EXPLANATORY STATEMENT
Issued by the authority of the Minister for Education
Education Services for Overseas Students Act 2000
Education Services for Overseas Students (Requirements for Notice to Immigration Secretary) Instrument 2022
AUTHORITY
Subsection 50D(3) of the Education Services for Overseas Students Act 2000 (the Act) provides that the Minister may, by legislative instrument, specify requirements for a notice given by the Tuition Protection Service (TPS) Director to the Immigration Secretary regarding the payment of refunds under the Act.
Under subsection 33(3) of the Acts Interpretation Act 1901, 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. The repeal of the Education Services for Overseas Students (TPS Director to notify Immigration Secretary of payment of refunds) Determination 2012 (No. 1) (the Former Instrument) by the Schedule to this instrument relies on that provision.
PURPOSE AND OPERATION
Part 5 of the Act establishes tuition protection for overseas students, or intending overseas students, at registered providers which aims to ensure students are protected and supported in the event of a provider default. A provider default occurs where the student has not withdrawn from a unit of study, and either the provider fails to start to provide a unit of study to the student on the day on which the unit was scheduled to start, or the provider ceases to provide a unit of study to the student on a day after the unit starts but before it is completed.
One of the mechanisms in the Act to protect and support students is the establishment of the Overseas Students Tuition Fund (OSTF), which can be used to refund students in the event that they are entitled to a refund, and the refund is not provided by the registered provider. If the TPS Director provides a refund to a person specified in paragraph 50B(3)(b) or (c) of the Act, the TPS Director is required under section 50D of the Act to notify the Immigration Secretary. This is to ensure that the Immigration Secretary receives information that may be relevant to the monitoring of student compliance with visa conditions.
The purpose of the Education Services for Overseas Students (Requirements for Notice to Immigration Secretary) Instrument 2022 (the Instrument) is to repeal and replace the Former Instrument, which was due to sunset (or automatically repeal) on 1 October 2022 in accordance with the Legislation Act 2003, and includes provisions which set out the information which must be included in the notice to the Immigration Secretary, and how the information in the notice is to be given to the Immigration Secretary.
REGULATORY IMPACT
The Office of Best Practice regulation has been consulted and advised that a Regulatory Impact Statement is not required for the Instrument due to the minor regulatory impact of the proposed changes (OBPR ID: 44167).
COMMENCEMENT
The Instrument takes effect from the day after the Instrument is registered on the Federal Register of Legislation.
CONSULTATION
The TPS Director is a Commonwealth statutory officer established by the Act, and has functions that include overseeing the operation of student placements, making payments to providers for accepting students affected by a provider default, overseeing refunds to students, managing the operation of the OSTF and determining the amount of the annual TPS levy. The TPS Operations Team is located within the Department of Education and supports the TPS Director. The TPS Director and the TPS Operations Team were consulted in the preparation of this Instrument and are supportive of this Instrument.
As prescribed in legislation (section 176A of the Act, section 113A of the Vet Student Loans Act 2016 (VSL Act), section 238-7 of the Higher Education Support Act 2003 (HESA) and section 203A of the Tertiary Education Quality and Standards Agency 2011 (TEQSA Act)), it is a requirement that the responsible Minister commence a review of the tuition protection arrangements. The Review must consider the operation of tuition protection arrangements and each Tuition Protection Fund and related matters. The Terms of Reference for this Review were issued on 14 September 2021. The Review was conducted by an independent consultant whose analysis was informed by comprehensive consultations with key stakeholders across the International Education, Higher Education and VET sectors. The relevant terms of reference were to assess the effectiveness and efficiency of the current legislative, operational, administrative and governance arrangements of the TPS, including:
- whether the current delivery arrangements best meet the tuition protection policy objectives as set out in the Act, VSL Act, HESA and the TEQSA Act, and
- the framework of the current legislative structure of the TPS as set out in the Act, VSL Act, HESA, the TEQSA Act, and multiple subordinate legislative instruments.
The Department of Home Affairs was consulted as part of the Review process. The Review concluded in February 2022 and found that the TPS’s performance is resilient to high volumes of activity, indicating that current operational models scale well to increased volumes. The Review made no recommendations regarding changing the content of this Instrument.
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 (Requirements for Notice to Immigration Secretary) Instrument 2022
The Education Services for Overseas Students (Requirements for Notice to Immigration Secretary) Instrument 2022 (the 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
Part 5 of the Education Services for Overseas Students Act 2000 (the Act) establishes tuition protection for overseas students, or intending overseas students, at registered providers which aims to ensure students are protected and supported in the event of a provider default. A provider default occurs where the student has not withdrawn from a unit of study, and either the provider fails to start to provide a unit of study to the student on the day on which the unit was scheduled to start, or the provider ceases to provide a unit of study to the student on a day after the unit starts but before it is completed.
One of the mechanisms in the Act to protect and support students is the establishment of the Overseas Students Tuition Fund (OSTF), which can be used to refund students in the event they are entitled to a refund and the refund is not provided by the registered provider. If the Tuition Protection Service (TPS) Director provides a refund to a person specified in paragraph 50B(3)(b) or (c) of the Act, the TPS Director is required under section 50D of the Act to notify the Immigration Secretary. This is to ensure that the Immigration Secretary receives information that may be relevant to the monitoring of student compliance with visa conditions.
The purpose of the Education Services for Overseas Students (Requirements for Notice to Immigration Secretary) Instrument 2022 (the Instrument) is to repeal the Education Services for Overseas Students (TPS Director to notify Immigration Secretary of payment of refunds) Determination 2012 (No. 1), and set out the information to be included in the notice to the Immigration Secretary, and how the information in the notice is to be given to the Immigration Secretary.
Human rights implications
The Instrument engages the right to privacy under Article 17 of the International Covenant on Civil and Political Rights (ICCPR).
Right to privacy
The Instrument engages the right to privacy under Article 17 of the ICCPR, which provides that no one shall be subjected to arbitrary or unlawful interference with their privacy, family, home or correspondence, nor to unlawful attacks on their honour and reputation, and that everyone has the right to the protection of the law against such interference or attacks. The right to privacy also includes the right to control the dissemination of information about one's private life, and requires that States Parties take effective measures to ensure that information concerning a person’s private life does not reach the hands of persons who are not authorised by law to receive, process and use it. The right to privacy also requires that legislation must specify in detail the precise circumstances in which an interference with privacy will be permitted. The right to privacy may be subject to permissible limitations where the limitation pursues a legitimate objective; is rationally connected to that objective; and is a proportionate means of achieving that objective.
The right to privacy is engaged by this Instrument because it authorises the on-sharing of personal information by requiring the TPS Director to give students’ personal information to the Immigration Secretary using the Provider Registration and International Student Management System (PRISMS) established under subsection 109(1) of the Act.
Under Australian Privacy Principle (APP) 3, in Schedule 1 to the Privacy Act 1988 (the Privacy Act), an APP entity (which relevantly includes the Immigration Department and the TPS Director) must not collect personal information ‘unless the information is reasonably necessary for, or directly related to, one or more of the entity’s functions or activities. Where the personal information collected includes sensitive information (such as race or ethnic origin and religious and philosophical beliefs), the individual’s consent must also be sought before collecting such personal information. Subsection 109(3) also provides an additional safeguard to the use of information in PRISMS, as that subsection provides that access to PRISMS may be given subject to conditions, with subsection 109(5) providing that a person commits and offence if the person intentionally breaches a condition and knows, or is reckless to whether, that conduct is a breach of the condition.
The purpose of collecting students’ personal information and sharing it with the Immigration Secretary is to ensure that the Immigration Secretary receives information that may be relevant to the monitoring of, or student compliance with, visa conditions. As a result, collecting targeted and specific personal information is reasonably necessary for, and directly related to, the activity of monitoring visa conditions. Further, in collecting the information, the Immigration Department and the TPS Director will be subject to the provisions of the Privacy Act, including but not limited to, investigations into complaints against breaches of privacy, mandating that personal information can only be used or disclosed for the purpose for which it was collected or for a secondary purpose if an exception applies, and that the Immigration Department and TPS Director must take reasonable steps to protect personal information from misuse, interference and loss, as well as unauthorised access, modification or disclosure.
To the extent the Instrument limits the right to privacy, these limitations are reasonable, necessary and proportionate to achieving a legitimate objective (allowing the Immigration Secretary to monitor visa compliance), and by ensuring that appropriate safeguards and accountability measures apply to the Immigration Department and TPS Director when collecting, storing and disclosing personal information.
Conclusion
This Instrument is compatible with human rights. To the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.
The Hon Jason Clare MP, Minister for Education
EDUCATION SERVICES FOR OVERSEAS STUDENTS (REQUIREMENTS FOR NOTICE TO IMMIGRATION SECRETARY) INSTRUMENT 2022
EXPLANATION OF PROVISIONS
Section 1: Name
- This section provides that the title of the Instrument is the Education Services for Overseas Students (Requirements for Notice to Immigration Secretary) Instrument 2022 (the Instrument).
Section 2: Commencement
2. This section provides that the Instrument will commence the day after it is registered on the Federal Register of Legislation.
Section 3: Authority
3. This section provides that the Instrument is made under subsection 50D(3) of the Education Services for Overseas Students Act 2000 (the Act).
Section 4: Definitions
4. This section provides definitions for certain expressions used in the Instrument, and notes that a number of expressions used in the Instrument are already defined in section 5 of the Act.
Section 5: Schedule
5. This section clarifies that Schedule 1 is effective on its terms (that is, to repeal the Education Services for Overseas Students (TPS Director to notify Immigration Secretary of payment of refunds) Determination 2012 (No. 1) (the Former Instrument)).
Section 6: Requirements of a notice
6. This section specifies that the requirements of a notice from the TPS Director to the Immigration Secretary, given when the TPS Director refunds a person specified in paragraph 50B(3)(b) or (c) of the Act, are that the notice include information on the confirmation of enrolment, the amount of the refund, and the date the refund was paid, and that the information contained in the notice be given using PRISMS.
SCHEDULE 1 – REPEALS
Item 1: The whole of the instrument
7. This item repeals the Former Instrument.