Education Services for Overseas Students Legislation Amendment Act 2011

(11 of 2011)

An Act relating to education for overseas students, and for related purposes

Assented to 8 April 2011

The Parliament of Australia enacts:

1   Short title

This Act may be cited as theEducation Services for Overseas Students Legislation Amendment Act 2011.

2   Commencement

 

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

      

(2) Any information in Column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3   Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1   Amendment of the Education Services for Overseas Students Act 2000

Part 1   Amendments

1   Section 5 (definition of condition )

After "14A", insert "or 14B".

2   Section 5

Insert:

risk assessment of a provider means an assessment of the risk of the provider being unable to satisfy the obligations of a provider under this Act.

3   After subsection 9(1)

Insert:

(1A) A designated authority for a State must use a risk-management approach when considering whether to recommend that an approved provider should be registered.

4   Subparagraph 9(2)(c)(iii)

Repeal the subparagraph, substitute:

(iii) states that the provider has clearly demonstrated the capacity to provide education of a satisfactory standard (including by having an appropriate business model and access to adequate financial resources, for example); and

(iv) states the results of the designated authority's risk assessment of the provider; and

(v) states the conditions (if any) that should apply to the provider's registration for the course in the State, in view of the results of that risk assessment; and

(vi) states the period (of not more than 5 years) for which the provider should be registered for the course in the State; and

5   At the end of section 9

Add:

(10) The Secretary may register an approved provider for the period (of not more than 5 years) that the Secretary decides.

(11) However, if an approved provider's registration for a course is due to expire before the course has finished, the provider's registration does not expire until the provider has provided the remainder of the course to the students who were enrolled in that course before the registration was due to expire.

6   Subsection 9A(1)

Omit "that, as at the commencement of this section,", substitute "who".

7   Subsection 14A(2)

Before "Minister", insert "Secretary or".

8   After section 14A

Insert:

14B Secretary's conditions on provider registration

(1) The Secretary, on the Secretary's own initiative, may impose a condition on a provider's registration that the Secretary considers necessary in view of a risk assessment made by:

(a) the Secretary; or

(b) the designated authority.

(2) The Secretary may impose the condition:

(a) when the provider is registered; or

(b) at any time before the provider stops being registered.

(3) The Secretary must inform the provider, by written notice, of the Secretary's decision to impose the condition.

9   Subsection 19(3) (note 1)

Omit "A breach of this section is also an offence: see section 104.".

10   At the end of section 19

Add:

(5) A registered provider, or the principal executive officer of a registered provider that is an unincorporated body, who fails to comply with this section commits an offence.

Penalty: 60 penalty units.

(6) An offence under subsection (5) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

11   Subsection 20(1) (note 1)

Omit "A breach of this section is also an offence: see section 104.".

12   At the end of section 20

Add:

(6) A registered provider, or the principal executive officer of a registered provider that is an unincorporated body, who fails to comply with this section commits an offence.

Penalty: 60 penalty units.

(7) An offence under subsection (6) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

13   Subsection 21(3) (note)

Omit "A breach of this section is also an offence: see section 105.".

14   At the end of section 21

Add:

(5) A registered provider, or the principal executive officer of a registered provider that is an unincorporated body, who fails to comply with this section commits an offence.

Penalty: 60 penalty units.

(6) An offence under subsection (5) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

15   After subsection 21A(1)

Insert:

(1A) A registered provider who fails to comply with subsection (1) commits an offence.

Penalty: 60 penalty units.

(1B) An offence under subsection (1A) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

16   At the end of section 28

Add:

(5) A registered provider who fails to comply with this section commits an offence.

Penalty: 60 penalty units.

(6) An offence under subsection (5) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

17   At the end of section 29

Add:

(5) A registered provider who fails to comply with this section commits an offence (the primary offence ), and commits another offence (a subsequent offence ) on each subsequent day during which that failure continues, including a day of conviction for the offence or any later day.

Penalty:

(a) for the primary offence - 60 penalty units; or

(b) for each subsequent offence - 6 penalty units.

(6) An offence under subsection (5) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

18   After subsection 93(1)

Insert:

(1A) Before making a decision to impose a condition under subsection 14B(1), the Secretary must give the registered provider a written notice that:

(a) states that the Secretary intends to make that decision and why; and

(b) gives the registered provider at least 72 hours to give the Secretary written submissions about the matter.

19   Subsection 93(2)

After "Minister" (wherever occurring), insert "or Secretary".

20   At the end of subsection 96(1)

Add:

; or (d) a provider applies to the Administrative Appeals Tribunal for review of a decision to suspend, cancel or impose a condition on the provider's registration.

21   Sections 104 and 105

Repeal the sections.

22   Before subsection 106(1)

Insert:

(1A) This section applies to an offence against:

(a) subsection 19(5); or

(b) subsection 20(6); or

(c) subsection 21(5); or

(d) subsection 21A(1A); or

(e) subsection 28(5); or

(f) subsection 29(5).

23   Subsection 106(1)

Omit "for an offence against subsection 104(1) or section 105".

24   Section 119

Repeal the section.

25   Before section 170

Insert:

170A Publishing results of enforcement and monitoring

(1) This section applies if the Minister, Immigration Minister or Secretary takes action (including by exercising a power) in relation to a provider:

(a) under Part 6, which deals with enforcing this Act; or

(b) under Part 7, which deals with the monitoring of providers.

(2) The Secretary may publish information about:

(a) the action taken; and

(b) the results of taking that action, including for example:

(i) recommendations for improvements that are given to a provider; and

(ii) the action taken by the provider to implement those recommendations.

(3) However, if the Secretary does publish that information, the Secretary must ensure that:

(a) if the provider applies for review of the decision to take the action - that fact, and the results of the review, are also published; and

(b) the information is accurate and kept up-to-date.

(4) The Secretary may decide the way in which the publication is to be made (on the Department's website, for example).

26   Paragraph 176(1)(aa)

After "14A", insert "or 14B".

Part 2   Transitional provision

27   Transitional provision - existing unlimited registrations

(1) This item applies to a person who, immediately before this Schedule commences, is a registered provider.

(2) The provider's registration expires 5 years after this Schedule commences, unless the provider is sooner re-registered.

Schedule 2   The Overseas Students Ombudsman

Part 1   Amendment of the Ombudsman Act 1976

1   Title

Omit " and a Postal Industry Ombudsman ", substitute " , a Postal Industry Ombudsman and an Overseas Students Ombudsman ".

2   After Part IIB

Insert:

Part IIC - Establishment, functions, powers and duties of the Overseas Students Ombudsman

Division 1 - Preliminary

19ZF Definitions

In this Part:

officer , of a private registered provider, means a person who:

(a) is employed in the service of a private registered provider; or

(b) is a member of the staff of a private registered provider, whether or not the person is employed by a private registered provider; or

(c) is authorised by a private registered provider to exercise any powers, or perform any functions, of the private registered provider (including a contractor, for example).

Overseas Students Act means the Education Services for Overseas Students Act 2000.

principal executive officer has the same meaning as in the Overseas Students Act.

private registered provider means a registered provider, within the meaning of the Overseas Students Act, that is not owned or administered by:

(a) the Commonwealth; or

(b) a State or Territory.

19ZG Continued application of Part to former registered providers

(1) This section applies if:

(a) a private registered provider took action at a particular time; and

(b) the Overseas Students Ombudsman receives a complaint in relation to that action within 12 months after that time; and

(c) after that time, the private registered provider ceases to be a private registered provider for the purposes of this Part.

(2) This Part applies, in relation to that complaint, as if the private registered provider continued to be a private registered provider.

19ZH Part not to affect operation of other provisions of this Act

This Part does not, by implication, affect the operation of other provisions in this Act.

Division 2 - Establishment and functions of the Overseas Students Ombudsman

19ZI Establishment of office of Overseas Students Ombudsman

(1) For the purposes of this Act, there is to be an Overseas Students Ombudsman.

(2) The office of Overseas Students Ombudsman is to be held by the person who holds the office of Commonwealth Ombudsman.

(3) The reference in subsection (2) to the person who holds the office of Commonwealth Ombudsman includes a reference to a person for the time being acting in that office because of an appointment under section 29.

19ZJ Functions of Overseas Students Ombudsman

(1) The functions of the Overseas Students Ombudsman are:

(a) to investigate complaints made to him or her under this Act; and

(b) to give private registered providers advice and training about the best practice for the handling of complaints made by overseas students; and

(c) to perform such other functions as are conferred on him or her by:

(i) this Act or the regulations; or

(ii) another Act or regulations made under another Act.

(2) Subject to this Act, the Overseas Students Ombudsman:

(a) is to investigate action that he or she is authorised by this Act to investigate and in respect of which a complaint has been made to him or her; and

(b) may, on his or her own initiative, investigate action that he or she is authorised by this Act to investigate.

(3) The Overseas Students Ombudsman is authorised by this Act to investigate action taken by a private registered provider in connection with an overseas student, an intending overseas student, or an accepted student, within the meaning of the Overseas Students Act.

19ZK Transfer of complaints

(1) This section applies if:

(a) a complaint has been made to the Overseas Students Ombudsman with respect to action taken by a private registered provider; and

(b) the Overseas Students Ombudsman, either before or after starting to investigate that action, forms the opinion that:

(i) a statutory complaint handler has the function of investigating, reviewing or enquiring into action of that kind; or

(ii) a statutory office-holder has the function of investigating, reviewing or enquiring into action of that kind.

(2) In the case of a statutory complaint handler, the Overseas Students Ombudsman:

(a) must not investigate or further investigate the action; and

(b) must transfer the complaint to the statutory complaint handler.

(3) In the case of a statutory office-holder, if the Overseas Students Ombudsman considers the action could be more conveniently or effectively dealt with by the statutory office-holder, the Overseas Students Ombudsman:

(a) may decide not to investigate or further investigate the action; and

(b) if that decision is made, must transfer the complaint to the statutory office-holder.

(4) If the Overseas Students Ombudsman transfers a complaint under this section, the Overseas Students Ombudsman must, as soon as is reasonably practicable:

(a) give notice of the transfer to the complainant; and

(b) give any information or documents that relate to the complaint and are in the possession or under the control of the Overseas Students Ombudsman to the statutory complaint handler or statutory office-holder.

(5) In this section:

statutory complaint handler means a person, prescribed under the regulations, who has a function of investigating action taken by a private registered provider in connection with an overseas student, an intending overseas student, or an accepted student, within the meaning of the Overseas Students Act.

statutory office-holder means a person who holds any office or appointment under a law of the Commonwealth, or under a law of a State or Territory.

19ZL Discretion not to investigate certain complaints

(1) This section applies if:

(a) a complaint has been made to the Overseas Students Ombudsman with respect to action taken by a private registered provider; and

(b) the Overseas Students Ombudsman is of the opinion that:

(i) the complaint is frivolous or vexatious or was not made in good faith; or

(ii) the complainant does not have a sufficient interest in the subject matter of the complaint; or

(iii) an investigation, or further investigation, of the action is not warranted having regard to all the circumstances; or

(iv) the complainant has not yet raised the complaint with the registered provider; or

(v) the action came to the complainant's knowledge more than 12 months before the complaint was made; or

(vi) the complainant has, or had, a right to cause the action to which the complaint relates to be reviewed by a court or by a tribunal constituted by or under an enactment but has not exercised that right.

(2) The Overseas Students Ombudsman may, in his or her discretion:

(a) decide not to investigate the action; or

(b) if he or she has started to investigate the action - decide not to investigate the action further.

Division 3 - Establishment and functions of the Overseas Students Ombudsman

19ZM Application of other provisions of this Act to the Overseas Students Ombudsman

(1) Subject to this section, the provisions covered by subsection (3) apply in relation to the Overseas Students Ombudsman.

(2) Unless the contrary intention appears, the provisions covered by subsection (3) apply as if:

(a) a reference in any of those provisions to the Ombudsman were a reference to the Overseas Students Ombudsman; and

(b) a reference in any of those provisions to any of the following were a reference to a private registered provider:

(i) a Department;

(ii) a prescribed authority;

(iii) a Department or a prescribed authority; and

(c) a reference in any of those provisions to an officer were a reference to an officer within the meaning of this Part; and

(d) a reference in any of those provisions to a principal officer were a reference to a principal executive officer within the meaning of this Part.

(3) The following provisions are covered by this subsection:

(a) subsections 3(1) and (8);

(b) sections 3C and 3D;

(c) sections 6A to 7A;

(d) section 8, other than:

(i) paragraph (7A)(b); and

(ii) subsections (8) to (12);

(e) section 8A, other than subsections (1B) to (1D);

(f) section 9, other than:

(i) paragraphs (1AA)(ab) and (ac); and

(ii) paragraph (4)(ab);

(g) section 11A, other than subsections (1) and (5);

(h) sections 12 to 14;

(i) section 18;

(j) section 19, other than subsection (8);

(k) subsection 31(1);

(l) section 33;

(m) section 34, other than subsections 34(1) to (2A);

(n) section 35, other than paragraph (1)(e) and subparagraph (3)(b)(ia);

(o) section 35AA;

(p) section 35A, other than subsection (3A);

(q) sections 35B to 38.

(4) Each provision of this Act specified in column 1 of the table applies in relation to the Overseas Students Ombudsman in accordance with the table:

19ZN Powers of the Overseas Students Ombudsman under section 9

The Overseas Students Ombudsman may exercise his or her powers under section 9 for any of the following purposes:

(a) to determine whether he or she may investigate action under this Part;

(b) to decide whether or not to investigate action, or to investigate action further, under this Part;

(c) to start or further the conduct of an investigation under this Part;

(d) to prepare a report in relation to an investigation under this Part;

(e) if he or she has exercised a power for any of the purposes mentioned in paragraphs (a) to (d) - to ascertain what action has been taken by a private registered provider following the exercise of that power.

19ZO Duty to accord procedural fairness

The Overseas Students Ombudsman must comply with the rules of procedural fairness when exercising a power under this Act.

Example 1: If the Overseas Students Ombudsman sets out a critical opinion of a person in a report under section 19ZQ, he or she must give that person an opportunity to appear and make submissions to him or her (see subsection 8(5)).

Example 2: The Overseas Students Ombudsman must accord procedural fairness to a person if he or she sets out a critical opinion of the person:

(a) in disclosing information, or making a statement, under subsection 35A(1); or

(b) in referring to an investigation in areport under section 19ZS.

19ZP Disclosure of identifying information

The Overseas Students Ombudsman must not, in referring to an investigation in a report under section 19ZQ or 19ZS, disclose the name of a complainant or any other matter that would enable a complainant to be identified, unless it is fair and reasonable in all the circumstances to do so.

19ZQ Overseas Students Ombudsman may report to private registered provider

(1) This section applies if:

(a) an investigation under this Act into action taken by a private registered provider has been completed; and

(b) the Overseas Students Ombudsman is of the opinion that the action taken:

(i) appears to have been contrary to law; or

(ii) was unreasonable, unjust, oppressive or improperly discriminatory; or

(iii) was otherwise, in all the circumstances, wrong; and

(c) the Overseas Students Ombudsman is of the opinion that:

(i) some particular action could be, and should be, taken to rectify, mitigate or alter the effects of the action taken; or

(ii) a policy or practice on which the action taken was based should be altered; or

(iii) reasons should have been, but were not, given for the action taken; or

(iv) any other thing should be done in relation to the action taken.

(2) The Overseas Students Ombudsman must report accordingly to the private registered provider.

(3) The Overseas Students Ombudsman:

(a) must include in the report his or her reasons for the opinions specified in the report; and

(b) may also include in the report any recommendations he or she thinks fit to make.

(4) The Overseas Students Ombudsman may ask the private registered provider to give him or her, within a specified time, particulars of any action that the private registered provider proposes to take with respect to the matters and recommendations included in the report.

(5) The private registered provider may give the Overseas Students Ombudsman comments about the report.

(6) The Overseas Students Ombudsman must give a copy of:

(a) the report; and

(b) any comments given under subsection (5);

to the Minister administering the Overseas Students Act.

19ZR Minister to table certain reports in Parliament

(1) This section applies if:

(a) the Overseas Students Ombudsman has given a report under section 19ZQ to a private registered provider; and

(b) action that is, in the opinion of the Overseas Students Ombudsman, adequate and appropriate in the circumstances is not taken with respect to the matters and recommendations included in the report within a reasonable time after the report was given to the private registered provider.

(2) The Overseas Students Ombudsman may request the Minister administering the Overseas Students Act to cause copies of the report to be laid before each House of the Parliament.

(3) If the Overseas Students Ombudsman makes a request under subsection (2), the Minister administering the Overseas Students Act must cause copies of:

(a) the report; and

(b) any comments given under subsection 19ZQ(5) before the request was made;

to be laid before each House of the Parliament within 15 sitting days of that House after that Minister receives the request.

19ZS Annual reports

(1) The Overseas Students Ombudsman has the same powers and duties under this section as the Ombudsman has under subsections 19(1) to (7B) with respect to the submission of reports relating to:

(a) his or her operations; and

(b) the exercise of his or her powers and the performance of his or her functions.

(2) For the purposes of subsection (1), the powers and duties of the Ombudsman do not include his or her powers and duties with respect to reports relating to the Australian Capital Territory.

(3) A report relating to the operations of the Overseas Students Ombudsman during a year may be included in a report under section 19 relating to the operations of the Ombudsman during that year.

(4) A report relating to the operations of the Overseas Students Ombudsman during a year must:

(a) identify the number of complaints received by the Overseas Students Ombudsman under this Part during that year; and

(b) if the Overseas Students Ombudsman has investigated action under paragraph 19ZJ(2)(a) - identify:

(i) the number of the investigations started during that year; and

(ii) the number of the investigations completed during that year; and

(c) if the Overseas Students Ombudsman has investigated action under paragraph 19ZJ(2)(b) - identify:

(i) the number of the investigations started during that year; and

(ii) the number of the investigations completed during that year; and

(d) identify:

(i) the number of times when the Overseas Students Ombudsman has made a requirement of a person under section 9 during that year; and

(ii) the circumstances in which each of those requirements was made.

(5) A report relating to the operations of the Overseas Students Ombudsman during a year may include:

(a) details of the circumstances and number of occasions where the holder of the office of Overseas Students Ombudsman has decided, under section 19ZK, to transfer a complaint to a statutory complaint handler or statutory office-holder; and

(b) details of recommendations made during that year in reports under section 19ZQ; and

(c) statistical information about actions taken during that year as a result of such recommendations; and

(d) details of action that the Overseas Students Ombudsman took during the year to promote best practice in dealing with complaints; and

(e) details of the Overseas Students Ombudsman's observations regarding:

(i) any trends in complaints; or

(ii) any broader issues that arise from investigations.

19ZT Overseas Students Ombudsman may notify of misconduct

(1) This section applies if the Overseas Students Ombudsman forms the opinion, either before or after completing an investigation under this Act, that there is evidence that a person who is an officer of a private registered provider has engaged in misconduct.

(2) If the Overseas Students Ombudsman is of the opinion that the evidence is, in all the circumstances, of sufficient force to justify his or her doing so, the Overseas Students Ombudsman may bring the evidence to the notice of the principal executive officer of the private registered provider.

19ZU Limitation on liability where information or documents provided in good faith or when required to do so

(1) A person is neither liable to a proceeding, nor subject to a liability, under an enactment merely because the person, in good faith and in relation to the Overseas Students Ombudsman's functions or powers:

(a) gives information to the Overseas Students Ombudsman (other than in accordance with a requirement under section 9); or

(b) gives a document or other record to the Overseas Students Ombudsman (other than in accordance with a requirement under section 9).

Note: For information, documents or other records given in accordance with a requirement under section 9, see subsections 9(4) and (5).

(2) To avoid doubt, subsection (1) does not prevent the person from being liable to a proceeding, or being subject to a liability, for conduct of the person that is revealed by the information, document or record given to the Overseas Students Ombudsman.

(3) This section does not limit section 37.

3   After subsection 34(2A)

Insert:

(2B) The Overseas Students Ombudsman may, either generally or as otherwise provided by the instrument of delegation, by instrument in writing, delegate to a person all or any of his or her powers under this Act, other than his or her powers under sections 19ZQ and 19ZR and his or her powers referred to in section 19ZS.

4   Subsections 34(3) and (4)

Repeal the subsections.

Part 2   Amendment of the Privacy Act 1988

5   At the end of paragraph 50(2)(a)

Add:

(iv) to the Overseas Students Ombudsman under the Ombudsman Act 1976; or

6   Subsection 50(2)

After ", the Postal Industry Ombudsman" (wherever occurring), insert ", the Overseas Students Ombudsman".

7   At the end of paragraph 50(3)(a)

Add:

(iv) to the Overseas Students Ombudsman under the Ombudsman Act 1976; or

Part 3   Transitional provisions

8   Application of Part 1

The amendments made by Part 1 of this Schedule apply in relation to action taken by a private registered provider before or after this Schedule commences.

9   Transitional provision - reports under section 19ZS

The first report under section 19ZS of the Ombudsman Act 1976 relating to the operations of the Overseas Students Ombudsman during a year must relate to the operations of the Overseas Students Ombudsman during the period that:

(a) started on the commencement of this Part; and

(b) ended on the 30 June first occurring after that commencement.