Immigration (Education) Regulations (Amendment) 1993 No. 54
EXPLANATORY STATEMENT
STATUTORY RULES 1993 No. 54
Issued by the Authority of the Minister for Immigration, and Ethnic Affairs
Immigration (Education) Act 1971
Immigration (Education) Regulations (Amendment)
Section 13 of the Immigration (Education) Act 1971 (the Act) provides for the
Governor-General to make regulations prescribing matters required or permitted by the Act to be prescribed.
Section 4A of the Act provides that the regulations may provide for the charging and recovery of fees in respect of English language courses provided under the Act. Subsection 4A(2) provides that the regulations must, inter alia, exempt the holders of a health care card from any fees imposed. Subsection 4A(4) provides that cards may be prescribed for the purposes of the definition of a "health care card".
In addition, paragraph 4D(3)(b) of the Act provides that other matters in addition to those mentioned in the Act may be prescribed as matters which the Secretary may have regard to in determining whether it is unreasonable for an obligation of the Commonwealth to provide English language tuition to a particular person to cease.
The purpose of the Regulations is to provide in:
• Regulation 1, for regulation 3 to have commenced retrospectively on 1 January 1993;
• Regulation 2, for the Immigration (Education) Regulations to be amended as set out in these Regulations;
• Regulation 3, for regulation 5 of the Immigration (Education) Regulations to be omitted and substituted without amendment. Regulation 5 prescribes cards which are "health care cards" for the purposes of section 4A of the Act. Statutory Rules 1993 No 31 amended subregulation 5(1) to add a number of cards to the prescribed cards, but that amendment did not commence until 1 March 1993. The intention was that holders of all the cards prescribed should have been exempt from payment of fees from the date of commencement of the regulations imposing the fees, that is, from 1 January 1993. Regulation 3 of these Regulations achieves that objective by omitting subregulation 5(1) and reinserting it in its entirety (as previously amended) to operate retrospectively to 1 January 1993. Retrospectivity will be entirely beneficial to holders of the prescribed cards, and will not disadvantage anyone. It will therefore comply with the requirements of the Acts Interpretation Act 1901; and
• Regulation 4, for an amendment to regulation 6 of the Immigration (Education) Regulations to prescribe a further matter which the Secretary may have regard to in deciding whether it is reasonable for the Commonwealth's obligation to provide English language tuition to a particular person to cease. The further matter relates to "any period or periods of absence from Australia", and would allow deferral of the cessation of the obligation in circumstances where absence from Australia prevented the person from undertaking English language tuition within the usual period of the obligation.
These Regulations commence on gazettal, except for regulation 3 which is retrospective to 1 January 1993 (as explained in the notes on regulation 3, above).
Overview
The Immigration (Education) Regulations (Amendment) 1993 No. 54, issued by the authority of the Minister for Immigration and Ethnic Affairs, amends the existing Immigration (Education) Regulations to address specific issues identified under the Immigration (Education) Act 1971. This legislation aims to refine the regulatory framework concerning the provision and payment of fees for English language courses for immigrants, ensuring that certain groups are exempt from fees and that the cessation of Commonwealth obligations to provide such tuition can be reasonably deferred in certain circumstances. The policy objective is to provide clarity and fairness in the application of these regulations, ensuring that vulnerable groups such as holders of health care cards are not unfairly burdened with fees and that other extenuating circumstances are appropriately considered.
Scope and Application
The Immigration (Education) Regulations (Amendment) 1993 apply to individuals and entities involved in the provision of English language courses under the Immigration (Education) Act 1971, particularly targeting holders of health care cards who are exempt from associated fees. The amendments extend to all holders of prescribed health care cards, ensuring that their fee exemption is effective from 1 January 1993. Additionally, the regulations impact the Secretary's discretion in deciding whether to cease the Commonwealth's obligation to provide English language tuition, considering factors such as absences from Australia that might delay a student's participation in the courses. The amendments cover the entire Commonwealth of Australia, with the changes taking effect from the date of gazette unless otherwise specified. Notably, the application of the regulations is subject to the statutory authority granted under the Immigration (Education) Act 1971 and may be further defined or extended through subordinate instruments.
Key Provisions
The main operative sections of the Immigration (Education) Regulations (Amendment) 1993 No. 54 provide for the retrospective commencement of certain provisions and amendments to existing regulations. Regulation 1 specifies that regulation 3 is to have effect retrospectively from 1 January 1993, ensuring that the changes apply from the intended date. Regulation 2 details the amendments to the existing Immigration (Education) Regulations, and regulation 3 omits and substitutes regulation 5, which prescribes "health care cards" for the purposes of section 4A of the Immigration (Education) Act 1971. This ensures that holders of such cards are exempt from fees imposed for English language courses from the commencement date of the regulations, as intended by the legislation. Regulation 4 amends regulation 6 to include "any period or periods of absence from Australia" as a factor the Secretary may consider when deciding whether it is reasonable for the Commonwealth's obligation to provide English language tuition to a particular person to cease.
The obligations and requirements imposed by these regulations on parties and entities governed by the Act are primarily focused on ensuring that holders of health care cards are exempt from fees for English language courses, as intended by the original legislation. The regulations also introduce a new factor, "any period or periods of absence from Australia," which the Secretary may consider when determining whether it is reasonable for the Commonwealth's obligation to provide English language tuition to a particular person to cease. This allows for a more flexible approach in cases where absence from Australia has prevented a person from undertaking English language tuition within the usual period of the obligation.
In terms of offences, penalties, or civil and criminal consequences for breach, the explanatory statement does not explicitly detail any penalties. However, under the general principles of administrative law, failure to comply with regulations made under the authority of an Act may result in civil or administrative penalties, depending on the specific provisions of the Act and any applicable administrative law principles. The maximum penalties, if applicable, would be determined by the relevant legislation and would typically be outlined in the primary Act or in specific provisions related to enforcement and compliance within the Act itself. It is important to note that the retrospective application of regulation 3, while beneficial to the intended beneficiaries, must comply with the requirements of the Acts Interpretation Act 1901 to ensure it does not disadvantage anyone.