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EDUCATION SERVICES FOR OVERSEAS STUDENTS LEGISLATION AMENDMENT BILL 2010 [2011]

2010
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Education Services for Overseas
Students Legislation Amendment Bill
2010
No. , 2010
(Tertiary Education, Skills, Jobs and Workplace Relations)
A Bill for an Act relating to education for overseas
students, and for related purposes
i Education Services for Overseas Students Legislation Amendment Bill 2010 No. ,
2010
Contents
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
1
3 Schedule(s)
........................................................................................
2
Schedule 1--Amendment of the Education Services for
Overseas Students Act 2000
3
Part 1--Amendments
3
Part 2--Transitional provision
9
Schedule 2--The Overseas Students Ombudsman
10
Part 1--Amendment of the Ombudsman Act 1976
10
Part 2--Amendment of the Privacy Act 1988
22
Part 3--Transitional provisions
23
Education Services for Overseas Students Legislation Amendment Bill 2010 No. , 2010
1
A Bill for an Act relating to education for overseas
1
students, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act may be cited as the Education Services for Overseas
5
Students Legislation Amendment Act 2010.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2 Education Services for Overseas Students Legislation Amendment Bill 2010 No. ,
2010
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedules 1
and 2
The later of:
(a) the day after this Act receives the Royal
Assent; and
(b) 1 January 2011.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in Column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedule(s)
7
Each Act that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
12
Amendment of the Education Services for Overseas Students Act 2000 Schedule 1
Amendments Part 1
Education Services for Overseas Students Legislation Amendment Bill 2010 No. , 2010
3
Schedule 1--Amendment of the Education
1
Services for Overseas Students Act
2
2000
3
Part 1--Amendments
4
1 Section 5 (definition of condition)
5
After "14A", insert "or 14B".
6
2 Section 5
7
Insert:
8
risk assessment of a provider means an assessment of the risk of
9
the provider being unable to satisfy the obligations of a provider
10
under this Act.
11
3 After subsection 9(1)
12
Insert:
13
(1A) A designated authority for a State must use a risk-management
14
approach when considering whether to recommend that an
15
approved provider should be registered.
16
4 Subparagraph 9(2)(c)(iii)
17
Repeal the subparagraph, substitute:
18
(iii) states that the provider has clearly demonstrated the
19
capacity to provide education of a satisfactory standard
20
(including by having an appropriate business model and
21
access to adequate financial resources, for example);
22
and
23
(iv) states the results of the designated authority's risk
24
assessment of the provider; and
25
(v) states the conditions (if any) that should apply to the
26
provider's registration for the course in the State, in
27
view of the results of that risk assessment; and
28
(vi) states the period (of not more than 5 years) for which
29
the provider should be registered for the course in the
30
State; and
31
Schedule 1 Amendment of the Education Services for Overseas Students Act 2000
Part 1 Amendments
4 Education Services for Overseas Students Legislation Amendment Bill 2010 No. ,
2010
5 At the end of section 9
1
Add:
2
(10) The Secretary may register an approved provider for the period (of
3
not more than 5 years) that the Secretary decides.
4
(11) However, if an approved provider's registration for a course is due
5
to expire before the course has finished, the provider's registration
6
does not expire until the provider has provided the remainder of the
7
course to the students who were enrolled in that course before the
8
registration was due to expire.
9
6 Subsection 9A(1)
10
Omit "that, as at the commencement of this section,", substitute "who".
11
7 Subsection 14A(2)
12
Before "Minister", insert "Secretary or".
13
8 After section 14A
14
Insert:
15
14B Secretary's conditions on provider registration
16
(1) The Secretary, on the Secretary's own initiative, may impose a
17
condition on a provider's registration that the Secretary considers
18
necessary in view of a risk assessment made by:
19
(a) the Secretary; or
20
(b) the designated authority.
21
(2) The Secretary may impose the condition:
22
(a) when the provider is registered; or
23
(b) at any time before the provider stops being registered.
24
(3) The Secretary must inform the provider, by written notice, of the
25
Secretary's decision to impose the condition.
26
9 Subsection 19(3) (note 1)
27
Omit "A breach of this section is also an offence: see section 104.".
28
10 At the end of section 19
29
Amendment of the Education Services for Overseas Students Act 2000 Schedule 1
Amendments Part 1
Education Services for Overseas Students Legislation Amendment Bill 2010 No. , 2010
5
Add:
1
(5) A registered provider, or the principal executive officer of a
2
registered provider that is an unincorporated body, who fails to
3
comply with this section commits an offence.
4
Penalty: 60 penalty units.
5
(6) An offence under subsection (5) is an offence of strict liability.
6
Note:
For strict liability, see section 6.1 of the Criminal Code.
7
11 Subsection 20(1) (note 1)
8
Omit "A breach of this section is also an offence: see section 104.".
9
12 At the end of section 20
10
Add:
11
(6) A registered provider, or the principal executive officer of a
12
registered provider that is an unincorporated body, who fails to
13
comply with this section commits an offence.
14
Penalty: 60 penalty units.
15
(7) An offence under subsection (6) is an offence of strict liability.
16
Note:
For strict liability, see section 6.1 of the Criminal Code.
17
13 Subsection 21(3) (note)
18
Omit "A breach of this section is also an offence: see section 105.".
19
14 At the end of section 21
20
Add:
21
(5) A registered provider, or the principal executive officer of a
22
registered provider that is an unincorporated body, who fails to
23
comply with this section commits an offence.
24
Penalty: 60 penalty units.
25
(6) An offence under subsection (5) is an offence of strict liability.
26
Note:
For strict liability, see section 6.1 of the Criminal Code.
27
15 After subsection 21A(1)
28
Schedule 1 Amendment of the Education Services for Overseas Students Act 2000
Part 1 Amendments
6 Education Services for Overseas Students Legislation Amendment Bill 2010 No. ,
2010
Insert:
1
(1A) A registered provider who fails to comply with subsection (1)
2
commits an offence.
3
Penalty: 60 penalty units.
4
(1B) An offence under subsection (1A) is an offence of strict liability.
5
Note:
For strict liability, see section 6.1 of the Criminal Code.
6
16 At the end of section 28
7
Add:
8
(5) A registered provider who fails to comply with this section
9
commits an offence.
10
Penalty: 60 penalty units.
11
(6) An offence under subsection (5) is an offence of strict liability.
12
Note:
For strict liability, see section 6.1 of the Criminal Code.
13
17 At the end of section 29
14
Add:
15
(5) A registered provider who fails to comply with this section
16
commits an offence (the primary offence), and commits another
17
offence (a subsequent offence) on each subsequent day during
18
which that failure continues, including a day of conviction for the
19
offence or any later day.
20
Penalty:
21
(a) for the primary offence--60 penalty units; or
22
(b) for each subsequent offence--6 penalty units.
23
(6) An offence under subsection (5) is an offence of strict liability.
24
Note:
For strict liability, see section 6.1 of the Criminal Code.
25
18 After subsection 93(1)
26
Insert:
27
Amendment of the Education Services for Overseas Students Act 2000 Schedule 1
Amendments Part 1
Education Services for Overseas Students Legislation Amendment Bill 2010 No. , 2010
7
(1A) Before making a decision to impose a condition under subsection
1
14B(1), the Secretary must give the registered provider a written
2
notice that:
3
(a) states that the Secretary intends to make that decision and
4
why; and
5
(b) gives the registered provider at least 72 hours to give the
6
Secretary written submissions about the matter.
7
19 Subsection 93(2)
8
After "Minister" (wherever occurring), insert "or Secretary".
9
20 At the end of subsection 96(1)
10
Add:
11
; or (d) a provider applies to the Administrative Appeals Tribunal for
12
review of a decision to suspend, cancel or impose a condition
13
on the provider's registration.
14
21 Sections 104 and 105
15
Repeal the sections.
16
22 Before subsection 106(1)
17
Insert:
18
(1A) This section applies to an offence against:
19
(a) subsection 19(5); or
20
(b) subsection 20(6); or
21
(c) subsection 21(5); or
22
(d) subsection 21A(1A); or
23
(e) subsection 28(5); or
24
(f)
subsection
29(5).
25
23 Subsection 106(1)
26
Omit "for an offence against subsection 104(1) or section 105".
27
24 Section 119
28
Repeal the section.
29
25 Before section 170
30
Schedule 1 Amendment of the Education Services for Overseas Students Act 2000
Part 1 Amendments
8 Education Services for Overseas Students Legislation Amendment Bill 2010 No. ,
2010
Insert:
1
170A Publishing results of enforcement and monitoring
2
(1) This section applies if the Minister, Immigration Minister or
3
Secretary takes action (including by exercising a power) in relation
4
to a provider:
5
(a) under Part 6, which deals with enforcing this Act; or
6
(b) under Part 7, which deals with the monitoring of providers.
7
(2) The Secretary may publish information about:
8
(a) the action taken; and
9
(b) the results of taking that action, including for example:
10
(i) recommendations for improvements that are given to a
11
provider; and
12
(ii) the action taken by the provider to implement those
13
recommendations.
14
(3) However, if the Secretary does publish that information, the
15
Secretary must ensure that:
16
(a) if the provider applies for review of the decision to take the
17
action--that fact, and the results of the review, are also
18
published; and
19
(b) the information is accurate and kept up-to-date.
20
(4) The Secretary may decide the way in which the publication is to be
21
made (on the Department's website, for example).
22
26 Paragraph 176(1)(aa)
23
After "14A", insert "or 14B".
24
25
Amendment of the Education Services for Overseas Students Act 2000 Schedule 1
Transitional provision Part 2
Education Services for Overseas Students Legislation Amendment Bill 2010 No. , 2010
9
Part 2--Transitional provision
1
27 Transitional provision--existing unlimited registrations
2
(1)
This item applies to a person who, immediately before this Schedule
3
commences, is a registered provider.
4
(2)
The provider's registration expires 5 years after this Schedule
5
commences, unless the provider is sooner re-registered.
6
7
Schedule 2 The Overseas Students Ombudsman
Part 1 Amendment of the Ombudsman Act 1976
10 Education Services for Overseas Students Legislation Amendment Bill 2010 No. ,
2010
Schedule 2--The Overseas Students
1
Ombudsman
2
Part 1--Amendment of the Ombudsman Act 1976
3
1 Title
4
Omit "and a Postal Industry Ombudsman", substitute ", a Postal
5
Industry Ombudsman and an Overseas Students Ombudsman".
6
2 After Part IIB
7
Insert:
8
Part IIC--Establishment, functions, powers and
9
duties of the Overseas Students
10
Ombudsman
11
Division 1--Preliminary
12
19ZF Definitions
13
In this Part:
14
officer, of a private registered provider, means a person who:
15
(a) is employed in the service of a private registered provider; or
16
(b) is a member of the staff of a private registered provider,
17
whether or not the person is employed by a private registered
18
provider; or
19
(c) is authorised by a private registered provider to exercise any
20
powers, or perform any functions, of the private registered
21
provider (including a contractor, for example).
22
Overseas Students Act means the Education Services for Overseas
23
Students Act 2000.
24
principal executive officer has the same meaning as in the
25
Overseas Students Act.
26
The Overseas Students Ombudsman Schedule 2
Amendment of the Ombudsman Act 1976 Part 1
Education Services for Overseas Students Legislation Amendment Bill 2010 No. , 2010
11
private registered provider means a registered provider, within the
1
meaning of the Overseas Students Act, that is not owned or
2
administered by:
3
(a) the Commonwealth; or
4
(b) a State or Territory.
5
19ZG Continued application of Part to former registered providers
6
(1) This section applies if:
7
(a) a private registered provider took action at a particular time;
8
and
9
(b) the Overseas Students Ombudsman receives a complaint in
10
relation to that action within 12 months after that time; and
11
(c) after that time, the private registered provider ceases to be a
12
private registered provider for the purposes of this Part.
13
(2) This Part applies, in relation to that complaint, as if the private
14
registered provider continued to be a private registered provider.
15
19ZH Part not to affect operation of other provisions of this Act
16
This Part does not, by implication, affect the operation of other
17
provisions in this Act.
18
Division 2--Establishment and functions of the Overseas
19
Students Ombudsman
20
19ZI Establishment of office of Overseas Students Ombudsman
21
(1) For the purposes of this Act, there is to be an Overseas Students
22
Ombudsman.
23
(2) The office of Overseas Students Ombudsman is to be held by the
24
person who holds the office of Commonwealth Ombudsman.
25
(3) The reference in subsection (2) to the person who holds the office
26
of Commonwealth Ombudsman includes a reference to a person
27
for the time being acting in that office because of an appointment
28
under section 29.
29
Schedule 2 The Overseas Students Ombudsman
Part 1 Amendment of the Ombudsman Act 1976
12 Education Services for Overseas Students Legislation Amendment Bill 2010 No. ,
2010
19ZJ Functions of Overseas Students Ombudsman
1
(1) The functions of the Overseas Students Ombudsman are:
2
(a) to investigate complaints made to him or her under this Act;
3
and
4
(b) to give private registered providers advice and training about
5
the best practice for the handling of complaints made by
6
overseas students; and
7
(c) to perform such other functions as are conferred on him or
8
her by:
9
(i) this Act or the regulations; or
10
(ii) another Act or regulations made under another Act.
11
(2) Subject to this Act, the Overseas Students Ombudsman:
12
(a) is to investigate action that he or she is authorised by this Act
13
to investigate and in respect of which a complaint has been
14
made to him or her; and
15
(b) may, on his or her own initiative, investigate action that he or
16
she is authorised by this Act to investigate.
17
(3) The Overseas Students Ombudsman is authorised by this Act to
18
investigate action taken by a private registered provider in
19
connection with an overseas student, an intending overseas student,
20
or an accepted student, within the meaning of the Overseas
21
Students Act.
22
19ZK Transfer of complaints
23
(1) This section applies if:
24
(a) a complaint has been made to the Overseas Students
25
Ombudsman with respect to action taken by a private
26
registered provider; and
27
(b) the Overseas Students Ombudsman, either before or after
28
starting to investigate that action, forms the opinion that:
29
(i) a statutory complaint handler has the function of
30
investigating, reviewing or enquiring into action of that
31
kind; or
32
(ii) a statutory office-holder has the function of
33
investigating, reviewing or enquiring into action of that
34
kind.
35
The Overseas Students Ombudsman Schedule 2
Amendment of the Ombudsman Act 1976 Part 1
Education Services for Overseas Students Legislation Amendment Bill 2010 No. , 2010
13
(2) In the case of a statutory complaint handler, the Overseas Students
1
Ombudsman:
2
(a) must not investigate or further investigate the action; and
3
(b) must transfer the complaint to the statutory complaint
4
handler.
5
(3) In the case of a statutory office-holder, if the Overseas Students
6
Ombudsman considers the action could be more conveniently or
7
effectively dealt with by the statutory office-holder, the Overseas
8
Students Ombudsman:
9
(a) may decide not to investigate or further investigate the
10
action; and
11
(b) if that decision is made, must transfer the complaint to the
12
statutory office-holder.
13
(4) If the Overseas Students Ombudsman transfers a complaint under
14
this section, the Overseas Students Ombudsman must, as soon as is
15
reasonably practicable:
16
(a) give notice of the transfer to the complainant; and
17
(b) give any information or documents that relate to the
18
complaint and are in the possession or under the control of
19
the Overseas Students Ombudsman to the statutory complaint
20
handler or statutory office-holder.
21
(5) In this section:
22
statutory complaint handler means a person, prescribed under the
23
regulations, who has a function of investigating action taken by a
24
private registered provider in connection with an overseas student,
25
an intending overseas student, or an accepted student, within the
26
meaning of the Overseas Students Act.
27
statutory office-holder means a person who holds any office or
28
appointment under a law of the Commonwealth, or under a law of
29
a State or Territory.
30
19ZL Discretion not to investigate certain complaints
31
(1) This section applies if:
32
(a) a complaint has been made to the Overseas Students
33
Ombudsman with respect to action taken by a private
34
registered provider; and
35
Schedule 2 The Overseas Students Ombudsman
Part 1 Amendment of the Ombudsman Act 1976
14 Education Services for Overseas Students Legislation Amendment Bill 2010 No. ,
2010
(b) the Overseas Students Ombudsman is of the opinion that:
1
(i) the complaint is frivolous or vexatious or was not made
2
in good faith; or
3
(ii) the complainant does not have a sufficient interest in the
4
subject matter of the complaint; or
5
(iii) an investigation, or further investigation, of the action is
6
not warranted having regard to all the circumstances; or
7
(iv) the complainant has not yet raised the complaint with
8
the registered provider; or
9
(v) the action came to the complainant's knowledge more
10
than 12 months before the complaint was made; or
11
(vi) the complainant has, or had, a right to cause the action
12
to which the complaint relates to be reviewed by a court
13
or by a tribunal constituted by or under an enactment
14
but has not exercised that right.
15
(2) The Overseas Students Ombudsman may, in his or her discretion:
16
(a) decide not to investigate the action; or
17
(b) if he or she has started to investigate the action--decide not
18
to investigate the action further.
19
Division 3--Powers and duties of the Overseas Students
20
Ombudsman
21
19ZM Application of other provisions of this Act to the Overseas
22
Students Ombudsman
23
(1) Subject to this section, the provisions covered by subsection (3)
24
apply in relation to the Overseas Students Ombudsman.
25
(2) Unless the contrary intention appears, the provisions covered by
26
subsection (3) apply as if:
27
(a) a reference in any of those provisions to the Ombudsman
28
were a reference to the Overseas Students Ombudsman; and
29
(b) a reference in any of those provisions to any of the following
30
were a reference to a private registered provider:
31
(i)
a
Department;
32
(ii) a prescribed authority;
33
(iii) a Department or a prescribed authority; and
34
The Overseas Students Ombudsman Schedule 2
Amendment of the Ombudsman Act 1976 Part 1
Education Services for Overseas Students Legislation Amendment Bill 2010 No. , 2010
15
(c) a reference in any of those provisions to an officer were a
1
reference to an officer within the meaning of this Part; and
2
(d) a reference in any of those provisions to a principal officer
3
were a reference to a principal executive officer within the
4
meaning of this Part.
5
(3) The following provisions are covered by this subsection:
6
(a) subsections 3(1) and (8);
7
(b) sections 3C and 3D;
8
(c) sections 6A to 7A;
9
(d) section 8, other than:
10
(i) paragraph (7A)(b); and
11
(ii) subsections (8) to (12);
12
(e) section 8A, other than subsections (1B) to (1D);
13
(f) section 9, other than:
14
(i) paragraphs (1AA)(ab) and (ac); and
15
(ii)
paragraph
(4)(ab);
16
(g) section 11A, other than subsections (1) and (5);
17
(h) sections 12 to 14;
18
(i)
section
18;
19
(j) section 19, other than subsection (8);
20
(k)
subsection
31(1);
21
(l)
section
33;
22
(m) section 34, other than subsections 34(1) to (2A);
23
(n) section 35, other than paragraph (1)(e) and
24
subparagraph (3)(b)(ia);
25
(o)
section
35AA;
26
(p) section 35A, other than subsection (3A);
27
(q) sections 35B to 38.
28
(4) Each provision of this Act specified in column 1 of the table
29
applies in relation to the Overseas Students Ombudsman in
30
accordance with the table:
31
Schedule 2 The Overseas Students Ombudsman
Part 1 Amendment of the Ombudsman Act 1976
16 Education Services for Overseas Students Legislation Amendment Bill 2010 No. ,
2010
Application of Act to Overseas Students Ombudsman
Column 1
Column 2
Column 3
Item
This provision of this
Act ...
applies in relation to
the Overseas Students
Ombudsman as if a
reference in that
provision to ...
were a reference to ...
1 subsection
7A(1) paragraph
5(1)(b) paragraph
19ZJ(2)(b)
2 subsection
11A(4) the
Minister
the Minister and the
Minister administering
the Overseas Students
Act
3 subsections
12(4)
and
(5)
section 15
section 19ZQ
4
section 18
section 17
section 19ZR
5
subsection 19(2)
section 15, 16 or 17
section 19ZQ or 19ZR
6 subsection
35(6A) paragraph
6(4A)(e),
(4D)(e) or (18)(d)
paragraph 19ZK(4)(b)
7 paragraph
35AA(1)(a)
paragraph 5(1)(b)
paragraph 19ZJ(2)(b)
8 subsection
35B(2)
(paragraph (a) of the
definition of listed
disclosure method)
Division 2 of Part II
section 19ZQ, 19ZR or
19ZS
9 subsection
35B(2)
(paragraph (b) of the
definition of listed
disclosure method)
section 6A
section 19ZK
19ZN Powers of the Overseas Students Ombudsman under section 9
1
The Overseas Students Ombudsman may exercise his or her
2
powers under section 9 for any of the following purposes:
3
(a) to determine whether he or she may investigate action under
4
this Part;
5
(b) to decide whether or not to investigate action, or to
6
investigate action further, under this Part;
7
(c) to start or further the conduct of an investigation under this
8
Part;
9
The Overseas Students Ombudsman Schedule 2
Amendment of the Ombudsman Act 1976 Part 1
Education Services for Overseas Students Legislation Amendment Bill 2010 No. , 2010
17
(d) to prepare a report in relation to an investigation under this
1
Part;
2
(e) if he or she has exercised a power for any of the purposes
3
mentioned in paragraphs (a) to (d)--to ascertain what action
4
has been taken by a private registered provider following the
5
exercise of that power.
6
19ZO Duty to accord procedural fairness
7
The Overseas Students Ombudsman must comply with the rules of
8
procedural fairness when exercising a power under this Act.
9
Example 1: If the Overseas Students Ombudsman sets out a critical opinion of a
10
person in a report under section 19ZQ, he or she must give that person
11
an opportunity to appear and make submissions to him or her (see
12
subsection 8(5)).
13
Example 2: The Overseas Students Ombudsman must accord procedural fairness
14
to a person if he or she sets out a critical opinion of the person:
15
(a) in disclosing information, or making a statement, under
16
subsection 35A(1); or
17
(b) in referring to an investigation in a report under section 19ZS.
18
19ZP Disclosure of identifying information
19
The Overseas Students Ombudsman must not, in referring to an
20
investigation in a report under section 19ZQ or 19ZS, disclose the
21
name of a complainant or any other matter that would enable a
22
complainant to be identified, unless it is fair and reasonable in all
23
the circumstances to do so.
24
19ZQ Overseas Students Ombudsman may report to private
25
registered provider
26
(1) This section applies if:
27
(a) an investigation under this Act into action taken by a private
28
registered provider has been completed; and
29
(b) the Overseas Students Ombudsman is of the opinion that the
30
action taken:
31
(i) appears to have been contrary to law; or
32
(ii) was unreasonable, unjust, oppressive or improperly
33
discriminatory; or
34
(iii) was otherwise, in all the circumstances, wrong; and
35
Schedule 2 The Overseas Students Ombudsman
Part 1 Amendment of the Ombudsman Act 1976
18 Education Services for Overseas Students Legislation Amendment Bill 2010 No. ,
2010
(c) the Overseas Students Ombudsman is of the opinion that:
1
(i) some particular action could be, and should be, taken to
2
rectify, mitigate or alter the effects of the action taken;
3
or
4
(ii) a policy or practice on which the action taken was based
5
should be altered; or
6
(iii) reasons should have been, but were not, given for the
7
action taken; or
8
(iv) any other thing should be done in relation to the action
9
taken.
10
(2) The Overseas Students Ombudsman must report accordingly to the
11
private registered provider.
12
(3) The Overseas Students Ombudsman:
13
(a) must include in the report his or her reasons for the opinions
14
specified in the report; and
15
(b) may also include in the report any recommendations he or
16
she thinks fit to make.
17
(4) The Overseas Students Ombudsman may ask the private registered
18
provider to give him or her, within a specified time, particulars of
19
any action that the private registered provider proposes to take with
20
respect to the matters and recommendations included in the report.
21
(5) The private registered provider may give the Overseas Students
22
Ombudsman comments about the report.
23
(6) The Overseas Students Ombudsman must give a copy of:
24
(a) the report; and
25
(b) any comments given under subsection (5);
26
to the Minister administering the Overseas Students Act.
27
19ZR Minister to table certain reports in Parliament
28
(1) This section applies if:
29
(a) the Overseas Students Ombudsman has given a report under
30
section 19ZQ to a private registered provider; and
31
(b) action that is, in the opinion of the Overseas Students
32
Ombudsman, adequate and appropriate in the circumstances
33
is not taken with respect to the matters and recommendations
34
The Overseas Students Ombudsman Schedule 2
Amendment of the Ombudsman Act 1976 Part 1
Education Services for Overseas Students Legislation Amendment Bill 2010 No. , 2010
19
included in the report within a reasonable time after the
1
report was given to the private registered provider.
2
(2) The Overseas Students Ombudsman may request the Minister
3
administering the Overseas Students Act to cause copies of the
4
report to be laid before each House of the Parliament.
5
(3) If the Overseas Students Ombudsman makes a request under
6
subsection (2), the Minister administering the Overseas Students
7
Act must cause copies of:
8
(a) the report; and
9
(b) any comments given under subsection 19ZQ(5) before the
10
request was made;
11
to be laid before each House of the Parliament within 15 sitting
12
days of that House after that Minister receives the request.
13
19ZS Annual reports
14
(1) The Overseas Students Ombudsman has the same powers and
15
duties under this section as the Ombudsman has under subsections
16
19(1) to (7B) with respect to the submission of reports relating to:
17
(a) his or her operations; and
18
(b) the exercise of his or her powers and the performance of his
19
or her functions.
20
(2) For the purposes of subsection (1), the powers and duties of the
21
Ombudsman do not include his or her powers and duties with
22
respect to reports relating to the Australian Capital Territory.
23
(3) A report relating to the operations of the Overseas Students
24
Ombudsman during a year may be included in a report under
25
section 19 relating to the operations of the Ombudsman during that
26
year.
27
(4) A report relating to the operations of the Overseas Students
28
Ombudsman during a year must:
29
(a) identify the number of complaints received by the Overseas
30
Students Ombudsman under this Part during that year; and
31
(b) if the Overseas Students Ombudsman has investigated action
32
under paragraph 19ZJ(2)(a)--identify:
33
(i) the number of the investigations started during that year;
34
and
35
Schedule 2 The Overseas Students Ombudsman
Part 1 Amendment of the Ombudsman Act 1976
20 Education Services for Overseas Students Legislation Amendment Bill 2010 No. ,
2010
(ii) the number of the investigations completed during that
1
year; and
2
(c) if the Overseas Students Ombudsman has investigated action
3
under paragraph 19ZJ(2)(b)--identify:
4
(i) the number of the investigations started during that year;
5
and
6
(ii) the number of the investigations completed during that
7
year; and
8
(d)
identify:
9
(i) the number of times when the Overseas Students
10
Ombudsman has made a requirement of a person under
11
section 9 during that year; and
12
(ii) the circumstances in which each of those requirements
13
was made.
14
(5) A report relating to the operations of the Overseas Students
15
Ombudsman during a year may include:
16
(a) details of the circumstances and number of occasions where
17
the holder of the office of Overseas Students Ombudsman
18
has decided, under section 19ZK, to transfer a complaint to a
19
statutory complaint handler or statutory office-holder; and
20
(b) details of recommendations made during that year in reports
21
under section 19ZQ; and
22
(c) statistical information about actions taken during that year as
23
a result of such recommendations; and
24
(d) details of action that the Overseas Students Ombudsman took
25
during the year to promote best practice in dealing with
26
complaints; and
27
(e) details of the Overseas Students Ombudsman's observations
28
regarding:
29
(i) any trends in complaints; or
30
(ii) any broader issues that arise from investigations.
31
19ZT Overseas Students Ombudsman may notify of misconduct
32
(1) This section applies if the Overseas Students Ombudsman forms
33
the opinion, either before or after completing an investigation
34
under this Act, that there is evidence that a person who is an officer
35
of a private registered provider has engaged in misconduct.
36
The Overseas Students Ombudsman Schedule 2
Amendment of the Ombudsman Act 1976 Part 1
Education Services for Overseas Students Legislation Amendment Bill 2010 No. , 2010
21
(2) If the Overseas Students Ombudsman is of the opinion that the
1
evidence is, in all the circumstances, of sufficient force to justify
2
his or her doing so, the Overseas Students Ombudsman may bring
3
the evidence to the notice of the principal executive officer of the
4
private registered provider.
5
19ZU Limitation on liability where information or documents
6
provided in good faith or when required to do so
7
(1) A person is neither liable to a proceeding, nor subject to a liability,
8
under an enactment merely because the person, in good faith and in
9
relation to the Overseas Students Ombudsman's functions or
10
powers:
11
(a) gives information to the Overseas Students Ombudsman
12
(other than in accordance with a requirement under
13
section 9); or
14
(b) gives a document or other record to the Overseas Students
15
Ombudsman (other than in accordance with a requirement
16
under section 9).
17
Note:
For information, documents or other records given in accordance with
18
a requirement under section 9, see subsections 9(4) and (5).
19
(2) To avoid doubt, subsection (1) does not prevent the person from
20
being liable to a proceeding, or being subject to a liability, for
21
conduct of the person that is revealed by the information,
22
document or record given to the Overseas Students Ombudsman.
23
(3) This section does not limit section 37.
24
3 After subsection 34(2A)
25
Insert:
26
(2B) The Overseas Students Ombudsman may, either generally or as
27
otherwise provided by the instrument of delegation, by instrument
28
in writing, delegate to a person all or any of his or her powers
29
under this Act, other than his or her powers under sections 19ZQ
30
and 19ZR and his or her powers referred to in section 19ZS.
31
4 Subsections 34(3) and (4)
32
Repeal the subsections.
33
34
Schedule 2 The Overseas Students Ombudsman
Part 2 Amendment of the Privacy Act 1988
22 Education Services for Overseas Students Legislation Amendment Bill 2010 No. ,
2010
Part 2--Amendment of the Privacy Act 1988
1
5 At the end of paragraph 50(2)(a)
2
Add:
3
(iv) to the Overseas Students Ombudsman under the
4
Ombudsman Act 1976; or
5
6 Subsection 50(2)
6
After ", the Postal Industry Ombudsman" (wherever occurring), insert ",
7
the Overseas Students Ombudsman".
8
7 At the end of paragraph 50(3)(a)
9
Add:
10
(iv) to the Overseas Students Ombudsman under the
11
Ombudsman Act 1976; or
12
13
The Overseas Students Ombudsman Schedule 2
Transitional provisions Part 3
Education Services for Overseas Students Legislation Amendment Bill 2010 No. , 2010
23
Part 3--Transitional provisions
1
8 Application of Part 1
2
The amendments made by Part 1 of this Schedule apply in relation to
3
action taken by a private registered provider before or after this
4
Schedule commences.
5
9 Transitional provision--reports under section 19ZS
6
The first report under section 19ZS of the Ombudsman Act 1976
7
relating to the operations of the Overseas Students Ombudsman during
8
a year must relate to the operations of the Overseas Students
9
Ombudsman during the period that:
10
(a) started on the commencement of this Part; and
11
(b) ended on the 30 June first occurring after that
12
commencement.
13

 

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