Commonwealth Numbered Regulations - Explanatory Statements

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EDUCATION SERVICES FOR OVERSEAS STUDENTS AMENDMENT (DEREGULATION AND OTHER MEASURES) REGULATIONS 2021 (F2021L00849)

EXPLANATORY STATEMENT

Issued by the authority of the Hon Alan Tudge MP, Minister for Education and Youth

Education Services for Overseas Students Act 2000

Education Services for Overseas Students Amendment (Deregulation and Other Measures) Regulations 2021

AUTHORITY

Section 177 of the Education Services for Overseas Students Act 2000 (the Act) provides the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or are necessary or convenient to be prescribed, for carrying out or giving effect to 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. These amendments are made in reliance on this power.

PURPOSE AND OPERATION

The Education Services for Overseas Students Amendment (Deregulation and Other Measures) Regulations 2021 (the Amendment Regulations) amend the Education Services for Overseas Students Regulations 2019 (the Principal Regulations) to facilitate more effective administration of the Education Services for Overseas Students (ESOS) legislative framework and reduce regulatory burden on the international education sector.

The Amendment Regulations amend the Principal Regulations to:

•                     remove the requirement for providers to give information on the payment of tuition fees through the Provider Registration and Information Management System (PRISMS) when a calendar month ends; and

•                     remove the now redundant infringement notice scheme.

Part 1 of the Amendment Regulations give effect to the Government's broader Deregulation Agenda in the 2021-22 Budget by removing the requirement for providers to give information on the payment of tuition fees when a calendar month ends.

Part 2 of the Amendment Regulations repeals provisions which are redundant in the Principal Regulations. The Regulatory Powers (Standardisation Reform) Act 2021 (the Regulatory Powers Reform Act) repeals provisions of the Act that allow an infringement notices scheme to be prescribed by regulation or legislative instrument, rendering the infringement notices provision of the Principal Regulations redundant.

REGULATORY IMPACT

The Office of Best Practice Regulation (OBPR) has assessed the first amendment as representing a minor reduction in reporting requirements for private providers, reducing regulatory burden under the Act. The Regulation Impact Statement (RIS) is at Attachment A.

OBPR has assessed the second amendment as unlikely to have regulatory impact on business, individuals or community organisations and therefore, the preparation of a RIS is not required.

The OBPR ID for the first and second amendment is 43558.

COMMENCEMENT

The Amendment Regulations commence on 1 July 2021, except for Part 2 of Schedule 1, which commences at the same time as Part 1 of Schedule 3 to the Regulatory Powers Reform Act. Part 1 of Schedule 3 to Regulatory Powers Reform Act commences on a single day to be fixed by Proclamation, or if the provisions do not commence within the period of 6 months beginning on the day the Regulatory Powers Reform Act received Royal Assent (which was on 26 March 2021), they commence on the day after the end of that period.

CONSULTATION

Consultations for these amendments were not required as they are generally beneficial, of a minor nature and do not substantially alter existing arrangements.

The aspect of Amendment Regulations which removes the requirement for providers to give information on the payment of tuition fees through PRISMS when a calendar month ends is beneficial to providers and does not adversely impact students. Providers will continue to be required to keep financial records of tuition fees paid by students, however, they will no longer be required to duplicate these records in the PRISMS system. While this reduces the regulatory burden on providers, regulators and students can continue to request fee payment records from providers on a case by case basis, where required.

The amendments which remove the now redundant infringement notice scheme do not alter existing arrangements, but rather remove provisions which are made redundant by operation of another legislative provision.

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 Amendment (Deregulation and Other Measures) Regulations 2021

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 Amendment (Deregulation and Other Measures) Regulations 2021 (Amendment Regulations) amend the Education Services for Overseas Students Regulations 2019 (the Principal Regulations) to remove the requirement for providers to give information on the payment of tuition fees through the Provider Registration and Information Management System (PRISMS) when a calendar month ends and remove the now redundant infringement notice scheme.

Human rights implications

The Instrument engages the following rights:

*         the right to education - Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), and Article 28 of the Convention on the Rights of the Child (UNCRC); and

*         the right to work - Article 6 of the ICESCR.

Right to education

The Amendment Regulations engage the right to education, contained in Article 13 of the ICESCR, insofar as it relates to the provision of education and training services to overseas students. Article 13(1) of the ICESCR recognises each person's right to education, and that education is important to "the full development of the human personality", and enables "all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups". The protections afforded by the Act and Regulations to overseas students demonstrate Australia's commitment to upholding the right to education for overseas students in Australia.

Similarly, Article 28(1) of the UNCRC is relevant to children who are overseas students studying in primary and secondary schools in Australia, and recognises the "right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity". The Act and Regulations, in conjunction with state and territory laws on school registration, young person and child protection and welfare, ensure there is a regulatory framework to ensure the quality of education experience for overseas students under 18 in Australian primary and secondary schools.

The Act and the Principal Regulations provide the regulatory framework under which education providers can be registered as providers on the Commonwealth Register of Institutions and Courses for Overseas students (CRICOS). This framework protects the integrity of Australia's international education sector by ensuring CRICOS registered providers have an appropriate level of Australian Government regulation and oversight, including establishing obligations on registered providers to keep and give student information.

The amendments will enable more effective administration of the Education Services for Overseas Students (ESOS) legislative framework and reduce regulatory burden on the international education sector.

To the extent the right to education is engaged, the measures contained in the Amendments Regulations are compatible with the right to education.

Right to work

The Commonwealth's commitment to the delivery of quality education and training services to overseas students provides a solid foundation and opportunity for people to engage with and pursue quality work objectives after completing their studies. The promotion of the right to education inherently leads into the promotion of the right to work, as education is one of the pathways to employment.

The Regulations engage the right to work, contained in Article 6 (1) of the ICESCR; "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]". Australia's high quality international education system provides a foundation on which overseas students may then pursue broader employment opportunities.

The Amendment Regulations are consistent with the Government objective of strengthening Australia's international education system by bringing consistency to the regulation of private and public education providers, as well as consistency with other legislative instruments.

The pathway from the right to education to the right to work is supported by the international education system provided for by the Act and Regulations. To the extent that the right to work is engaged, the measures contained in the Amendment Regulations are compatible with the right to work.

Conclusion

The Instrument is compatible with human rights because the measures advance the protection of human rights.

Alan Tudge, Minister for Education and Youth