Immigration (Education) (Functional English) Specification 2017

Administered by Department of Home Affairs

Legislation au F2017L00720 Not in force Legislative Instrument

Legislation content

Explanatory Statement

 

Immigration (Education) (functional English) Specification 2017

 

 

Summary

Subsection 3(2) of the Immigration (Education) Act 1971 (the Act) provides that the Minister may, by legislative instrument, specify procedures or standards for the purposes of the definition of functional English in subsection 3(1) of the Act.

 

The Immigration (Education) (functional English) Specification 2017 specifies that a person is taken to have functional English if they are assessed in accordance with subsection 5(2) of the Migration Act 1958 as having functional English in respect to a visa grant, or, are assessed under the Australian Core Skills Framework (ACSF) to have a Level 3 proficiency or above across the core skills of skills of reading, writing, learning and oral communication.

 

Background

The Act provides for up to 510 hours of tuition in approved English courses to migrants who hold eligible visas and who do not have functional English. This is delivered through the Australian Government’s Adult Migrant English Program (AMEP).

 

The eligibility requirements for English courses are set out in section 4A of the Act. Paragraph 4A(b) of the Act provides that a person is eligible for English courses if he or she does not have functional English. The Act requires that a provider of an approved English course determines whether a person has functional English in accordance with any procedures or standards specified by the Minister in a legislative instrument made under subsection 3(2) of the Act.

Consultation

In 2014, ACIL Allen Consulting were engaged to undertake an evaluation of AMEP which included consultation with a range of stakeholders. Community consultations from the general public were undertaken by the Minister in July and August 2015. The feedback from these processes informed the development of reforms to AMEP delivery arrangements.

 

The Request for Tender for AMEP services was released on 7 October 2016. Industry briefings were held advising of changes to the AMEP business model, including the use of the ACSF. There was broad support for the proposed changes.

Regulatory Impact Statement

The Office of Best Practice Regulation (OBPR) has advised that a Regulatory Impact Statement is not required (OBPR ID 21982).

Authority

This Instrument is made under subsection 3(2) of the Act to specify the procedures or standards for the purposes of the definition of functional English (defined in subsection 3(1) of the Act). Subsection 3(1) provides that a person has functional English if the provider of an approved English course determines, in accordance with any procedures or standards specified by the Minister under subsection 3(2), that the person has functional English.

Explanation of Provisions

Section 1 – Name of instrument

This section provides that the name of the instrument is the Immigration (Education) (functional English) Specification 2017 (the Instrument).

Section 2 – Commencement

This section provides that the Instrument commences on 1 July 2017. 

Section 3 – Authority

This section provides that the authority for the Instrument is under subsection 3(2) of the Immigration (Education) Act 1971.

Section 4 – Definition

Section 4 specifies the meaning of ‘the Act’ to provide that a reference within the Instrument to the Act is to be taken as a reference to the Immigration (Education) Act 1971.

Section 5 – Revocation

This section provides that the previous instrument (IMMI 10/057, Procedures or Standards for functional English) specifying the standards of procedures for the purpose of the definition of functional English in subsection 3(1) of the Act, made on 8 December 2010 (F2010L03242) is revoked.

Section 6Savings provision

Paragraph 6(a) of the Instrument provides that until the commencement date of this instrument (1 July 2017), the standards and procedures specified in IMMI 10/057 (F2010L3242) will be used to determine functional English.

Paragraph 6(b) of the Instrument provides that from the commencement date of this Instrument, the procedures and standards specified in this instrument will be used to determine functional English.

Section 7Procedures or standards for determining that a person has functional English

Section 7 specifies when a person is taken to have functional English for the purposes of subsection 3(1) of the Act.

Paragraph 7(a) of the Instrument provides that if a person has been assessed or provided evidence that they have functional English or above for the purposes of their visa grant in accordance with the requirements under subsection 5(2) of the Migration Act 1958, they will be taken to have functional English.

Paragraph 7(b) of the Instrument provides that if a person has not been assessed as having functional English under paragraph 7(a) and they have been assessed under the ACSF and achieved a Level 3 proficiency or above in each of the core skills of learning, reading, writing and oral communication, they will be taken to have functional English.

Subsection 3(3) of the Act allows that an Instrument made under subsection 3(2) of the Act may apply, adopt or incorporate any matter contained in any other instrument or writing. The ACSF (as in force or existing from time to time) provides the procedures and standards for which a person will be assessed as having or not having functional English for the purposes of paragraph 7(b) of the Instrument.

The ACSF is a tool which assists both specialist and non-specialist English language, literacy and numeracy practitioners describe an individual’s performance in the five core skills of learning, reading, writing, oral communication and numeracy.

The framework has broad application and can be used to:

  • assess and benchmark an individual’s core skills performance
  • describe core skills relevant to the workplace and employment
  • map curricula
  • tailor approaches to teaching and learning
  • inform decisions regarding funding and referrals.

As at the commencement of this Instrument, the ACSF may be publicly accessed on the website: https://www.education.gov.au/australian-core-skills-framework


Statement of Compatibility with Human Rights

 

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

 

 

Immigration (Education) (functional English) Specification 2017

 

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 Immigration (Education) (functional English) Specification 2017 (the Instrument) is made by the Minister under subsection 3(2) of the Immigration (Education) Act 1971 (the Act).

The Act provides for 510 hours of tuition in approved English courses to migrants who have eligible visas and who do not have functional English. This is delivered through the Australian Government Adult Migrant English Program (AMEP).

The Instrument seeks to specify the standard of functional English which is one of the criteria of eligibility for AMEP under the Act.  AMEP seeks to improve the language proficiency and confidence of eligible new migrants and humanitarian entrants, who lack functional English, to participate socially and economically in Australian society. 

Human Rights Implications

The Instrument engages the following human rights:

The right to work – Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)

The right to education – Article 13 of the ICESCR

Right to Work

This Instrument engages the right to work which is set out in Article 6 of the ICESCR.

Under Article 6(1) State Parties are required to recognise the right to work, which includes the right of everyone to the opportunity to gain their living by work which they freely choose or accept. Article 6(2) provides that the steps to be taken by a State Party to achieve the full realisation of this right include providing technical and vocational guidance and training programs.

This right goes to an objective of the Instrument, which is to improve the employment outcomes of eligible migrants who lack functional English through the delivery of 510 hours of English tuition at no charge through the AMEP.

This Instrument is compatible with the right to work.

Right to Education

The Instrument 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.

The Instrument promotes the right to education by providing access to English language education to eligible migrants.

Conclusion

This Instrument is compatible with human rights in promoting an individuals’ right to work and right to education.

 

 

 

Karen Andrews

Assistant Minister for Vocational Education and Skills

Overview

The Immigration (Education) (functional English) Specification 2017 was introduced to specify the procedures or standards for determining functional English proficiency in the context of the Immigration (Education) Act 1971. Enacted by the Minister for Immigration and Border Protection, this legislative instrument aims to ensure that migrants who hold eligible visas and lack functional English can access up to 510 hours of tuition in approved English courses through the Adult Migrant English Program (AMEP). The primary objective of the specification is to facilitate the integration of migrants into Australian society by enhancing their language proficiency and confidence, thereby improving their ability to participate socially and economically. The 2017 specification replaces the previous standards set out in the 2010 instrument, reflecting updated requirements and aligning with the Australian Core Skills Framework (ACSF) to better assess migrants’ functional English capabilities. The explanatory statement highlights that the new specification is compatible with human rights, particularly the right to work and the right to education as outlined in the International Covenant on Economic, Social and Cultural Rights. By providing access to English language education, the Instrument supports eligible migrants in achieving better employment outcomes and fulfilling their potential in Australian society. The Minister’s decision to update the functional English specifications was informed by consultations and evaluations, including feedback from stakeholders and the general public, ensuring that the AMEP remains effective and relevant in meeting the needs of new migrants and humanitarian entrants.

Scope and Application

The Immigration (Education) (functional English) Specification 2017 specifies the procedures and standards for determining whether a person has functional English for the purposes of the Immigration (Education) Act 1971. This legislative instrument applies to migrants who hold eligible visas and who are seeking to improve their English language proficiency as part of their settlement in Australia. The Instrument aims to ensure that these migrants can access the Adult Migrant English Program (AMEP), which provides up to 510 hours of approved English courses free of charge. The Instrument specifies that a person is taken to have functional English if they are assessed as having such proficiency in accordance with the requirements of the Migration Act 1958 for visa purposes or if they have achieved a Level 3 proficiency or above in the core skills of reading, writing, learning, and oral communication under the Australian Core Skills Framework (ACSF). This legislative instrument is made under the authority of the Immigration (Education) Act 1971 and applies nationally across Australia, as it is a Commonwealth instrument. The Instrument includes a savings provision that ensures the previous standards and procedures specified in the 2010 Instrument remain in effect until the commencement date of the 2017 Instrument. Upon commencement, the 2017 Instrument replaces the previous one, ensuring a smooth transition in the application of the standards for determining functional English. The ACSF, which is incorporated into the Instrument, provides a comprehensive framework for assessing an individual’s proficiency in English language skills, thus supporting the objective of the Instrument to facilitate the integration of eligible migrants into Australian society by improving their English language capabilities. This legislative instrument does not specify any exclusions or thresholds beyond the criteria for functional English as outlined.

Key Provisions

The Immigration (Education) (functional English) Specification 2017 (the Instrument) sets out the criteria for determining when a person is considered to have functional English, as required under the Immigration (Education) Act 1971 (the Act). According to Section 7 of the Instrument, a person is deemed to have functional English if they either have been assessed as having functional English under subsection 5(2) of the Migration Act 1958 in relation to a visa grant or have achieved a Level 3 proficiency or above in the core skills of learning, reading, writing, and oral communication under the Australian Core Skills Framework (ACSF). These criteria ensure that the assessment of functional English is both comprehensive and standardised, providing clarity on the eligibility for English courses under the Act. The Instrument imposes specific obligations on the providers of approved English courses, which include determining whether a person has functional English according to the procedures or standards specified in the Instrument. This requirement is outlined in subsection 3(1) of the Act, which mandates that providers adhere to the specified standards to make an accurate assessment. Providers must ensure that assessments are conducted in accordance with either the Migration Act 1958 or the ACSF, making sure that the criteria for functional English are uniformly applied. Breaches of the provisions outlined in the Instrument can lead to various consequences. While the Instrument itself does not specify particular offences or penalties, non-compliance with the standards for determining functional English could indirectly result in the denial of access to the Adult Migrant English Program (AMEP) for eligible migrants. This denial could, in turn, impact their ability to participate fully in Australian society, both socially and economically. Furthermore, if the non-compliance is found to contravene other legislative requirements or regulations, it may result in administrative or legal actions, which could include fines or other penalties as prescribed by the relevant authorities.

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Area of Law
Immigration & Refugee Law
Instrument
Legislative Instrument
Concepts
Definitions & Interpretation
Licensing & Registration
Reporting & Disclosure Obligations
Compliance Obligations

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.