised TEQSA's role in strengthening quality and accountability in the sector and proposed a review of, and enhancements to, TEQSA's regulatory powers to ensure they remain fit for purpose in a rapidly changing sector.

253. The amendments will ensure that registered higher education providers have the appropriate governance mechanisms in place to manage risks associated with the provision of an offshore Australian course of study. The amendments will provide greater transparency on the provision of offshore Australian courses of study.

254. The amendments provide certainty to registered higher education providers on the timing associated with transitional arrangements, authorisation applications, reporting and the application of offences and civil penalty provisions. This will ensure that registered higher education providers are able to appropriately plan for the provision of offshore Australian courses of study. The amendments also provide clarity on the application of offence and civil penalty provisions.

255. These requirements minimise the additional burden on providers while facilitating the expansion of higher quality transnational education in a diverse set of markets. The requirements are designed to draw on information that is, or should be, held by any provider that is engaged in the provision of offshore Australian courses of study.

256. These amendments will enhance the integrity and reputation of Australian higher education delivered offshore and ensure that Australian higher education programs delivered offshore are delivered to the same high quality as those delivered onshore. The requirements set out in these amendments will also provide continued assurance to offshore governments and partner institutions that Australian providers have the strong governance structures and regulatory oversight needed to deliver high-quality offshore education.

Item 52: Section 4 (before the paragraph beginning "Registered higher education providers")

257. Item 52 inserts a new point into the 'Simplified outline' at section 4 of the TEQSA Act to explain that registered higher education providers must be authorised to offer or confer Australian higher education awards for Australian courses of study provided at offshore premises.

Item 53: Section 4

258. Item 53 inserts ', authorises the provision of Australian courses of study at offshore premises' after 'registers providers' so the point now reads 'The Tertiary Education Quality and Standards Agency (TEQSA) registers providers, authorises the provision of Australian courses of study at offshore premises and accredits courses of study. TEQSA regulates higher education using principles relating to regulatory necessity, risk and proportionality, and using a standards-based quality framework.' This is required to reflect TEQSA's role in providing authorisation to providers in delivering Australian courses of study at offshore premises.

Item 54: Section 5

259. Item 54 inserts a new definition of 'authorised offshore provider' in section 5 of the TEQSA Act. 'Authorised offshore provider' means a registered higher education provider authorised under new Part 3A and listed on the register of authorised offshore providers under new paragraph 198(1)(c). New Part 3A sets out the requirements for a provider applying for and obtaining authorisation for offshore delivery of Australian courses of study.

Item 55: Section 5 (after paragraph (a) of the definition of condition)

260. Item 55 inserts new paragraph (aa) into the definition of 'condition' in section 5 of the TEQSA Act so that the definition now refers to any condition imposed under section 44J (about conditions on authorisation) that has been subsequently varied.

Item 56: Section 5

261. Item 56 inserts two new definitions into the definition section at section 5 of the TEQSA Act: 'offshore provided Australian course of study' (which is defined in new section 44A), and 'offshore premises' which is defined to mean premises not in Australia.

Item 57: After subsection 18(1)

262. Item 57 inserts new subsection 18(1A) to provide that, if an entity applies for registration as a higher education provider under section 18 of the TEQSA Act, the entity may also apply to TEQSA for authorisation as an authorised offshore provider.

263. The note under subsection 18(1A) directs the reader to section 44B for information about the procedure for applying to be authorised as an authorised offshore provider.

Item 58: At the end of subsection 36(1)

264. Subsection 36(1) of the TEQSA Act provides that, upon receiving a registered higher education provider's application for renewal of registration, TEQSA may renew the provider's registration if satisfied that:

•

at paragraph (a), the provider continues to meet the Threshold Standards, made under section 58 of the TEQSA Act; and

•

at paragraph (b), the provider and each person who makes or participates in making decisions that affect the whole, or a substantial part, of the provider's affairs, is a fit and proper person.

265. Item 58 adds new paragraph 36(1)(c) to subsection 36(1) to require TEQSA to be satisfied that, if the provider is an authorised offshore provider, the provider has complied with conditions of authorisation imposed under new Division 2 of Part 3A (authorisation).

Item 59: After Part 3

266. Item 59 inserts new Part 3A (Authorisation for providing courses offshore).

267. New Division 1 of Part 3A sets out provisions related to applying for authorisation.

268. New section 44A provides the meaning of 'offshore provided Australian course of study'. New subsection 44A(1) provides that an 'offshore provided Australian course of study' means an Australian course of study that is provided at offshore premises, but does not include a course, or a course included in a class of courses:

•

at paragraph (a), covered by subsection 44A(2); or

•

at paragraph (b), that the Minister determines under subsection 44A(3) is not an offshore provided Australian course of study.

269. New subsection 44A(2) provides that each of the following is not an offshore provided Australian course of study:

•

at paragraph (a), an Australian course of study with a higher education provider that involves a formal exchange agreement between the Australian provider and another entity that is not in Australia (the 'offshore entity') that provides for the undertaking of study:

o

at subparagraph (i), with the offshore entity at an offshore premises; and

o

at subparagraph (ii), for a period of no longer than 12 months; and

o

at subparagraph (ii), that contributes to the requirements of the course of study;

•

at paragraph (b), an Australian course of study with a higher education provider that involves the undertaking of research:

o

at subparagraph (i), not in Australia; and

o

at subparagraph (ii), that contributes to the requirements of the course of study.

270. Courses that are not 'offshore provided Australian courses of study' do not require providers to obtain authorisation to deliver these courses. New subsection 44A(2) sets out particular types of courses which are not 'offshore provided Australian courses of study', and therefore providers do not need to be authorised to deliver these courses. If a provider delivers other courses that are 'offshore provided Australian courses of study', they will need to obtain an authorisation to do so.

271. New paragraph 44A(2)(a) includes courses which involve a formal exchange or study abroad agreement between an Australian provider and an entity not in Australia, where a student undertakes study with the offshore entity for up to a year (for example, a semester or academic year abroad), and the student receives credit towards their Australian course of study for this study undertaken abroad. In these circumstances, providers would not need to obtain an authorisation to deliver these courses. However, if the provider delivers other courses that are 'offshore provided Australian courses of study', they will still need to obtain an authorisation to do so.

272. New paragraph 44A(2)(b) includes courses with an Australian higher education provider that involve research undertaken overseas, normally as part of a research unit or units, and where the student receives credit towards their Australian course of study for completing this research. In these circumstances, providers would not need to obtain an authorisation to deliver these courses. However, if the provider delivers other courses that are 'offshore provided Australian courses of study', they will still need to obtain an authorisation to do so.

273. New subsection 44A(3) provides that, for the purposes of paragraph 44A(1)(b), the Minister may, by legislative instrument, determine that a course, or a course included in a class of courses, is not an offshore provided Australian course of study.

274. New subsection 44A(4) provides that, without limiting subsection 44A(3), a class of courses may be determined by reference to any matter, including, but not limited to, any of the following:

•

at paragraph (a), the kind of course;

•

at paragraph (b), the kind of provider accredited to provide the course;

•

at paragraph (c), any other circumstances applying in relation to the course.

275. This subsection means the Minister may, by legislative instrument, specify courses of study for which a provider would not need to obtain an authorisation to deliver. The instrument may identify particular courses or a class of courses, which could be made by reference to the kind of course, the kind of provider of the course, or any other circumstances applying to the course (for example, the particular mode of delivery of the course or the location that the course is offered in).

276. New section 44B sets out the requirements for providers applying for authorisation under new Part 3A.

277. New subsection 44B(1) provides that a regulated entity who is, or has applied to become, a registered higher education provider may apply to TEQSA for authorisation to offer or confer Australian higher education awards for one or more offshore provided Australian courses of study.

278. New subsection 44B(2) provides that any application made must be:

•

at paragraph (a), in the approved form; and

•

at paragraph (b), accompanied by any information, documents and assistance that TEQSA requests; and

•

at paragraph (c), accompanied by the fee (if any) determined by TEQSA under section 158 for an assessment under new Part 3A.

279. New subsection 44B(3) provides that an application may only be made on or after 1 January 2026.

280. New section 44C explains how TEQSA will decide applications for authorisation.

281. New subsection 44C(1) provides that TEQSA may grant the provider's application for authorisation if TEQSA is satisfied that:

•

at paragraph (a), the applicant is a registered higher education provider; and

•

at paragraph (b), the applicant meets the Threshold Standards.

282. This amendment will assure the quality and integrity of Australian courses of study delivered offshore, by ensuring that providers must meet the requirements to be a registered higher education provider (including the conditions of registration in Division 2 of Part 3 of the TEQSA Act) and the Threshold Standards to be authorised to deliver Australian courses of study offshore.

283. New subsection 44C(2) provides that TEQSA must make a decision on the application:

•

at paragraph (a), within a default period of 9 months after receiving an application; or

•

at paragraph (b), if a longer period is determined by TEQSA under subsection 44C(3), within that period.

284. This subsection also provides that if a fee is determined under section 158 for an application for authorisation under Part 3A, TEQSA is taken to receive the application when it receives payment of the fee.

285. New subsection 44C(3) provides that, if TEQSA is satisfied that, for reasons beyond its control, a decision on the application cannot be made within the default period in paragraph 44C(2)(a), TEQSA may determine a longer period, not exceeding a further 9 months, within which it must make a decision on the application.

286. New subsection 44C(4) provides that TEQSA must determine this longer period no later than 6 weeks before the end of the default period mentioned in paragraph 44C(2)(a).

287. New subsection 44C(5) provides that, if TEQSA determines a longer period, it must, within 7 days of making the determination:

•

at paragraph (a), provide written notice to the applicant; and

•

at paragraph (b), give written reasons for the longer period.

288. New subsection 44C(6) provides that, if TEQSA has not made a decision within the applicable period under subsection 44C(2), then TEQSA is taken to have rejected the application.

289. New section 44D provides that TEQSA must give written notice to the applicant, within 30 days of its decision to grant or reject an application for authorisation as an authorised offshore provider, of:

•

at paragraph (a), the decision; and

•

at paragraph (b), if TEQSA grants the application—the day on which the authorisation commences; and

•

at paragraph (c), if TEQSA rejects the application—the reasons for the decision.

290. The note under section 44D provides that TEQSA must also notify of any conditions imposed under new subsection 44J(1) on the authorisation (see section 44K).

291. New section 44E provides for the commencement and effect of authorisation.

292. New subsection 44E(1) provides that the authorisation commences on the day specified in the notice given under new section 44D.

293. New subsection 44E(2) provides that the authorisation has effect subject to the following:

•

at paragraph (a), the authorisation ends immediately if the provider ceases to be registered as a registered higher education provider;

•

at paragraph (b), Division 1 of Part 7 (about cancelling authorisation and other administrative sanctions).

294. New Division 2 of Part 3A provides for the conditions that are, or may be imposed on, a provider's authorisation.

295. New section 44F provides that a registered higher education provider must:

•

at paragraph (a), comply with the conditions imposed by sections 44G and 44H on the provider's authorisation as an authorised offshore provider; and

•

at paragraph (b), comply with any conditions imposed under subsection 44J(1) on the provider's authorisation as an authorised offshore provider.

296. New sections 44G and 44H set out conditions that a registered higher education provider authorised as an authorised offshore provider must comply with.

297. New section 44G requires authorised offshore providers to provide notice in writing about certain events and changes in circumstances.

298. New subsection 44G(1) provides that a registered higher education provider must give TEQSA notice in writing if any of the below events or changes in circumstances occurs or is likely to occur:

•

at paragraph (a), an offshore provided Australian course of study provided by the provider first begins to be provided wholly or partly by another entity;

•

at paragraph (b), an offshore provided Australian course of study provided by the provider first begins to be provided at a different premises;

•

at paragraph (c), the provider first begins to provide an offshore provided Australian course of study;

•

at paragraph (d), the provider ceases to provide an offshore provided Australian course of study.

299. New subsection 44G(2) sets out the information the notice must include, which is:

•

at paragraph (a), details of the event or change;

•

at paragraph (b), the day the event or change occurs or is likely to occur;

•

at paragraph (c), the name of the Australian course of study;

•

at paragraph (d), the address of the offshore premises;

•

at paragraph (e), if the course is provided by another entity—the name of that entity.

300. New subsection 44G(3) provides that the notice must be given:

•

at paragraph (a), as soon as the provider is aware, or would reasonably be expected to have become aware, of the event or change; and

•

at paragraph (b), no later than 90 days before the day the event or change occurs or is likely to occur.

301. New section 44H provides requires that authorised offshore providers provide annual reports about courses of study provided by the provider at offshore premises.

302. New subsection 44H(1) provides a condition that an authorised offshore provider must, by 31 October of each calendar year, prepare and give to TEQSA a report that contains information about each offshore provided Australian course of study provided by the provider (including provided wholly or partly by another entity) during the most recently completed academic year for the course of study.

303. New subsection 44H(2) provides that this report must:

•

at paragraph (a), be in a manner (if any) specified in a legislative instrument made under subsection 44H(3); and

•

at paragraph (b), contain the information (if any) required by a legislative instrument made under subsection 44H(3).

304. New subsection 44H(3) provides that TEQSA may, by legislative instrument, specify requirements for reports under this section.

305. New section 44J provides for how additional conditions may be imposed on the authorisation of a provider.

306. New subsection 44J(1) provides that TEQSA may impose additional conditions on the authorisation of a provider as an authorised offshore provider.

307. New subsection 44J(2) provides that TEQSA may, on its own initiative, vary or revoke a condition imposed under subsection 44J(1).

308. New subsection 44J(3) provides that TEQSA may also vary or revoke a condition imposed under subsection 44J(1) if the provider applies for the variation or revocation.

309. New subsection 44J(4) provides that the provider's application must be:

•

at paragraph (a), in the approved form; and

•

at paragraph (b), accompanied by any information, documents and assistance that TEQSA requests; and

•

at paragraph (c), accompanied by the fee (if any) determined under section 158 for an application under this section.

310. New section 44K provides that TEQSA must, within 30 days of making a decision under subsections 44J(1), (2) or (3), notify the registered higher education provider, in writing, of:

•

at paragraph (a), the decision; and

•

at paragraph (b), the reasons for the decision; and

•

at paragraph (c), if the decision is to impose a condition—the period for which the condition is imposed.

311. New Division 3 provides for how a provider may withdraw its authorisation.

312. New subsection 44L(1) provides that a registered higher education provider may apply to TEQSA, in the approved form, to withdraw its authorisation.

313. New subsection 44L(2) provides that, upon receiving the provider's application to withdraw its authorisation, TEQSA may grant the application if TEQSA is satisfied that it is appropriate to allow the authorisation to be withdrawn.

314. New section 44M provides that TEQSA must, within 30 days of its decision to grant or reject an application to withdraw an authorisation, notify the registered higher education provider, in writing, of:

•

at paragraph (a), the decision; and

•

at paragraph (b), if TEQSA grants the application—the day on which the withdrawal takes effect; and

•

at paragraph (c), if TEQSA rejects the application—the reasons for the decision.

Item 60: After paragraph 98(b)

315. Section 98 of the TEQSA Act sets out the circumstances in which Subdivision A, which relates to sanctions, would apply.

316. Item 60 inserts new paragraph 98(ba) to provide that Subdivision A applies if a registered higher education provider has breached a condition imposed on its authorisation as an authorised offshore provider.

Item 61: Section 98 (note)

317. Item 61 inserts '44J' into the note below section 98, so that the note now says 'Note: TEQSA may impose conditions under section 32, 44J or 53 instead of, or in addition to, applying a sanction under this Subdivision.'

Item 62: After section 101

318. Item 62 inserts new section 101AA into the TEQSA Act to provide for how a provider's authorisation may be cancelled.

319. New subsection 101AA(1) provides that, if a provider has breached a condition imposed on its authorisation, TEQSA may cancel the provider's authorisation as an authorised offshore provider.

320. New subsection 101AA(2) provides that, before cancelling the provider's authorisation, TEQSA must give the provider a written notice of TEQSA's intention to cancel the provider's authorisation for specified reasons, and a reasonable opportunity to make representations to TEQSA in relation to the proposed decision.

321. New subsection 101AA(3) provides that TEQSA must have regard to any representations made by the provider.

Item 63: Section 101A

322. Item 63 omits 'or 101' and substitutes it with ', 101 or 101AA' so that section 101A of the TEQSA Act now reads 'TEQSA must, within 30 days after making a decision under section 99, 100, 101 or 101AA, notify the provider, in writing, of:

(a)

the decision; and

(b)

the reasons for the decision.'

Item 64: At the end of Division 1 of Part 7

323. Item 64 adds new section 103A to provide that an entity whose authorisation under Part 3A is cancelled cannot reapply for authorisation for 2 years after the cancellation takes effect, or such shorter period as TEQSA considers appropriate.

Item 65: After section 106

324. Item 65 inserts new section 106A to prescribe the consequences for a provider offering a regulated higher education award offshore if not authorised.

325. New subsection 106A(1) provides that a higher education provider commits an offence if:

•

at paragraph (a), the higher education provider offers or confers an Australian higher education award for the completion of an Australian course of study; and

•

at paragraph (b), the course of study is an offshore provided Australian course of study; and

•

at paragraph (c), the higher education provider is not an authorised offshore provider.

326. New section 106A provides that the penalty for this offence is 120 penalty units.

327. New subsection 106A(2) provides that a higher education provider contravenes this subsection if:

•

at paragraph (a), the higher education provider offers or confers an Australian higher education award for the completion of an Australian course of study; and

•

at paragraph (b), the course of study is an offshore provided Australian course of study; and

•

at paragraph (c), the higher education provider is not an authorised offshore provider.

328. New subsection 106A(2) provides that the civil penalty for contravention of new subsection 106A(2) is 240 penalty units.

329. The penalties under this section reflect penalties for similar contraventions under the TEQSA Act. In particular, the penalty for offering or conferring an award under section 106A is the same as the penalty under section 112 for providing a course of study where the course is not accredited, which is directly comparable but in the domestic context. These penalties are appropriate to deter higher education providers from providing an Australian course of study offshore without authorisation from TEQSA. Design of these penalties is consistent with the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.

Item 66: After section 113

330. Item 66 inserts new section 113A to provide that a registered higher education provider contravenes this section if:

•

at paragraph (a), a condition is imposed on the provider's authorisation as an authorised offshore provider; and

•

at paragraph (b), the provider does an act or omits to do an act; and

•

at paragraph (c), the act or omission breaches the condition.

331. New section 113A provides that the civil penalty for contravention of new section 113A is 120 penalty units.

332. The penalties under this section reflect penalties for similar contraventions under the TEQSA Act. In particular, the penalty for breaching a condition on authorisation under section 113A is the same as the penalty under section 114 for breaching a condition of accreditation of a course of study, which is directly comparable but in the domestic context. These penalties are appropriate to ensure that registered higher education providers adhere to conditions imposed on the provider's authorisation as an authorised offshore provider. Design of these penalties is consistent with the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.

Items 67 and 68: Section 183 (after table item dealing with a decision under section 43) and Section 183 (after table item dealing with a decision under section 100)

333. The table in section 183 of the TEQSA Act lists the decisions of TEQSA that are reviewable decisions.

334. Item 67 inserts the following decisions into the table in section 183:

•

A decision under section 44C to reject an application for authorisation

•

A decision under subsection 44J(1) to impose a condition on an authorisation

•

A decision under subsection 44J(2) to vary a condition imposed on an authorisation

•

A decision under section 44L to reject an application to withdraw an authorisation

335. Item 68 inserts 'A decision under section 101AA to cancel an authorisation' into the table in section 183 of the TEQSA Act.

336. Decisions made by TEQSA in relation to registration of providers and accreditation of courses are reviewable decisions under section 183 of the TEQSA Act. It is appropriate that decisions made by TEQSA in relation to authorisations are also reviewable decisions. These decisions are reviewable decisions to promote transparency, accountability and ensure procedural fairness.

Item 69: At the end of section 198(1)

337. Subsection 198(1) of the TEQSA Act provides that TEQSA must establish and maintain a register of registered higher education providers and each entity that was a registered higher education provider and whose registration has been cancelled other than because of a reason set out in the Register Guidelines (made by TEQSA under section 204).

338. Item 69 inserts new paragraphs 198(1)(c) and (d) to provide that TEQSA must also establish and maintain a register of:

•

at paragraph (c), authorised offshore providers; and

•

at paragraph (d), each entity that was an authorised offshore provider and whose authorisation has been cancelled other than because of a reason set out in the Register Guidelines.

Division 2 – Application of amendments

Item 70: Definitions

339. Item 70 provides the following definitions for the purposes of Division 2 of Part 10 of Schedule 1 to the Bill:

•

'commencement time' means the commencement of Part 9 of Schedule 1 to the Bill; and

•

'new law' means the TEQSA Act as amended by Part 9.

Item 71: Transitional provision – existing provider arrangements

340. Item 71 is a transitional provision to deal with existing provider arrangements.

341. Subitem 71(1) provides that item 71 applies to a registered higher education provider if:

•

at paragraph (a), as at the commencement time, the registered higher education provider:

o

at subparagraph (i), is providing one or more offshore provided Australian courses of study; or

o

at subparagraph (ii), has entered into an arrangement to provide one or more offshore provided Australian courses of study; and

•

at paragraph (b), the provider began to provide the course of study, or entered into the arrangement to provide the course of study, before the date of introduction of the Bill; and

•

at paragraph (c), the provider gives TEQSA notice in writing of the provision of the course of study, or the arrangement to provide the course of study:

o

at subparagraph (i), within 60 days of the commencement time; and

o

at subparagraph (ii), in accordance with any requirements specified by TEQSA by notice in writing.

342. Subitem 71(2) provides that, on and after the commencement time, the registered higher education provider is taken to be an authorised offshore provider for the purposes of the new law.

343. This will allow providers who are currently delivering Australian courses of study offshore to continue to offer courses and provide certainty for students enrolled in those courses, without the possibility that the provider's application for authorisation could be rejected, as long as they provide the relevant information to TEQSA within the required timeframe.

Item 72: Application provision—offences and penalties

344. Item 72 provides for the application of new offences and penalties.

345. Subitem 72(1) provides that section 106A of the new law applies in relation to an Australian higher education award that is offered or conferred by a higher education provider after:

•

at paragraph (a), if, before the start of 31 October 2026, the entity applies for authorisation under section 44B and as at that time, a decision is not made on the application—the time a decision on the application is made; or

•

at paragraph (b), otherwise—the start of 31 October 2026.

346. This allows providers who have not yet obtained an authorisation from TEQSA by 31 October 2026, to provide Australian higher education courses offshore after 31 October 2026, as long as they have submitted an application for authorisation before 31 October 2026 and TEQSA is still considering it. This means these providers will not be disadvantaged where TEQSA has not yet made a decision on their application.

347. Subitem 72(2) provides that section 113A of the new law applies in relation to acts and omissions that occur on or after the commencement time.

Item 73: Application provision—conditions

348. Item 73 provides for the application of new conditions.

349. Subitem 73(1) provides that sections 36, 44G and 98 of the new law apply on and after the commencement time. This means that from the date of commencement of this Part:

•

TEQSA must be satisfied that a provider has complied with conditions of authorisation before renewing the provider's registration;

•

Providers must, as a condition of authorisation, give TEQSA notice about certain events and changes in circumstances as set out in new section 44G;

•

TEQSA may impose a sanction on providers that have breached a condition imposed on its authorisation as an authorised offshore provider.

350. Subitem 73(2) provides that section 44H of the new law applies in relation to 31 October of each year, starting from 31 October 2026.

351. This means the first annual reports on a provider's offshore delivery will need to be provided to TEQSA on 31 October 2026.

Part 10—Indigenous medical students

Higher Education Support Act 2003

352. Under the Higher Education Support Act 2003 (HESA) Table A providers can currently receive uncapped funding for First Nations students (referred to as 'Indigenous persons' in HESA) enrolled in Commonwealth supported places for all courses of study except courses of study in medicine. These uncapped courses are currently referred to as 'demand driven higher education courses'. All courses of study in medicine, including courses of study undertaken by First Nations students, currently fall under the definition of a 'designated higher education course'.

353. This means that the Commonwealth cannot provide 'uncapped' funding for Table A providers in relation to courses of study in medicine undertaken by First Nations students. Instead, the Minister needs to allocate a specified number of Commonwealth supported places to Table A providers in relation to courses of study in medicine (see paragraph 30-10(1)(a) of HESA), which effectively provides a cap for the number of First Nations students that can be enrolled in courses of study in medicine.

354. Part 10 of Schedule 1 to the Bill makes amendments to HESA to provide more funding to Table A providers for First Nations students, by expanding the definition of 'demand driven higher education courses' to allow those providers to receive uncapped funding for courses of study in medicine undertaken by First Nations students, under Part 2-2 of HESA.

Division 1 – Amendments

Items 74 and 75: At the end of paragraph 30-12(1)(a) and Subsection 30-12(2)

355. Items 74 and 75 amend section 30-12 of HESA to make it clear that courses of study in medicine, other than demand driven higher education courses, are 'designated higher education courses'. These are technical amendments necessary to reflect that courses of study in medicine undertaken by First Nations students are no longer designated higher education courses. This reflects the changes made by item 76 to expand the definition of 'demand driven higher education course' and provide uncapped funding for First Nations students enrolled in Commonwealth supported places in courses of study in medicine.

Item 76: Clause 1 of Schedule 1 (definition of demand driven higher education course)

356. Item 76 repeals the current definition of 'demand driven higher education course' and replaces it with a new definition which provides that each of the following is a demand driven higher education course:

•

at paragraph (a): a course of study that:

o

is undertaken by an Indigenous person; and

o

is leading to a higher education award that is a bachelor degree or bachelor honours degree; and

o

is not a designated higher education course;

•

at paragraph (b), a course of study that:

o

is undertaken by an Indigenous person; and

o

is a course of study in medicine; and

o

is not a course, or a course of a kind, specified in a determination under subsection (1AA).

357. New paragraph (a) of the definition reflects the existing drafting of the definition of demand driven higher education course, and is unchanged. New paragraph (b) of the definition has been inserted to extend demand driven higher education courses to courses of study in medicine being undertaken by First Nations students, except for those courses specified in a determination made by the Minister under subclause 1(1AA) of Schedule 1 to HESA.

Item 77: After subclause 1(1) of Schedule 1

358. Item 77 inserts new subclause 1(1AA) in Schedule 1 of HESA which provides that, for the purposes of subparagraph (b)(iii) of the definition of demand driven higher education course in subclause 1(1), the Minister may, by legislative instrument, determine either or both of the following:

•

at paragraph (a), a specified course of study; or

•

at paragraph (b), a specified kind of course of study.

359. It is expected that the Minister will only make an instrument under subclause 1(1AA) in exceptional circumstances.

360. For instance, the Minister may make an instrument in circumstances where First Nations students are undertaking tuition-free medical studies pathways. If these students enrolled in a Commonwealth supported place, this would result in them being financially worse off as they would be obligated to pay a student contribution amount. In these circumstances, the Minister could specify the course of study in an instrument to exclude the course of study.

Division 2—Application of amendments

Item 78: Application provision

361. Item 78 provides that the amendments of HESA made by Part 10 of Schedule 1 to the Bill applies in relation to the following:

•

at paragraph (a), funding agreements entered into under Part 2-2 of HESA in respect of 2026 and later calendar years;

•

at paragraph (b), grants payable under that Part for 2026 and later calendar years.

362. This item clarifies that Table A providers can only receive uncapped funding for First Nations students enrolled in Commonwealth supported places for courses of study in medicine for 2026 and future years.

Schedule 2—Amendments relating to family assistance

Part 1 – Cost and financial information

Division 1—Amendments

A New Tax System (Family Assistance) (Administration) Act 1999

363. The amendments in this part create a specific power under new section 203AA to allow the Secretary to compel approved ECEC providers that are constitutional corporations to provide cost and financial information for the Early Education Service Delivery Prices Project (SDP Project).

364. The purposes of the SDP Project are to provide the government with a data-driven understanding of the reasonable costs of delivering safe and quality ECEC services, including where costs vary by cohort, location, care or business types. The SDP Project is intended to gather evidence to enable the government to better understand ECEC quality service delivery costs to underpin future policy and funding reforms for the ECEC sector.

Item 1: Paragraph 111(2)(d)

365. Item 1 amends section 111 to make it such that a person cannot apply for Administrative Review Tribunal (ART) review of a decision made under section 203AA.

366. This amendment is consistent with the current approach to section 203A, which contains a similar discretionary power for the Secretary to require a person to provide financial information relating to large child care providers. Having regard to the Administrative Review Council's guide, What decisions should be subject to merit review, the exclusion of merits review for a decision to issue a notice under section 203AA is appropriate given this is a preliminary and procedural decision that will not have substantive consequences for the recipient of the notice.

Items 2 and 3: After paragraph 162(1)(b); After paragraph 162(2)(da)

367. Information obtained under new section 203AA will be protected information (as defined in section 3 of the Family Assistance Administration Act). Section 162 authorises the handling of protected information in limited circumstances.

368. Item 2 amends subsection 162(1) to specify the SDP Project as a purpose for which a person may obtain protected information. This is intended to ensure that a person (such as a departmental officer) may obtain the information provided to the Secretary (or delegate) in response to a notice issued under new section 203AA, for the purposes of the person's role in the SDP Project.

369. Subsection 162(2) provides that a person may handle protected information for certain purposes. Item 3 specifies the purposes of the SDP Project as being another permitted purpose for subsection 162(2). This authorises a person to make a record of, disclose, or otherwise use protected information if the record, disclosure or use is made for the purposes of the SDP Project (which purposes are described above).

370. The amendments to expressly reference the SDP Project in section 162 are not intended to limit the interpretation of other protected information provisions. For example, because of the amendments in Part 2 of Schedule 2 to the Bill, information collected under new section 203AA may also be used or disclosed if the Secretary reasonably believes the use or disclosure is reasonably necessary for research, statistical analysis or policy development of matters of relevance to the department in its administering of the family assistance law. If the data from the SDP Project is sufficiently aggregated such that it is no longer 'about a person', then the reports relating to the project may be published. Alternatively, the Secretary may also publish information obtained under section 203AA in accordance with proposed section 162B(2), if the aggregated information does not disclose information that directly identifies a provider or service, to enable sharing of the findings of the SDP Project.

371. The information obtained under new section 203AA is not intended to be used by the Secretary for compliance purposes given that is not the intended purpose of the collection of the information.

Item 4: At the end of Division 3 of Part 8A

372. Item 4 inserts new Division 3A containing requirements for approved providers that are corporations. Division 3A contains new section 203AA allowing the Secretary, by written notice, to obtain cost and financial information from approved child care providers that are constitutional corporations.

373. Under the current Family Assistance Administration Act, the Secretary's information-gathering powers enable the Secretary to obtain some, but not all the information required for the SDP Project. Section 203BA empowers the Secretary to obtain certain financial information, however, this only applies to large providers and does not include some of the cost information and nor is the information provided in a format that is necessary to enable the data analysis required for the project or within the time required for the project.

374. In the first instance, the intention is to request that approved providers participate in the SDP Project on a voluntary basis. However, the SDP Project requires sufficient data from ECEC providers to ensure an adequate sample size and to avoid sampling bias. The new power in proposed section 203AA is intended to ensure adequate collection of data so that future reforms based on findings from the SDP project are robust and data-driven.

375. New subsection 203AA(1) allows the Secretary, by written notice, to require an approved provider that is a constitutional corporation to provide information relating to the operation of a child care service of the approved provider. The power applies to information relating to a cost incurred during a period; financial information relating to a period; and any other information the Secretary reasonably believes is required to achieve the purposes of the SDP Project. This includes contextual information about delivery of child care such as service offerings and staffing activities.

376. The cost and financial information to be obtained under the notice may include information such as total income, income sources, anonymised payroll information, rental and capital cost information, tax paid in previous years and anticipated expenditure over the next financial year. A provider receiving a notice under section 203AA will need to provide the information specified even if they have reported some of this information under the requirements applicable to large child care providers.

377. To issue a notice under section 203AA, the Secretary must reasonably believe that the approved provider is capable of giving the information. Support will be available to assist providers to gather the information required and to reduce any administrative burden on providers.

378. The notice must be given in accordance with the requirements in subsection 203AA(2). The notice must specify the information required; the relevant period to which the information is to relate; and the period by which and the manner in which the approved provider must comply with the notice. It is anticipated that the information will be requested in relation to the past 2 financial or calendar years.

379. New subsection 203AA(3) provides for a civil penalty of 60 penalty units for non-compliance with a notice issued under subsection 203AA(1). This is consistent with the civil penalties applicable to similar information notice requirements such as sections 203A and 203BA. Civil penalty provisions under the Family Assistance Administration Act are subject to monitoring under Part 2 of the Regulatory Powers (Standard Provisions) Act 2014 (Cth) (Regulatory Powers Act), are enforceable under Part 4 of that Act and may also be subject to an infringement notice under Part 5 of that Act. Compliance with the family assistance law (which will include new section 203AA) is also a condition of continued approval for providers (see section 195A). Design of this penalty is consistent with the guidance in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.

380. New subsection 203AA(4) is a formal provision clarifying that the disclosure of personal information in response to a notice under section 203AA is authorised by law for the purposes of the Privacy Act 1988 (Cth) and any law of a State or Territory in relation to privacy.

381. New subsection 203AA(4) provides that a constitutional corporation is a corporation to which paragraph 51(xx) of the Constitution applies (that is, foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth). This clarifies the constitutional basis for the power in section 203AA. Limiting the scope of section 203AA as only applying to constitutional corporations will have minimal on the SDP Project given the large majority of approved providers are such corporations. For those approved providers that section 203AA will not apply, the department will seek a sufficient sample to participate in the SDP Project on a voluntary basis to ensure the SDP Project avoids sampling bias in its data collection and analysis.

Items 5 and 6: Before subparagraph 219UA(1)(b)(vi); Section 219UB (after table item 12)

382. Part 2 of the Regulatory Powers Act creates a framework for monitoring whether provisions of an Act have been, or are being, complied with; and whether information given in compliance, or purported compliance, with a provision of an Act is correct.

383. Section 219UA sets out the provisions of the Family Assistance Administration Act that are subject to the monitoring powers in Part 2 of the Regulatory Powers Act. These provisions include a listed child care information provision in section 219UB.

384. Items 5 and 6 are technical provisions that include the new section 203AA as being subject to monitoring under Part 2 of the Regulatory Powers Act and as a listed child care information provision.

385. This means that the monitoring powers in Part 2 of the Regulatory Powers Act, such as entry and inspection powers, may be used to ascertain whether an approved provider has complied with a notice issued under new section 203AA, and whether the information given in response to the notice is correct. This is consistent with the current approach for similar information gathering powers.

Item 7: Before paragraph 221(4)(a)

386. Section 221 of the Family Assistance Administration Act enables the Secretary to delegate their powers under the family assistance law. Subsection 221(4) lists certain powers which the Secretary must not delegate to officers other than Senior Executive Service (SES) employees or acting SES employees.

387. Item 7 lists new section 203AA in subsection 221(4). This limits the delegation of the Secretary's power to require cost and financial information under section 203AA to an SES employee or acting SES employee.

388. Delegation of this power to SES level only balances the need for operational flexibility and timeliness (which is critical given the SDP Project is time-limited) while ensuring oversight by appropriately qualified and experienced senior officers. Delegates will be required to have an adequate understanding of the project to ensure the appropriate application of the delegated power.

Division 2—Application of amendments

Item 8: Application provision

389. Item 8 provides that the amendments made by this Part apply in relation to information required from a person from the day of commencement, whether the person obtained the information before or after commencement. This is intended to ensure that the SDP Project can commence immediately, based on information already available to approved providers. There are a range of existing requirements for approved providers to maintain records relating to cost and financial information. Applying the new power to both new and existing information should not impose significant additional burden on approved providers.

Part 2 – Protected information

Division 1 – Amendments

A New Tax System (Family Assistance) (Administration) Act 1999

390. Division 2 of Part 6 of the Family Assistance Administration Act restricts the handling of 'protected information'. This term is defined in section 3 to include 'information about a person' that was obtained by an officer under the family assistance law that is or was held in records of the Department.

391. Relevantly, the definition of protected information is not limited to individuals as 'a person' includes other legal persons such as a body corporate in accordance with section 2C of the Acts Interpretation Act 1901 (Cth). This means that the secrecy provisions in the Family Assistance Administration Act apply to information about approved providers collected under the family assistance law even if the information is not inherently sensitive and regardless of whether the information is already publicly available.

392. The amendments in Part 2 of Schedule 2 to the Bill broaden the scope to use, disclose and publish protected information relating to approved providers and their child care services. The amendments also strengthen the integrity and transparency of current ECEC data governance by enabling the handling of protected information for research, statistical analysis and policy development.

Item 9: After subsection 162(2)

393. Item 9 inserts two new subsections into section 162 which authorises specific actions with respect to protected information.

394. New subsection 162(2AA) authorises making a record of, disclosing, or otherwise using protected information if the Secretary reasonably believes that the record, disclosure or use is reasonably necessary for one or more of the following purposes:

•

research, monitoring, evaluation or reporting of matters of relevance to a Department administering the family assistance law;

•

statistical analysis of matters of relevance to a Department administering the family assistance law; or

•

policy development of matters of relevance to a Department administering the family assistance law.

395. This provision is modelled on subsection 202(2C) of the Social Security (Administration) Act 1999 (SSA Act), which contains a similar secrecy regime.

396. 'Matters of relevance to a Department' administering the family assistance law would encompass matters falling within a relevant department's responsibilities under the Administrative Arrangements Order. Currently, the Department of Social Services administers the family assistance law except to the extent it is administered by the Department of Education which administers the family assistance law insofar as it relates to CCS ACCS, child care providers and child care services. Departments administering the family assistance law also administer programs delivering support and assistance to recipients of family assistance payments, and policy initiatives and programs supporting education outcomes, which do not necessarily fall within the ambit of the family assistance law. 'Matters of relevance' is intended to include programs and policies of this kind administered by the departments, as well as any other programs and policies supporting recipients of CCS, ACCS or child care providers and services administering CCS or ACCS.

397. Relevantly, protected information may be disclosed for similar purposes under paragraph 162(2)(e) read with paragraph 168(1)(a) of the Family Assistance Administration Act and the Family Assistance (Public Interest Certificate Guidelines) (Education) Determination 2018 (PIC Guidelines). This means that the amendment does not materially change or increase the current privacy impact. Inserting subsection 162(2AA) recognises the appropriateness of providing for the authorisation in primary legislation, is consistent with the SSA Act and better facilitates the handling of protected information for these genuine public interest purposes without the need for a public interest certificate.

398. In many cases, it is unlikely that it would be reasonably necessary to disclose protected information containing personal information for the purposes listed in new paragraphs 162(2AA)(d)-(f). To the extent that protected information containing personal information may be disclosed under subsection 162(2AA), appropriate safeguards are in place. The Secretary must reasonably believe that the disclosure is reasonably necessary for one or more of the specific public interest purposes in paragraphs 162(2AA)(d)-(f), which are limited to matters of relevance to a department administering the family assistance law. In addition, the recipient of the information may only handle the information in accordance with the secrecy provisions in the Family Assistance Administration Act. Further, the obligations under Australian Privacy Principles set out in the Privacy Act continue to operate alongside the secrecy provisions. To the extent this amendment may impact privacy, this is reasonable, necessary and proportionate to these legitimate aims.

399. New subsection 162(2AB) authorises making a record of, disclosing, or otherwise using protected information if the information has already been lawfully made publicly available and the information is in relation to an approved provider, a provider who is suspended or no longer approved, or a child care service of such a provider (whether or not the provider currently provides the service). These amendments are not likely to have any material impact on the privacy of individuals unless the approved provider or service is a sole trader.

400. Information collected under the family assistance law includes information that many providers make publicly available on their websites (for example, the provider's name, address, operating hours), or information (for example, an ABN) available on other websites such as the Australian Business Register. This amendment is intended to ensure that the secrecy provisions do not unduly restrict the handling of information by officers of the Department that is already lawfully available to the public. To the extent this amendment impacts the privacy, for example, of a sole trader, the impact will likely be minimal if the information is lawfully in the public domain and is business information.

Item 10: After subsection 162(2A)

401. Subsection 162(2A) currently provides that a person may use protected information to produce information in an aggregated form that does not disclose, either directly or indirectly, information about a particular person. Information that has been aggregated in this way is no longer 'about a person' and therefore is not 'protected information'.

402. This can be a high threshold to meet because protected information that has been aggregated can still be 'about a person' and therefore remain protected, if it discloses information indirectly about a particular person even if that person's identity cannot be reasonably inferred from the information. This means that the use and disclosure of aggregated statistical data about approved providers and services may require some of the data to be suppressed before the data can be published. The need to suppress data that cannot be sufficiently aggregated to be no longer 'about a person' can compromise the utility of the data and the objective of ensuring transparency.

403. Item 10 inserts a new subsection 162(2B) to provide that, if protected information is about an approved provider, a provider who is no longer approved or whose approval has been suspended, or a child care service of such a provider, a person may use that information to produce information in an aggregated form if it does not directly identify the provider or child care service of the provider. That aggregated information may then be disclosed to any person. Information would directly identify a provider or service, for example, by naming the provider or service. If the provider or service was not identified in the information, but was reasonably identifiable, this would not directly identify the provider or service. For example, information that there are three child care services in a particular geographic area does not directly identify the service or provider and could therefore be disclosed under subsection 162(2B), even if only one provider was in fact operating services in that area meaning that the provider is identifiable.

404. New subsection 162(2B) seeks to overcome the limitation posed by the broad meaning of 'about a person' to enable greater access and use of aggregated data but only if it relates to approved providers and their services and does not directly identify a provider or service. This new provision will not apply to protected information that is about individuals, unless it is in relation to their being an approved provider or service if they are a sole trader. Given the information is aggregated and the approved provider or service is not directly identified, the privacy impact on a sole trader is likely to be minimal. Data aggregated in this way may still constitute protected information if it is 'about a person' even if it does not directly identify a provider or service. Accordingly, new paragraph 162(2B)(e) authorises the disclosure of this type of aggregated protected information.

405. This new subsection 162(2B) promotes transparency and integrity in the administration of CCS by ensuring that aggregated information about approved providers and their services can be readily used and disclosed for reporting purposes and better support research and data transparency.

Item 11: At the end of section 162

406. Item 11 inserts new subsection 162(6). It is a technical amendment included for the avoidance of doubt to ensure the new and current subsections in section 162 as amended work effectively together, and are not intended to limit each other or impact or read down the current provisions in section 162.

Item 12: Before subsection 162B(1)

407. Section 162B currently empowers the Secretary to publish certain information relating to approved providers. These amendments are not likely to have a material impact on the privacy of individuals, unless the approved provider or service is a sole trader. Noting the provisions are aimed at promoting transparency and the quality and safety of child care, any privacy impact on sole traders is reasonable and proportionate.

408. Item 12 inserts new subsection 162B(1A) to authorise the Secretary to publish, by electronic means, information (including protected information) relating to an approved provider or their child care service, if the Secretary is satisfied that the information will, or is likely to result in one or more of the following outcomes:

•

promoting transparency and accountability regarding the administration of CCS and ACCS by the provider;

•

promoting quality and safety of child care services of the provider; or

•

encouraging compliance by the provider with the family assistance law.

409. The above outcomes are all matters of genuine public interest having regard to the significant investment of Commonwealth money in the CCS scheme (over $16 billion in the last financial year) and that the quality and safety of child care services is a key community concern. The information published may only relate to approved providers and the Secretary must first be satisfied that the information is likely to result in one of the above outcomes.

410. The Secretary may delegate powers under the family assistance law under section 221, which will include the powers under new subsections 162B(1A), (2) and (2A). Consistent with the existing power in subsection 162B(1), for practical and timeliness reasons, the delegation of these powers is not limited to SES level. However, it is anticipated that only suitably qualified and experienced officers at Executive Level 2 or above will be delegated these publication powers which, again, is consistent with the current delegations for existing section 162B.

Item 13: Subsection 162B(1)

411. This amendment is consequential to the insertion of new subsection 162B(1A). It makes clear that the existing list of matters the Secretary can currently publish, by electronic means, under subsection 162B(1) are examples of what may be published by the Secretary in relation to an approved provider and are not intended to be an exhaustive list.

Item 14: After paragraph 162B(1)(e)

412. Item 14 inserts three new additional examples of information the Secretary may electronically publish in relation to approved providers. These examples are the type of each child care service; the number of children enrolled in each service and the address and contact details of each child care service for which the provider is approved. The publication of this information will promote transparency and accountability for the administration of the CCS scheme and assist the public to be better informed as to child care services. It remains the case that the Minister may prescribe in the Minister's rules other information that the Secretary may publish under this subsection.

Item 15: Subsection 162B(2)

413. Item 15 repeals existing subsection 162B(2) and inserts new subsections 162B(2), (2A) and (2B).

414. New subsection 162B(2) clarifies that the Secretary may publish protected information that is in an aggregated form covered by subsection 162(2B). This provision does not limit the Secretary's powers to publish information under subsections 162B(1A) or (1). An example of this type of information includes some of the information in the Department's quarterly report on CCS which is informative data for both the general public and government agencies alike. Specific reference to information that has been aggregated under subsection 162(2A) is not required as information aggregated to that level is no longer 'about a person' and therefore not 'protected information' and can already be published.

415. New subsection 162(2A) provides that the Secretary may authorise specified persons or bodies to electronically publish information covered by subsections 162B(1A), (1) or (2). The specified persons include: an agency or authority of the Commonwealth; a Department of State, or an agency or authority of a State or Territory; and a body established under a law of the Commonwealth, a State or Territory. For example, this provision expressly enables the Secretary to authorise the Australian Children's Education and Care Quality Authority to publish information about providers and their services on www.startingblocks.gov.au which is a useful central depository of information about providers and their services and assists families to make informed choices about child care services.

416. For avoidance of doubt, new subsection 162B(2B) clarifies that the publishing of protected information under section 162 is for the purposes of the family assistance law. The note underneath this provision explains that these authorisations as to the use and disclosure of protected information for the purposes of the family assistance law mean that the use or disclosure is authorised by law for the purposes of the Privacy Act and other laws. This means that current subsection 162(2) is no longer necessary and can, therefore, be repealed.

Division 2 – Application of amendments

Item 16: Application provision

417. This is an application provision. It provides that the amendments of sections 162 and 162B made by this Part apply in relation to the use or disclosure (however described) of information that occurs on or after commencement of this Part, whether the information was obtained or generated before, on, or after commencement.

Part 3 – Technical amendments

A New Tax System (Family Assistance) (Administration) Act 1999

418. This Part contains two technical amendments.

419. The first is a technical amendment to ensure a consistent approach is taken on internal review and on ART review of entitlement to be paid CCS or ACCS in relation to information that is not to be taken into account when there are favourable changes to an individual's circumstances.

420. The second is to make a consequential amendment inadvertently not included at the time the relevant amendment was made.

Item 17: Subsection 82(3) (paragraph (a) of the definition of debt)

421. Item 17 is a technical amendment to include a debt due under section 71DA (debts in respect of CCS or ACCS – absences before first attendance or after last attendance) within the definition of 'debt' for the purpose of section 82.

422. Section 71DA was inserted in the Family Assistance Administration Act by the Family Assistance Legislation Amendment (Child Care Subsidy) Act 2023. This provision ensures that responsibility for certain CCS or ACCS debts incurred by individuals under subsection 71B(1) for absences before a child's first attendance or after a child's last attendance lies with approved providers.

423. Section 82 of the Family Assistance Administration Act sets out the methods of recovery by the Commonwealth for debts owed by a person (which includes both providers and individuals). Subsection 82(3) sets out which 'debts' this section applies to and, relevantly, includes debts incurred under section 71B.

424. This technical amendment corrects an oversight that a consequential amendment was not made to subsection 82(3) to include section 71DA as a debt to which that section applies at the time section 71DA was inserted into the Family Assistance Administration Act.

Items 18, 19 and 20: Paragraph 137A(1)(b); Subparagraph 137A(1)(b)(i); After subparagraph 137A(1)(b)(i)

425. Paragraph 137A(1)(b) currently limits how far back in time an individual may receive backpay where certain information, that leads to a favourable change with respect to an individual's entitlement to CCS or ACCS, is not provided promptly. The amendment in item 20 (being the inclusion of new paragraph 137A(1)(b)(ia)) includes, as information that is not to be taken into account under section 137A, information to the effect that a child is an Aboriginal or Torres Strait Islander child and the information was notified to the Secretary in a manner approved by the Secretary. This makes section 137A match the equivalent section 105C and ensures that decisions on internal review and on review by the ART are consistent.

426. This amendment was intended to have been included in the Family Assistance Legislation Amendment (Cheaper Child Care) Act 2022 (Cheaper Child Care Act). The Cheaper Child Care Act amended section 105C of the Family Assistance Administration Act to allow internal departmental review decisions to provide for up to four weeks of CCS back pay when a person voluntarily notified that the child for whom the individual is eligible for CCS or ACCS is an Aboriginal and/or Torres Strait Islander child. This was consistent with long-standing CCS policy settings on CCS back pay for all other equivalent notifications, as any changes that would increase the amount of CCS a person can receive can only be backdated to up to 4 weeks before the person providing notification of the change. However, equivalent amendments to section 137A of the Family Assistance Administration Act to apply the same back pay terms for CCS-related ART decisions were inadvertently omitted from the Cheaper Child Care Act. This technical amendment ensures a consistent approach to internal review and ART review.

427. Items 18 and 19 are amendments consequential to the insertion of new subparagraph 137A(1)(b)(ia).

Item 21: Application provision

428. Item 21 is an application provision. It provides that the amendment to section 82 made by this Part applies in relation to a debt that is recoverable under section 82 on or after commencement of this Part, whether the debt is incurred before, on or after commencement of this Part.

429. Item 21 also provides that the amendments to section 137A made by this Part apply to an application for ART review made on or after the day this Part commences.

Part 4—Date of effect

Division 1—Amendments

A New Tax System (Family Assistance) (Administration) Act 1999

430. The amendments in this Part ensure that the date of effect of CCS entitlement and eligibility decisions under the Family Assistance Administration Act relating to end-of-financial year reconciliation processes align with the date these decisions take effect in the CCS system. The CCS system is the online system used to administer the CCS. It holds records such as enrolments and session reports and is used to calculate payments for families.

431. CCS reconciliation is a key part of program integrity, and its purpose is to ensure individuals receive the correct CCS entitlement for a financial year. Currently, if an individual does not meet the CCS reconciliation deadlines, the date of effect for ceasing or re-instating their CCS entitlement and/or eligibility in the CCS system is the first Monday of the next CCS fortnight. A CCS fortnight is a 2-week period that starts every second Monday. This current practice aligns with CCS policy intent and is simple for families to understand, noting most CCS entitlement and eligibility decisions take effect from the following CCS Monday.

432. The amendments are retrospective to ensure that the relevant decisions for CCS reconciliations made since 2 July 2018 are deemed to have been validly made. The amendments ensure any debts that may have arisen as a result of the misalignment are waived. This prevents the need for recovery action to be taken against families who were overpaid. To mitigate any potential adverse impact on individuals underpaid because of the discrepancy, the amendments provide a mechanism for individuals to seek compensation if they can show that the retrospective amendments resulted in an acquisition of their property other than on just terms.

433. In addition, the amendments clarify that the CCS system can make an automated decision to cease an individual's CCS eligibility if they have failed to meet the second reconciliation deadline.

Item 22: After subsection 67CC(1)

434. For an individual to be entitled to CCS for one or more sessions of care provided to a child in a week, the Secretary must be satisfied that (among other things) the individual is eligible for CCS by fee reduction and that the individual meets the information requirements for the week (see section 67CD). The information requirements include that the individual has met the CCS reconciliation conditions for the previous income year if the first deadline for the previous income year has passed (see subsection 67CD(10)). If the Secretary is not satisfied that the individual is entitled to CCS for the week, the Secretary must make a determination of no entitlement under subsection 67CD(8).

435. Section 67CC deals with determining an individual's eligibility for CCS by fee reduction. It provides that the Secretary may determine that an individual's eligibility has ceased in certain circumstances, including if the Secretary has made determinations under subsection 67CD(8) in relation to the individual (otherwise than because of subsection 105E(2)) for at least 52 consecutive weeks (see subparagraph 67CC(2)(b)(i)). This occurs if the Secretary has made determinations under subsection 67CD(8) that the individual is not entitled to be paid CCS or ACCS for each week of the year between the first and second deadlines because the individual has failed to meet the reconciliation conditions.

436. Item 22 inserts a new subsection 67CC(1A) to provide for the mandatory ceasing of an individual's eligibility for CCS by fee reduction if they have not met the CCS reconciliation conditions by the second deadline. It requires the Secretary to determine that an individual for whom a determination under paragraph 67CC(1)(a) is in effect in relation to a child is not eligible for fee reduction for the child if the individual has not met the CCS reconciliation conditions for an income year by the second deadline for the income year. New subsection 67CC(1B) clarifies that a determination under subsection 67CC(1A) only applies in relation to the claim in respect of the earlier determination under paragraph (1)(a).

437. The 'CCS reconciliation conditions' are met by an individual by lodging a tax return and the Commissioner of Taxation making an assessment of their taxable income for the relevant income year, or where they are not required to lodge a tax return, by notifying Centrelink of their income (see section 103A of the Family Assistance Administration Act). These obligations also apply to any partner or ex-partner of an individual during that income year.

438. The first deadline by which the CCS reconciliation conditions must be met is one year after the end of the income year in which the CCS entitlement was determined – that is, by 30 June of the first income year after the relevant income year (see section 103B). The second deadline is two years after the end of the income year in which CCS entitlement was determined (see section 103C).

439. In essence, new subsection 67CC(1A) replicates existing paragraph 67CC(2)(b) except that it removes any discretion of the Secretary to determine an individual is no longer eligible if they have not met the CCS reconciliation conditions by the second deadline and instead makes it mandatory for that decision to be made. This makes it clear that such a decision can be automated by the CCS system consistent with section 223 of the Family Assistance Administration Act. It remains the case that the Secretary has the discretion under section 103B to extend the second deadline if satisfied that special circumstances prevented the individual from meeting that deadline.

Items 23 and 24: Subsection 67CC(2)(heading); Paragraph 67CC(2)(b)

440. Item 23 amends the heading of subsection 67CC(2) to make clear that this subsection applies to when an individual's eligibility to CCS by fee reduction ceases on discretionary grounds. Item 24 repeals paragraph 67CC(2)(b) because this reason for ceasing an individual's eligibility for CCS by fee reduction has been moved to new subsection 67CC(1A) and is now a mandatory ground for ceasing eligibility. The remaining paragraphs provided for in subsection 67CC(2) are matters, for which if they apply, the Secretary may determine at their discretion that an individual is not eligible in relation to a child for CCS by fee reduction for that child.

Items 25, 26, and 27: Paragraph 67CC(4)(a); Subparagraph 67CC(4)(b)(i); After subsection 67CC(4)

441. The amendments made by each of items 25, 26 and 27 are to address the date of effect of a determination of a new eligibility claim under the Family Assistance Administration Act so that it aligns with the operation of the CCS system. In the CCS system, the determination takes effect on the later of: the beginning of the CCS fortnight that follows a day 28 days prior to the new claim or the beginning of the CCS fortnight that follows the date that the reconciliation conditions were met. Whereas under the Act, a new eligibility determination comes into effect on the first day the Secretary is satisfied that the requirements in subparagraphs 85BA(1)(a)(i) to (iv) of the A New Tax System (Family Assistance) Act 1999 (Family Assistance Act) are met that is also the first Monday of a CCS fortnight that is not more than 28 days before the day the claim was made (paragraph 67CC(4)(a)). This means there may be a discrepancy of up to two weeks between the date a person's eligibility takes effect through the operation of the CCS system as against the operation under the Act.

442. It remains the case (per new subsection 67CC(4A) which replicates existing paragraph 67CC(4)(a)) that an initial determination, made under paragraph 67CC(1)(a) of an individual's eligibility for CCS by fee reduction, takes effect on the first day for which the Secretary is satisfied that the requirements in subparagraphs 85BA(1)(a)(i) to (iv) of the Family Assistance Act are met that is also: the first Monday of a CCS fortnight; and not more than 28 days before the day the claim was made.

443. However, if the Secretary has then determined under new subsection 67CC(1A) that the individual is not eligible for CCS by fee reduction in relation to a child because the individual did not meet the CCS reconciliation conditions for the relevant income year by the second deadline, but subsequently makes a new eligibility determination, then new subsection 67CC(4B) sets out the date of effect of this new eligibility determination. It provides that the day specified in that determination must be the later of:

•

the first Monday of a CCS fortnight that is not more than 28 days before the day the claim in respect of which the new determination was made; and

•

the first Monday of the CCS fortnight beginning on or after the day the individual met the CCS reconciliation conditions for the relevant income year.

444. For example, an individual's initial eligibility determination ceases on 7 July 2025 because they have not met the second deadline (per new subsection 67CC(1A)). The date of effect for this determination is specified in new subsection 67CC(5A) – see below – which is the first Monday of the CCS fortnight beginning after the second deadline for the income year. The individual subsequently lodges their tax return and meets the CCS reconciliation conditions on 30 July 2025 and then submits a new eligibility claim on 6 August 2025. The first Monday of the CCS fortnight that is not more than 28 days before the claim was made is 21 July 2025 (that is, 28 days before the claim is 9 July 2025 and the next CCS fortnight commences on 21 July). The first Monday of the CCS fortnight beginning on or after the day the individual met the CCS reconciliation conditions is 4 August 2025. This means that the date of effect of this individual's new eligibility determination is 4 August 2025.

Item 28: After subsection 67CC(5)

445. Item 28 inserts new subsection 67CC(5A) to provide that the date of effect of a determination made under new subsection 67CC(1A) is from the first Monday of the CCS fortnight beginning after the second deadline for the income year. For example, this means that if the individual has not met their CCS reconciliation conditions by 30 June 2025 for the relevant income year being 2022 to 2023, then the date of effect of the determination that ceases their eligibility for CCS by fee reduction will be 7 July 2025 since this is the first Monday of the CCS fortnight after the second deadline for that year. If the date of the second deadline happens to fall on the first Monday of the CCS fortnight, then the date of the effect of the determination would be the Monday of the next CCS fortnight because the date must be the CCS fortnight beginning 'after' the second deadline.

Item 29: After paragraph 67CD(2)(b)

446. Item 29 inserts new paragraph 67CD(2)(ba) to align the date of effect under the Family Assistance Administration Act with the dates in the CCS system for:

•

the reduction of an individual's entitlement to zero when CCS reconciliation conditions are not met by the first deadline; and

•

the reinstatement of an individual's entitlement when they meet the CCS reconciliation conditions after the first deadline.

447. The discrepancy in these dates of effect between the Act and the CCS system may result in individuals being over or under paid CCS entitlements of up to two weeks.

448. New paragraph 67CD(2)(ba) provides, as a further condition for being entitled to be paid CCS for sessions of care in a week, that if the Secretary has made a previous determination that the individual is entitled to be paid CCS for a session of care in a week in a relevant income year and both the first deadline for the relevant income year has passed and a CCS fortnight has begun after the first deadline for the relevant income year has passed, that the individual has met the CCS reconciliation conditions for the relevant income year on or before the first Monday of the CCS fortnight in which the week occurs.

449. This is best illustrated by considering the following examples for the scenario with the relevant income year being 2023-24, which makes the first deadline for that year being 30 June 2025 and the first Monday of CCS fortnight after the first deadline being 7 July 2025.

450. If the individual has not met the CCS reconciliation conditions by 6 July 2025, then their entitlement to CCS by fee reduction will reduce to zero as from 7 July 2025 and will remain at zero until they meet the CCS reconciliation conditions. As explained earlier, if they do not meet these conditions by the second deadline (which, in this instance, would be 30 June 2026) then their eligibility for CCS will automatically cease.

451. If this same individual were then to meet the CCS reconciliation conditions on 10 July 2025, then their entitlement to CCS by fee reduction would not be reinstated until the beginning of the next CCS fortnight being Monday 21 July. This is because 10 July is part of the CCS fortnight commencing on 7 July and so falls after the first Monday of that CCS fortnight.

Items 30, 31 and 32: After paragraph 67CD(3)(c); After paragraph 67CD(4)(e); After paragraph 67CD(6)(e)

452. Each of these items make the same changes as provided for in new paragraph 67CD(2)(ba) (as described above) to the following provisions except adapted to refer to ACCS:

•

subsection 67CD(3) – which provides for entitlement to be paid ACCS (child wellbeing) or ACCS (temporary financial hardship);

•

subsection 67CD(4) – which provides for entitlement to be paid ACCS (grandparent);

•

subsection 67CD(6) – which provides for entitlement to be paid ACCS (transition to work).

Items 33 and 34: Paragraph 67CD(10)(c); Paragraph 67CD(10)(d)

453. Item 33 repeals paragraph 67CD(10)(d) to exclude it from the information requirements. Instead, similar requirements as to when individuals must meet the CCS reconciliation conditions to be entitled to be paid CCS or ACCS amounts have been inserted separately into respective subsections 67CD(2), (3), (4) and (6). Item 44A is an amendment consequential to the repeal of paragraph 67CD(10)(d).

Division 2—Application of amendments

Item 35: Application provision—general

454. Item 35 is a general application provision. It provides that the amendments made to the Family Assistance Administration Act by this Part 4 apply in relation to a claim in respect of a child for CCS by fee reduction for a week in a CCS fortnight starting on or after 2 July 2018. This is the date that Schedules 1 and 2 of the Family Assistance Legislation Amendment (Jobs for Families Child Care Package) Act 2017 commenced and introduced the CCS scheme.

455. The discrepancy outlined above between the date of effect under the Family Assistance Administration Act and the CCS system for the reconciliation decisions has meant that some individuals have been overpaid and some underpaid for up to two weeks. These retrospective amendments provide that the date of effect under the Family Assistance Administration Act is taken to have been aligned with the date of effect in the CCS system. For the cohort of individuals that were overpaid, new subitem 36(4) waives any debt potentially owing by this cohort from these payments. For the cohort of affected individuals for whom the discrepancy may have resulted in underpayments the retrospective amendments have the effect that these individuals were not underpaid and therefore remove the potential avenue for an individual to seek review to correct their entitlement based on the date of effect under the Family Assistance Administration Act as it stood before the retrospective amendments take effect.

456. Given the volume of CCS payments; the relatively short period of time between the date of effect under the Family Assistance Administration Act and the date of effect in the CCS system; and the relatively low maximum amount of an underpayment to an individual; the time and the cost of remediation on a case by case basis was not practical or proportionate to the impact on individuals. However, item 37 contains an avenue for any adversely affected individuals to seek compensation. Therefore, to the extent that the retrospective operation of the amendments may detrimentally affect an individual, the impact has been mitigated.

Item 36: Application provision—decisions made before commencement

457. Item 36 is a specific application provision. Subitem 36(1) provides that a decision made before the commencement of this Part, in accordance with the Family Assistance Administration Act as amended by this Part, is taken to have been, and to always have been, made in accordance with the Family Assistance Administration Act. As above, this has the effect that the relevant determinations took effect under the Family Assistance Administration Act on the date the determinations took effect in the CCS system.

458. Subitem 36(2) is a validating provision which makes clear, for the avoidance of doubt, that anything done that would have been invalid or unlawful (for example, underpaying an individual because the reinstatement of their entitlement to CCS was delayed by up to 2 weeks when they met the CCS reconciliation conditions after the first deadline) except for subitem 36(1) is taken to have always been valid and lawful.

459. Subitem 36(3) sets out how item 36 applies for the purposes of applying the item in relation to civil or criminal proceedings.

460. Subitem 36(4) ensures that, if an amount was paid to an individual which would be recoverable because it was not paid in accordance with the Family Assistance Administration Act as in force at the time the decision was made (and so they were not entitled to that amount), then that amount is waived. This means families will not be required to repay any overpayments that may have arisen due to the current operation of the legislation.

Item 37: Compensation for acquisition of property

461. Item 37 provides that if the operation of this Part 4 results in the acquisition of property from a person otherwise than on just terms and the acquisition would be invalid because of paragraph 51(xxxi) of the Constitution, then the Commonwealth is liable to pay reasonable compensation to the person. If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in a court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount as the court determines. This item defines "acquisition of property" and "just terms" by reference to paragraph 51(xxxi) of the Constitution.

IMPROVING INTEGRITY IN THE INTERNATIONAL EDUCATION SECTOR POLICY IMPACT ANALYSIS

See
Improving Integrity in the International Education Sector Policy Impact Analysis.