EXPLANATORY STATEMENT
Education Services for Overseas Students
(Calculation of unspent pre-paid fees – Other Cases)
Determination 2012 (No. 1)
Summary
The Education Services for Overseas Students (Calculation of unspent pre-paid fees – Other Cases) Determination 2012 (No. 1) is made by the Minister for Tertiary Education, Skills, Science and Research, pursuant to subsection 47E(4) of the Education Services for Overseas Students Act 2000 (the Act).
The tuition protection amendments to the ESOS legislative framework, which commence at the same time as item 2 of the table under subsection 2(1) of the Education Services for Overseas Students Legislation Amendment (Tuition Protection Service and Other Measures) Act 2012, are designed to protect the considerable investment international students make in an Australian education and to protect and enhance Australia’s reputation as a destination of choice for international students. This determination is one of a number the Minister may make to specify in greater detail some of the Act’s requirements.
The purpose of this determination is to specify a method for calculating the amount of ‘unspent pre-paid fees’ in cases where the student defaults and there is no written agreement in place between a provider and student or the reason for the student default is because the student was refused a visa.
Authority
Subsection 4 of section 47E of the Act permits the Minister, by legislative instrument, to specify a method for working out the amount of unspent pre-paid fees for the purposes of subsection 2.
Purpose and operation
Under section 47B of the Act, providers are required to enter into written agreements with each international student that set out the refund requirements that apply if the student defaults. However, if there is no written agreement in place or the student has been refused a visa, this determination provides the method to be used for calculating refund amounts.
The calculation method is designed so that students are not financially disadvantaged if they are unable to obtain a visa or there is no written agreement. Under this method (which is consistent with current arrangements), providers are able to retain a modest sum (from the student’s pre-paid fees) to go towards meeting any administrative costs the provider may have incurred in relation to that student.
This method of calculation will be used for the following purposes:
- For subsection (1) of section 47E of the Act, calculating a refund to be paid by a provider to a defaulting student in cases where there is no written agreement in place or the student has been refused a visa; and
- For subsection (1) of section 50B of the Act, when calculating the amount the TPS Director will pay out of the OSTF to a defaulting student in cases where the provider has failed to discharge its obligation to pay a refund under section 47E of the Act
Consultation
The Department of Industry, Innovation, Science, Research and Tertiary Education has consulted with the TPS Implementation Consultative Committee (representatives from Universities Australia, the Australian Council for Private Education and Training, the Council of Private Higher Education, the Independent Schools Council of Australia, TAFE Directors Australia, English Australia and the Council of International Students Australia).
Regulation Impact Statement
This refund calculation method for cases when there is no written agreement in place or the student is refused a visa is similar to the method being applied until 1 July 2012 so the regulatory impact will not change.
The regulatory impact of the introduction of the TPS, to which this determination relates, was considered in the ESOS (Tuition Protection Service and other related measures) Regulatory Impact Statement assessed as adequate by the OBPR on 2 February 2012.
A post-implementation review of this and other measures related to the TPS is required to be undertaken within one to two years of implementation.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Education Services for Overseas Students
(Calculation of unspent pre-paid fees – Other Cases)
Determination 2012 (No. 1)
This determination 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 Determination
The determination is made under subsection (4) of section 47E of the Education Services for Overseas Students Act 2000 (the Act) by the Minister for Tertiary Education, Skills, Science and Research.
The tuition protection amendments to the ESOS legislative framework, which commence at the same time as item 2 of the table under subsection 2(1) of the Education Services for Overseas Students Legislation Amendment (Tuition Protection Service and Other Measures) Act 2012, are designed to protect the considerable investment international students make in an Australian education and to protect and enhance Australia’s reputation as a destination of choice for international students. This determination is one of a number the Minister may make to specify in greater detail some of the Act’s requirements.
The purpose of this determination is to specify a method for calculating the amount of ‘unspent pre-paid fees’ in cases where the student defaults and there is no written agreement in place between a provider and student or the reason for the student default is because the student was refused a visa.
Human rights implications
Right to education
This determination engages the right to education, contained in Article 13 of the International Covenant on Economic, Social, and Cultural Rights. In particular, this determination has an effect on the provision of education services to international students by bodies corporate registered on the CRICOS.
To the extent that the right to education is engaged, this right is promoted by the determination.
Conclusion
This determination is compatible with human rights because it advances the protection of human rights.