Education Services for Overseas Students (Registration Charges) Amendment Bill 2021 [2021] AUSStaCSBSD 163 (4 August 2021)

• Education Services for Overseas Students (Registration Charges) Amendment Bill 2021
• Broad discretionary power Significant matters in delegated legislation4

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Education Services for Overseas Students (Registration Charges) Amendment Bill 2021

Purpose	This bill seeks to amend the Education Services for Overseas Students (Registration Charges) Act 1997 to update the registration charges to recover the costs for certain regulatory activities under the Education Services for Overseas Students Act 2000
Portfolio	Education and Youth
Introduced	House of Representatives on 24 June 2021
Bill status	Before the House of Representatives

Broad discretionary power
Significant matters in delegated legislation^[4]

2.9 In Scrutiny Digest 10 of 2021 the committee requested the minister's advice as to:

• why it is considered necessary and appropriate to give the minister broad discretionary powers to exempt providers from a charge in delegated legislation; and

• whether the bill can be amended to include at least high-level guidance on the face of the primary legislation regarding when it will be appropriate provide for such exemptions.^[5]

Minister's response^[6]

2.10 The minister advised:

It is appropriate to include the capacity to exempt providers, should it be necessary, in the instrument that defines the parameters of the charge. Having an exemption power in delegated legislation provides the flexibility necessary for the Government to be responsive to the needs of international education providers, either as a whole or for particular classes of providers, and to act quickly if needed. The COVID-19 pandemic has provided numerous examples where the Government needed to respond quickly to provide targeted financial relief to particular groups. This included, for example, the exemption or refund of the regulatory charges for international education providers from 1 January 2020 to 31 December 2021.
Any such exemption, should it be instituted, would necessarily be consistent with the legislative intent outlined in the Bill and the Government's overarching policy framework, including the Australian Government Charging Framework. The latter requires that entities that create the demand for a function should contribute to the cost of regulation through cost recovery unless the Government has decided to fund that activity. A decision to exempt one or more classes of registered providers from a charge or a component of a charge for a period of time, could not be taken lightly or without careful consideration.
The Government does not consider it is necessary to amend the Bill to provide guidance on the application of an exemption provision. As outlined above, any exercise of such a power could only be done after careful consideration and in manner consistent with the legislative intent of the Bill and the Australian Government's overall cost recovery policy.

Committee comment

2.11 The committee thanks the minister for this response. The committee notes the minister's advice that having an exemption power in delegated legislation provides the flexibility necessary for the government to be responsive to the needs of international education providers, either as a whole or for particular classes of providers, and to act quickly if needed.

2.12 The committee also notes the minister's advice that any such exemption, should it be instituted, would necessarily be consistent with the legislative intent outlined in the bill and the government's overarching policy framework, including the Australian Government Charging Framework.

2.13 The committee has generally not accepted a desire for administrative flexibility or a reliance on non-legislative policy guidance to be a sufficient justification to provide broad discretionary powers in circumstances where there is no guidance on the face of the primary legislation as to how the power should be exercised. From a scrutiny perspective, it remains unclear to the committee why at least high-level guidance could not be provided on the face of the primary legislation regarding when it will be appropriate to provide for exemptions from the proposed registered higher education provider charge.

2.14 The committee requests that an addendum to the explanatory memorandum containing the key information provided by the minister be tabled in the Parliament as soon as practicable, noting the importance of these explanatory materials as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.15 The committee otherwise draws this matter to the attention of senators and leaves to the Senate as a whole the appropriateness of giving the minister a broad discretionary power to provide for exemptions from the proposed registered higher education provider charge in delegated legislation.

2.16 The committee also draws this matter to the attention of the Senate Standing Committee for the Scrutiny of Delegated Legislation.

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[4] Schedule 1, item 2, proposed subsections 5(9), 6(8) and 7(8). The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(ii) and (iv).

[5] Senate Scrutiny of Bills Committee, Scrutiny Digest 10 of 2021, p. 3.

[6] The minister responded to the committee's comments in a letter dated 29 July 2021. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 11 of 2021 available at: www.aph.gov.au/senate_scrutiny_digest.