EXPLANATORY STATEMENT

Education Services for Overseas Students (ESOS Agency) Determination 2020

Authority

The Education Services for Overseas Students (ESOS Agency) Determination 2020 (Determination) is made by the Minister pursuant to subsection 6C(2) of the Education Services for Overseas Students Act 2000 (Act).

Purpose

The purpose of this Determination is to determine, under subsection 6C(2) of the Act, and for the purposes of item 5 of the table in subsection 6C(1), that if a provider or registered provider is a registered higher education provider that provides a course that does not lead to a qualification which is recognised within the Australian Qualifications Framework (AQF), the ESOS agency for the provider or registered provider is the Tertiary Education Quality and Standards Agency (TEQSA).

Background

Under the Act, organisations that provide education to overseas students must be registered by the relevant ESOS agency to provide a particular course at a particular location.

The ESOS agency has responsibility for registering, monitoring and regulating providers offering education services to overseas students. Subsection 6C(1) of the Act sets out the ESOS agency for a provider or registered provider.

Item 5 of the table in subsection 6C(1) of the Act specifies that, to the extent that a provider or registered provider is a provider or registered provider that is not covered by another item of that table, the ESOS agency is the entity determined under subsection 6C(2).

Under item 1 of the table in subsection 6C(1) of the Act, TEQSA is the ESOS agency for a provider or registered provider that is a registered higher education provider. Currently there is some doubt whether the Act explicitly provides that TEQSA is the ESOS agency for registered higher education providers with respect to courses provided by providers which do not lead to an AQF award. Examples of such courses may include, but are not limited to, study abroad/exchange courses, tertiary preparation courses, pre-registration professional preparation courses and research preparation courses.

Subsection 6C(2) provides that the Minister may, by legislative instrument, determine that an entity is the ESOS agency for a provider or registered provider covered by item 5 of the table in subsection 6C(1).

For the avoidance of doubt, this Determination establishes that if a provider or registered provider is a registered higher education provider that provides a course that does not lead to a qualification which is recognised within the AQF, the ESOS agency for the provider or registered provider is TEQSA.

The Determination does not extend the overall remit of TEQSA. It extends TEQSA’s powers under the ESOS Act only with regard to the type of non-award courses in which students may enrol as the basis for a student visa application.

Commencement and application

The Determination is stated to have a retrospective commencement date of 1 July 2016. A commencement date of 1 July 2016, being the date section 6C of the Act commenced, removes any perceived ambiguity with regard to decisions made by TEQSA with respect to registering, monitoring and regulating registered higher education providers providing courses that do not lead to an AQF award. The retrospective commencement date is intended to be beneficial, by clearly and definitively validating any decisions made by TEQSA in the past as the ESOS agency in respect of courses provided by providers which do not lead to an AQF award. As an example, the retrospective operation of the Determination would remove any doubt with regard to TEQSA’s past decisions to register providers, and the resulting tuition protections afforded to students under the Act. To ensure compliance with subsection 12(2) of the Legislation Act 2003 (which limits retrospective commencement where a person’s rights would be disadvantaged or subject to liabilities), an application provision clarifies that, to the extent that the commencement would disadvantage a person’s rights or impose liabilities, the instrument applies as if it had commenced prospectively. In the unlikely event that this application provision would apply, TEQSA would only be able to exercise relevant powers as an ESOS agency, by virtue of this instrument, in the period following registration of the Determination. 

Consultation

The Department of Education, Skills and Employment has consulted the relevant regulatory agencies: TEQSA and the Australian Skills Quality Authority (ASQA).

TEQSA is the regulator for the higher education sector under the Tertiary Education Quality and Standards Agency Act 2013 and is the ESOS agency for registered higher education providers under the Act (subsection 6C(1)).

TEQSA supports making the Determination with retrospective effect, to remove any ambiguity regarding past decisions made concerning the registration of higher education providers to provide courses that do not lead to an AQF award to overseas students, and to ensure students enrolled in any such course registered by TEQSA receive the full protection of the Act.

ASQA, as the National VET Regulator under the National Vocational Education and Training Regulator Act 2011 and the ESOS agency for registered VET providers (subsection 6C(1)), also supports the Determination with retrospective effect. ASQA endorses TEQSA as the most appropriate entity to be the ESOS agency for higher education providers or registered higher education providers providing courses that do not lead to an AQF award.

Regulatory Impact Statement

The Office of Best Practice Regulation advises that a Regulatory Impact Statement is not required, as the proposal is machinery in nature and likely to have no more than minor regulatory impacts on business, community organisations or individuals (OBPR reference number 24782).

Explanation of Clauses

Item 1 of the determination states that the Determination is the Education Services for Overseas Students (ESOS Agency) Determination 2020.

Item 2 specifies that the Determination will commence on 1 July 2016, being the date section 6C of the Act commenced.

The retrospective commencement date is intended to be beneficial by ensuring the validity of decisions made with respect to registered higher education providers providing courses that do not lead to a qualification which is recognised within the AQF since 1 July 2016.

Item 3 is an application provision designed to ensure that the Determination complies with the limitation in subsection 12(2) of the Legislation Act 2003 (which limits retrospective commencement where a person’s rights would be disadvantaged or subject to liabilities). This provision ensures that, to the extent that the commencement would disadvantage a person’s rights or impose liabilities, the instrument applies as if it had commenced prospectively. This provision is intended to guarantee that the Determination can only have retrospective effects which are beneficial.

Item 4 provides that the Determination is made under subsection 6C(2) of the Act.

Item 5 defines various terms used in the Determination. All other terms used in the Determination have the same meaning as they have in the Act.

Item 6 provides that, if the provider or registered provider is a registered higher education provider that provides a course that does not lead to a qualification which is recognised within the AQF, the ESOS agency for the provider or registered provider is TEQSA.

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 (ESOS Agency) Determination 2020

This legislative instrument 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 Legislative Instrument

The Education Services for Overseas Students (ESOS Agency) Determination 2020 (Determination) is made by the Minister pursuant to subsection 6C(2) of the Education Services for Overseas Students Act 2000 (the Act).

The purpose of this Determination is to determine that if a provider or registered provider is a registered higher education provider that provides a course that does not lead to a qualification which is recognised within the Australian Qualifications Framework (AQF), the ESOS agency for the provider or registered provider is the Tertiary Education Quality and Standards Agency (TEQSA).

The ESOS agency has responsibility for registering, monitoring and regulating providers of education services to overseas students.

The retrospective commencement date is intended to be beneficial, by clearly and definitively validating any decisions made by TEQSA in the past as the ESOS agency in respect of courses provided by providers which do not lead to an AQF award.  As an example, the retrospective operation of the Determination would remove any doubt with regard to TEQSA’s past decisions to register providers, and the resulting tuition protections afforded to students under the Act. To ensure compliance with subsection 12(2) of the Legislation Act 2003 (which limits retrospective commencement where a person’s rights would be disadvantaged or subject to liabilities), an application provision clarifies that, to the extent that the commencement would disadvantage a person’s rights or impose liabilities, the Determination applies as if it had commenced prospectively. 

This Determination sets out the ESOS agency for registered higher education providers that provide courses that do not lead to a qualification recognised within the AQF as follows:

For item 5 of the table at subsection 6C(1) of the Act, if a provider or registered provider is a registered higher education provider that provides a course that does not lead to a qualification which is recognised within the Australian Qualifications Framework, the ESOS agency for the provider or registered provider is TEQSA.

Human rights implications
 

Right to education
To the extent that the right to education is engaged, the measures contained in this Determination are compatible with the right to education.

This Determination engages the right to education, contained in Article 13 of the International Covenant on Economic, Social, and Cultural Rights, insofar as it relates to the provision of courses that do not lead to an AQF award to overseas students by higher education providers registered under the Act. The Act sets out the legal framework governing delivery of education to overseas students in Australia on a student visa. The Australian Government, through the Department of Education, Skills and Employment, administers the Act and its associated instruments.

The Act governs:

• the registration process for and obligations of providers
• the Tuition Protection Service, and
• enforcement and compliance arrangements. 

The creation of an ESOS agency for a provider or registered provider is a consequence of amendments made by the Education Services for Overseas Students Amendment (Streamlining Regulation) Act 2015, which streamlined registration and monitoring processes under the Act from 1 July 2016.

This Determination will establish TEQSA as the ESOS agency for a registered higher education provider to the extent that the registered higher education provider provides a course that does not lead to a qualification which is recognised within the AQF.

The retrospective commencement of the Determination is beneficial and promotes the right to education by validating any previous TEQSA decisions relating to these courses since
1 July 2016, which will ensure overseas students enrolled in these courses are afforded the tuition protections under the Act. To the extent that the commencement would disadvantage a person’s rights or impose liabilities, the Determination applies as if it had commenced prospectively.

The Determination ensures that courses provided by registered higher education providers that do not lead to an AQF award will be capable of being registered under the Act. This will add to the range of courses available to overseas students, while maintaining consumer protections under the Tuition Protection Service. This will promote the right to education.

To the extent that the right to education is engaged, the measures contained in this Determination are compatible with the right to education.

Conclusion

This legislative instrument is compatible with human rights because it advances the protection of human rights.