Commonwealth Numbered Regulations - Explanatory Statements
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IMMIGRATION (EDUCATION) REGULATIONS 2018 (F2018L01095)
EXPLANATORY STATEMENT
Immigration (Education) Act 1971
Immigration (Education) Regulations 2018
Authority
The Immigration (Education) Act 1971 (Act) provides the basis for the Adult Migrant English Program (AMEP), which delivers English language tuition to eligible migrants and humanitarian entrants to assist them in learning foundational English language and settlement skills.
The Immigration (Education) Regulations 2018 (Regulations) are made under section 13 of the Act, which provides that the Governor-General may make regulations prescribing matters that are required or permitted by the Act, or are necessary or convenient to carry out or give effect to the Act. The Regulations prescribe matters for the purposes of sections 4C, 4D and 4E of 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.
Background
The Regulations repeal and replace the Immigration (Education) Regulations 1992 (the 1992 Regulations), which sunset, pursuant to section 50 of the Legislation Act 2003, on 1 October 2018.
The 1992 Regulations outline the processes according to which the Secretary (or their delegate) may make decisions on applications for extensions to time limits contained in the Act, as well as eligibility for citizenship courses.
Adult Migrant English Program (AMEP)
AMEP is a program that provides free English courses (AMEP tuition) to eligible new migrants and humanitarian entrants. Currently, the Department of Education and Training (department) administers AMEP through contracted AMEP service providers.
The legislative basis for AMEP is set out in the Act. Under the Act, eligible persons have a limited period of time in which to register with a provider of an approved English course, as well as to commence and complete their AMEP Tuition.
Sections 4C and 4D of the Act specify time limits for registration, commencement and completion of approved English courses, after which an eligible person becomes ineligible for AMEP tuition. However, the Regulations allow potential AMEP clients to apply to the Secretary for an extension to these time limits. This extension of time enables an eligible person to access AMEP tuition beyond the legislated time limits in specified circumstances. The Secretary approves applications for extensions to time limits in accordance with the matters prescribed in the Regulations.
Citizenship courses
Section 4E of the Act provides that the Minister may arrange for citizenship courses to be provided inside or outside Australia to persons prescribed by the Regulations. The term 'citizenship course' is defined in section 3 of the Act as a 'course of instruction designed to impart an understanding of ways of life in Australia and of the rights and duties of an Australian citizen'. Section 4E allows the Minister to provide access to the Citizenship Course-Based Test to persons seeking to become Australian citizens under subsection 21(2) of the Australian Citizenship Act 2007 (Australian Citizenship Act). The Citizenship Course-Based Test is currently administered by the Department of Home Affairs, who liaise directly with contracted AMEP service providers.
Purpose and operation
AMEP
Under the 1992 Regulations, the timeframes for applying for extensions to AMEP differed depending on whether an eligible person applying for an extension of time (applicant) was over or under 18 years of age. The Regulations align the timeframes for applying for an extension of time, so that applicants have the same timeframe in which to make their application, regardless of age. However, the Regulations also introduce a new requirement that applications for extensions of time for registration, commencement or tuition must be made within ten years of the applicant's visa commencement day.
Aside from this change, the Regulations have substantially the same effect as the 1992 Regulations. The Regulations will enable the department to continue to process applications for extension of time to access AMEP. Currently, around 9,000 applications for extension are made per annum. Decisions on applications made under the 1992 Regulations continue to have force, if made prior to the commencement of the Regulations.
Citizenship courses
Section 10 of the Regulations preserve the arrangements under the 1992 Regulations, whereby the Minster is able to make the Course-Based Test available to persons seeking to become Australian citizens under subsection 21(2) of the Australian Citizenship Act.
Regulation Impact Statement
The Office of Best Practice Regulation (OBPR) has advised that a Regulatory Impact Statement is not required (OBPR ID 22872).
Commencement
The Regulations commence 1 October 2018.
Consultation
In accordance with section 17 of the Legislation Act 2003, the department has consulted with the Department of Home Affairs, Department of Social Services, Attorney-General's Department, Department of Jobs and Small Business, and AMEP service providers contracted by the department to deliver AMEP tuition in relation to the Regulations.
Detailed explanation of the Immigration (Education) Regulations 2018 provisions
Section 1 - Name
Section 1 provides that the title of the instrument is the Immigration (Education) Regulations 2018 (Regulations).
Section 2 - Commencement
Section 2 provides for the commencement of the Regulations on 1 October 2018.
Section 3 - Authority
Section 3 provides that the Regulations are made under the Act. Section 13 of the Act provides that the Governor-General may make regulations required or permitted by the Act, or necessary or convenient to carry out or give effect to the Act.
Section 4 - Schedule
Section 4 provides that each instrument that is specified in a Schedule to the Regulations is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the Regulations has effect according to its terms.
Section 5 - Definitions
Section 5 defines terms used in the Regulations.
A note to the section explains that a number of expressions used in the Regulations derive their meaning from the Act.
Part 2--English courses
Section 6 - Requirements for application for extension of period for registration or commencement
Under subsection 4C(2) of the Act, a person who was aged under 18 years on their visa commencement day stops being eligible for an English course if they fail to register with the provider of an approved English course within the period of 12 months starting on that day (see subparagraph 4C(2)(a)(i)). A person who was aged 18 years or over on their visa commencement day, stops being eligible for an English course if they fail to register with the provider of an approved English course with the period of 6 months starting on that day (see subparagraph 4C(2)(a)(ii)).
Irrespective of age, a person stops being eligible to register or commence an approved English course, if they fail to start within the period of 12 months starting on his or her visa commencement day (see paragraph 4C(2)(b)).
Subsection 4C(3) and paragraph 4C(4)(a) of the Act, however, provide that a person may apply to the Secretary for an extension of a period for registration or commencement of an English course, provided the application is made in the manner and within the period prescribed by the Regulations. Paragraph 6(a) of the Regulations prescribes, for the purposes of paragraph 4C(4)(a) of the Act, that an application made under subsection 4C(3) of the Act for an extension of a period for registration or commencement of an English course must be made electronically through a provider of an approved English course (an AMEP service provider), in a form approved in writing by the Secretary. This reflects current practice and supports the efficient administration of applications through information and communication technology systems.
Paragraph 6(b) of the Regulations introduces a new requirement that applications must be made within 10 years after the applicant's visa commencement day. The applicant's visa commencement day is defined by section 3(1) of the Act as 'the earlier of the following days: (a) the first day the person was in Australia on or after the day when a permanent visa held by the person came into effect; (b) the first day the person was in Australia on or after the day when a temporary visa of a class mentioned in subparagraph 4A(a)(ii) held by the person came into effect'. In December 2017, the Parliamentary Joint Standing Committee on Migration: Inquiry into Migrant Settlement Outcomes, recommended that AMEP clients be given 10 years to complete their tuition. The change provides recognition that some migrants will need additional time to attend to settlement needs ahead of attending AMEP tuition, but limits the government's liability to provide tuition indefinitely.
This measure also aligns the timeframes for applicants aged over and under 18 years of age to provide equitable access to AMEP for persons requiring extensions, regardless of their age. Under the 1992 Regulations, if an applicant was under 18 years of age on their visa commencement day, their application for extension needed to be made within a maximum period of 12 months from their visa commencement day, whereas this requirement did not exist for persons 18 years of age or over.
Section 8 of the Regulations replicates these new application requirements for applications to extend the time limit to complete tuition.
Section 7 - Matters to which the Secretary must have regard when deciding on extension of period of registration or commencement
Section 7 of the Regulations outlines the matters the Secretary must consider when deciding on an application for extension of time limits to register or commence tuition. The matters are distinguished between those relevant to persons aged under 18 years and those aged 18 years or over on their visa commencement day.
The matters relate to events and circumstances during the applicant's non-participation period that provide justification for the applicant's failure to register for, or commence, tuition. Section 5 of the Regulations defines non-participation period, in relation to an application to mean the period starting on the applicant's visa commencement day and ending on the day on which the application is made.
Subsection 7(1) of the Regulations prescribes the matters the Secretary must consider for an applicant aged under 18 years on their visa commencement day. The matters are:
* the applicant's medical history during the non-participation period, including the nature and duration of any serious illness or injury suffered by the applicant during the non-participation period
* the applicant's family and caring commitments during the non-participation period
* any other compelling and compassionate reasons that existed during the non-participation period for making a decision on the application.
Subsection 7(2) of the Regulations prescribes the matters the Secretary must consider for an applicant who was aged 18 years or over on their visa commencement day. The matters are:
* the applicant's record in learning English during the non-participation period;
* during the non-participation period, the applicant's participation in, and suitability for, educational services generally available to members of the public;
* the applicant's employment record during the non-participation period;
* the applicant's medical history during the non-participation period, including the nature and duration of any serious illness or injury suffered by the applicant during that period;
* the applicant's family and caring commitments during the non-participation period;
* whether the applicant was not in Australia at any time during the non-participation period;
* any other compelling or compassionate reasons that existed during the non-participation period for making a particular decision on the application.
The inclusion at paragraph 7(2)(g) of the Regulations of a more general consideration for 'any compelling or compassionate reasons that existed during the non-participation period for making a particular decision on the application’ is intended to account for unforeseeable or unique events and circumstances that do not fall within the prior categories.
Section 8 - Requirements for application for extension of time limit on tuition
Under subsection 4D(2) of the Act, a person will stop being eligible for an English course at the end of the period of 5 years starting on his or her visa commencement day. Under subsection 4D(3) and paragraph 4D(4)(a) of the Act, a person may apply to the Secretary for an extension of a time limit on tuition, provided the application is made in the manner and within the period prescribed by the Regulations.
Consistent with the requirements by section 6 of the Regulations for applications for extension of period for registration or commencement, section 8 of the Regulations prescribes for the purposes of paragraph 4D(4)(a) of the Act, that an application under subsection 4D(3) of the Act must be made:
* through a provider of an approved English course (an AMEP service provider), in electronic form approved in writing by the Secretary; and
* within 10 years after the applicant's visa commencement day.
Section 9 - Matters to which the Secretary must have regard when deciding on extension of time limit on tuition
Section 9 of the Regulations prescribes for the purposes of paragraph 4D(6)(a) of the Act, the matters the Secretary must consider in deciding on an application for extension of the time limit to complete tuition under subsection 4D(5) of the Act. The matters relate to events and circumstances during the applicant's non-participation period that provide justification for the applicant's inability to complete tuition within the 5 year time limit prescribed by subsection 4D(2) of the Act. The matters are:
* the applicant's medical history during the non-participation period, including the nature and duration of any serious illness or injury suffered by the applicant during that period;
* whether a family member of the applicant died during the non-participation period;
* whether the applicant had a traumatic experience during the non-participation period;
* any compelling and compassionate reasons that will prevent, or have prevented, the applicant completing their tuition.
The inclusion at paragraph 9(d) of the Regulations of a more general consideration for 'any compelling and compassionate reasons that will prevent, or have prevented, the applicant from having 510 hours of tuition' is intended to account for unforeseeable or unique events and circumstances that do not fall within the prior categories.
Section 10 - Persons to whom citizenship courses may be provided
Section 10 of the Regulations prescribes for the purposes of section 4E of the Act, the persons to whom the Minister may arrange for citizenship courses to be provided. The prescribed persons are those who have made an application for Australian citizenship under subsection 21(1) of the Australian Citizenship Act 2007 (Australian Citizenship Act) on the basis that the person may be eligible to become an Australian citizen under subsection 21(2) of that Act. The term 'citizenship course' is defined in section 3 of the Act as a 'course of instruction designed to impart an understanding of ways of life in Australia and of the rights and duties of an Australian citizen'.
Subsection 21(2) of the Australian Citizenship Act set outs the 'general eligibility' criteria that the Minister (being the Minister responsible for administering the Australian Citizenship Act, currently the Minister for Home Affairs) must be satisfied of in order for a person to be eligible to become an Australian citizen. Subsection 21(2A) of the Australian Citizenship Act provides that the eligibility criteria in paragraphs (2)(d), (e) and (f) of the Australian Citizenship Act are taken to be satisfied only if the Minister is satisfied that the person has sat and successfully completed the citizenship test approved in a determination made under section 23A of the Australian Citizenship Act.
At the date of the commencement of the Regulations, one of the citizenship tests approved in the determination made under section 23A of the Australian Citizenship Act is a Course-Based Test provided by an organisation that is contracted to provide services under AMEP.
The measure in section 10 of the Regulations preserves the arrangements under the 1992 Regulations, whereby the Minster is able to make this Course-Based Test available to persons seeking to become Australian citizens under subsection 21(2) of the Australian Citizenship Act.
Section 11 - Applications made under the Immigration (Education) Regulations 1992
Section 11 of the Regulations is a transitional provision and provides that decisions made in relation to an application made under subsection 4C(3) or 4D(3) of the Act before the commencement of section 11 will continue to apply despite the repeal of the 1992 Regulations.
Schedule 1 - Repeals
Item 1 of Schedule 1 to the Regulations repeals the 1992 Regulations.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Immigration (Education) Regulations 2018
The Immigration (Education) Regulations 2018 (Regulations) are 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.
Authority
The Immigration (Education) Act 1971 (Act) provides the basis for the Adult Migrant English Program (AMEP), which delivers English language tuition to eligible migrants and humanitarian entrants to assist them in learning foundational English language and settlement skills.
The Regulations are made under section 13 of the Act, which provides that the Governor-General may make regulations prescribing matters that are required or permitted by the Act, or are necessary or convenient to carry out or give effect to the Act. The Regulations prescribe matters for the purposes of sections 4C, 4D and 4E of 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.
Background
The Regulations repeal and replace the Immigration (Education) Regulations 1992 (the 1992 Regulations), which sunsets, pursuant to section 50 of the Legislation Act 2003, on 1 October 2018.
The 1992 Regulations outline the processes according to which the Secretary (or their delegate) may make decisions on applications for extensions to time limits contained in the Act, as well as eligibility for citizenship courses.
Adult Migrant English Program (AMEP)
AMEP is a program that provides free English courses (AMEP tuition) to eligible new migrants and humanitarian entrants. Currently, the Department of Education and Training (department) administers AMEP through contracted AMEP service providers.
The legislative basis for AMEP is set out in the Act. Under the Act, eligible persons have a limited period of time in which to register with a provider of an approved English course, as well as to commence and complete their AMEP Tuition.
Sections 4C and 4D of the Act specify time limits for registration, commencement and completion of approved English courses, after which an eligible person becomes ineligible for AMEP Tuition. However, the Regulations allow potential AMEP clients to apply to the Secretary for an extension to these time limits. This extension of time enables an eligible person to access AMEP Tuition beyond the legislated time limits in specified circumstances. The Secretary approves applications for extensions to time limits in accordance with the matters prescribed in the Regulations.
Citizenship courses
Section 4E of the Act provides that the Minister may arrange for citizenship courses to be provided inside or outside Australia to persons prescribed by the Regulations. The term 'citizenship course' is defined in section 3 of the Act as a 'course of instruction designed to impart an understanding of ways of life in Australia and of the rights and duties of an Australian citizen'. Section 4E allows the Minister to provide access to the Citizenship Course-Based Test to persons seeking to become Australian citizens under subsection 21(2) of the Australian Citizenship Act 2007 (Australian Citizenship Act). The Citizenship Course-Based Test is currently administered by the Department of Home Affairs, who liaise directly with contracted AMEP service providers.
Purpose and operation
AMEP
Under the 1992 Regulations, the timeframes for applying for extensions to AMEP differed, depending on whether an eligible person applying for an extension of time (applicant) was over or under 18 years of age. The Regulations align the timeframes for applying for an extension of time, so that applicants have the same timeframe in which to make their application, regardless of age. However, the Regulations also introduce a new requirement that applications for extensions of time for registration, commencement or tuition must be made within ten years of the applicant's visa commencement day.
Aside from this change, the Regulations have substantially the same effect as the 1992 Regulations and allow the department to continue to administer extensions to access AMEP. Decisions on applications made under the 1992 Regulations continue to have force, if made prior to the commencement of the Regulations.
Citizenship courses
Section 10 of the Regulations preserve the arrangements under the 1992 Regulations, whereby the Minister is able to make the Course-Based Test available to persons seeking to become Australian citizens under subsection 21(2) of the Australian Citizenship Act.
Human rights implications
The Regulations engage 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, and
* the right to privacy - Article 17(1) of the International Covenant on Civil and Political Rights (ICCPR)
* right to equality and non-discrimination - Article 5 of the Convention on the Elimination of all Forms of Racial Discrimination (CERD)
* right to acquire a nationality - Article 24(3) of the ICCPR
* rights of the child - Articles 22 and 28 of the Convention on the Rights of the Child (CRC)
Right to Work
The Regulations engage the right to work which is set out in Article 6 of the ICESCR.
Under Article 6(1) of the ICESCR, State Parties are required to recognise the right to work, which includes the right of everyone to have 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.
The measures in the Regulations enable eligible migrants and humanitarian entrants to apply for extensions of time to register for, commence and complete approved English courses provided under AMEP. The approved English courses assist eligible migrants and humanitarian entrants to access free tuition in learning foundational English language and settlement skills, through the delivery of 510 hours of English tuition at no charge through the AMEP. These skills are fundamental to equipping eligible migrants and humanitarian entrants with skills to access tertiary and vocational education and training opportunities, and to participate in the employment market.
The Regulations are compatible with the right to work.
Right to Education
The Regulations engage 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 right to education requires State Parties to have functioning educational institutions and programs in sufficient quantity. It also requires primary and secondary education to be available to all, and for higher education to be made equally accessible to all on the basis of capacity.
The measures in the Regulations enable eligible migrants and humanitarian entrants to apply for extensions of time to register for, commence and complete approved English courses provided under AMEP. In effect, the measures in the Regulations facilitate and extend accessibility to AMEP and ensure eligible migrants and humanitarian entrants have a maximised opportunity to access 510 hours of English tuition at no charge. This is because the measures enable the Secretary (or their delegate) to extend the statutory time limit in which an eligible person must register, commence and complete their AMEP tuition. The measures also enable the Secretary (or their delegate) to take into account the eligible person's circumstances when making a decision on extending the statutory time limit.
The Regulations are compatible with the human right to education.
Right to Privacy
The Regulations engage the right to privacy and reputation contained in Article 17 of the ICCPR.
Article 17(1) of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with their privacy. The measures in Part 2 of the Regulations require the Secretary to consider an applicant's personal and sensitive information, including health information, when deciding whether to approve an application for extension to time limits.
The measures in the Regulation do not require a person to provide their personal information to the Secretary (or their delegate). However, if a person chooses to apply for an extension of time, their application will include personal information (and may include sensitive personal information) so the Secretary (or their delegate) can make a decision on whether to grant an extension of time. The provision of this information is necessary to allow the Secretary to assess an applicant's individual circumstances, in order to determine whether an extension to existing time limits should be granted.
To the extent the right to privacy is engaged the collection and use of personal information is reasonable and there are adequate safeguards in place for the protection of this right. A person is not required to provide their personal information to the Secretary (or their delegate) unless they are seeking an extension of time. The information required in support of a request for an extension of time is limited to that which is minimally necessary for the Secretary (or their delegate) to make a decision under the Act. Additionally, the Privacy Act 1988 (Privacy Act) is the legal framework which applies to the provision of personal information in this context, and section 14 and Schedule 1 to the Act set out the Australian Privacy Principles which prescribe how Government departments can lawfully collect, solicit, store, use and disclose personal information. As the department is subject to the Privacy Act, the collection, use and disclosure of any personal information provided with applications is treated consistently with the requirements of the Australian Privacy Principles, and as such, adequate safeguards are in place for the protection of personal information.
The Regulations are compatible with the right to privacy.
Right to equality and non-discrimination
The Regulations engage the right to equality and non-discrimination contained in Article 5(e)(v) of CERD.
Article 5(e)(v) of CERD provides that persons should not face discrimination on the basis of race, colour, or national or ethnic origin, in relation to accessing education and training.
Eligibility for AMEP is outlined in section 4A of the Act. AMEP is a beneficial program that is available to migrants and humanitarian entrants on the basis of their need to gain functional English proficiency to participate in Australian society, rather than on the basis of their race, colour, or ethnic origin. The availability of AMEP to people on the distinction of their national origin is reasonable, proportionate and justified to attain the objective of AMEP. Other language and literacy programs are available to persons who do not meet the eligibility for the AMEP due to their visa or citizenship.
The Regulations are compatible with the right to equality and non-discrimination, and to the extent that this right is limited, the limitation is reasonable, necessary and proportionate.
Right to acquire a nationality
The Regulations engage the right to a nationality contained in Article 24(3) of the ICCPR.
Article 24(3) of the ICCPR provides that every child has the right to acquire a nationality.
Part 3 of the Regulations prescribe a class of persons eligible to whom the Minister may arrange for citizenship courses to be provided under the Act. Section 10 of the Regulations prescribes a person who has made an application under subsection 21(1) of the Australian Citizenship Act 2007 on the basis that the person may be eligible to become an Australian citizen under subsection 21(2) of that. This class of persons is not limited by age, accordingly some children may be captured in this class of persons. This measure provides a pathway for new migrants and humanitarian entrants to be able to satisfy the requirements to obtain Australian citizenship, enhancing their ability to attain a nationality.
The Regulations are compatible with the right to acquire a nationality.
Rights of the child
The Regulations engage the rights of the child contained in Articles 22 and 28 of the CRC.
Article 22 of the CRC provides that children who come into a country as refugees should have the same rights as children who are born in that country. Article 28 of the CRC provides that children have the right to an education.
Part 2 of the Regulations prescribe matters that the Secretary must consider in granting an extension for persons aged under 18 years. These matters support children to access AMEP to gain functional English proficiency to participate in Australian society.
The Regulations are compatible with the rights of the child.
Conclusion
The Regulations are compatible with human rights.