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Immigration (Education) Act 1971

  • - C2004C00310
  • In force - Superseded Version
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Act No. 3 of 1971 as amended, taking into account amendments up to Act No. 146 of 1999
An Act relating to the provision of certain Courses of Instruction for Immigrants and certain other Persons
Administered by: Immigration and Citizenship
Start Date 05 Dec 1999
End Date 30 Jun 2007

IMMIGRATION (EDUCATION) ACT 1971



Immigration (Education) Act 1971

Act No. 3 of 1971 as amended
Consolidated as in force on 22 December 1999
(includes amendments up to Act No. 146 of 1999)
Prepared by the Office of Legislative Drafting,
Attorney-General's Department, Canberra



Long Title

An Act relating to the provision of certain Courses of Instruction for Immigrants and certain other Persons


IMMIGRATION (EDUCATION) ACT 1971
- SECT 1
Short title [see Note 1]

This Act may be cited as the Immigration (Education) Act 1971.

IMMIGRATION (EDUCATION) ACT 1971
- SECT 2
Commencement [see Note 1]

This Act shall come into operation on the day on which it receives the Royal Assent.

IMMIGRATION (EDUCATION) ACT 1971
- SECT 3
Interpretation

In this Act, unless the contrary intention appears:

approved course means an English course or a citizenship course provided under section 4.

approved English course means an English course provided in accordance with section 4 or 4B.

capital equipment of an educational nature includes tape recording and playing equipment and portable class-rooms, but does not include any other building.

citizenship course means 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.

English course means a course of instruction in the English language.

functional English has the same meaning as in the Migration Act.

independent school means a school or institution in Australia, other than a school or institution conducted by the Government of the Commonwealth, a State or a Territory, at which primary education or secondary education is, or both are, provided, but does not include a school conducted for the profit, direct or indirect, of an individual or individuals.

Migration Act means the Migration Act 1958.

permanent entry permit has the same meaning as in the Migration Act as in force immediately before the commencement of section 3 of the Migration Reform Act 1992.

permanent visa has the same meaning as in the Migration Act.

school authority, in relation to an independent school, means the person or body conducting the school.

teaching and learning materials includes printed materials, audio materials, visual aids and audiovisual aids.

temporary visa has the same meaning as in the Migration Act.

IMMIGRATION (EDUCATION) ACT 1971
- SECT 4
English courses and citizenship courses

The Minister may arrange for English courses and citizenship courses to be provided:

(a)
outside Australia for persons intending to migrate to Australia; and
(b)
in Australia for persons who:

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(i)
hold a permanent visa; or
(ii)
hold a temporary visa of a class specified by the Minister by notice published in the Gazette; or
(iii)
previously held a permanent entry permit or a permanent visa and have become Australian citizens; or
(iv)
are under 18 and have at least one parent who has held or holds a permanent entry permit or a permanent visa; or
(v)
are citizens of New Zealand who hold a special category visa; and
(c)
in the Territory of Cocos (Keeling) Islands or in the Territory of Christmas Island for persons in the Territory concerned who:
(i)
hold a permanent visa; or
(ii)
hold a temporary visa of a class specified by the Minister by notice published in the Gazette; or
(iii)
previously held a permanent entry permit or a permanent visa and have become Australian citizens; or
(iv)
are under 18 and have at least one parent who has previously held or holds a permanent entry permit or a permanent visa.

IMMIGRATION (EDUCATION) ACT 1971
- SECT 4A
Fees for English courses

(1)
The regulations may provide for the charging and recovery of fees, not exceeding the applicable fee limit per year per student, in respect of English courses provided in accordance with section 4.

(2)
Regulations for the purposes of subsection (1) must:

(a)
exempt from any fees prescribed under that subsection persons who, at the time of enrolment in the English course, are:
(i)
the holders of a health care card; or
(ii)
registered job seekers; and
(b)
provide that fees are payable on enrolment in the English course.
(3)
The regulations may do one or both of the following:

(a)
prescribe different fees in relation to different classes of courses;
(b)
provide for the refund, reduction or waiving of fees in cases identified in the regulations.
(3A)
The applicable fee limit in relation to a course that a person enrols in during a financial year starting on or after 1 July 1995 is, subject to subsection (3B), the amount worked out under the formula:

A graphic exists here.

where:

new CGFCE number means the number worked out as follows:

(a)
take the first set of Commonwealth Government Final Consumption Expenditure Implicit Price Deflators to be issued by the Department of Finance after 1 January in the previous financial year;
(b)
find the number that relates to the period ending on 31 December in the previous financial year;
(c)
that number is the new CGFCE number.

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base CGFCE number means the number worked out as follows:

(a)
take the first set of Commonwealth Government Final Consumption Expenditure Implicit Price Deflators to be issued by the Department of Finance after 1 January in the previous financial year;
(b)
find the number that relates to the period ending on 31 December 1993;
(c)
that number is the base CGFCE number.
(3B)
If an amount worked out under the formula in subsection (3A) is not a multiple of $5, the amount is to be rounded as follows:

(a)
if the amount exceeds the nearest lower multiple of $5 by $2.50 or more—round the amount up to the nearest higher multiple of $5;
(b)
in any other case—round the amount down to the nearest lower multiple of $5.
(4)
In this section:

health care card means a card prescribed for the purposes of this section that is issued by the government of the Commonwealth, of a State or of a Territory.

registered job seeker means a person prescribed for the purposes of this section who is seeking work.

IMMIGRATION (EDUCATION) ACT 1971
- SECT 4B
English courses

The Minister is to arrange for English courses to be provided for persons who:

(a)
have made an application for a permanent visa; and
(b)
were at least 18 at the time the permanent visa came into force; and
(c)
do not have functional English at the time of making the application; and
(d)
have paid, or are exempt from paying, visa application charge under section 45A of the Migration Act; and
(e)
are not excluded from being provided with English tuition by the regulations.

IMMIGRATION (EDUCATION) ACT 1971
- SECT 4C
Obligation to provide English tuition

Subject to section 4D, the Commonwealth is obliged to provide, or arrange the provision of, 510 hours of tuition in an approved English course to a person if the person:

(a)
has made an application for a permanent visa; and
(b)
was at least 18 at the time the permanent visa came into force; and
(c)
does not have functional English at the time of making the application; and
(d)
has paid, or is exempt from paying, visa application charge under section 45A of the Migration Act; and
(e)
is not excluded from being provided with English tuition by the regulations; and
(f)
has not previously been entitled under this Act to 510 hours of tuition in an approved English course.

IMMIGRATION (EDUCATION) ACT 1971
- SECT 4D
Cessation of obligation to provide English tuition

(1)
Subject to this section, the obligation of the Commonwealth to a person under section 4C ceases:


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(a)
if the provider of an approved English course determines, in writing, in accordance with procedures approved in writing by the Secretary, that the person has functional English; or
(b)
if the person fails to register with the provider of an approved English course within the period of 3 months starting on the visa commencement date; or
(c)
if the person fails to commence an approved English course within the period of 12 months starting on the visa commencement date; or
(d)
at the end of the period of 36 months starting on the visa commencement date.
(2)
If:

(a)
the obligation to a person would, under subsection (1), or under this subsection, cease at a particular date; and
(b)
the Secretary is satisfied that it would be unreasonable for the obligation to so cease;

the Secretary may, in writing, determine that the obligation is not to cease, or is to cease only at a later date.

(3)
In determining whether it is unreasonable for an obligation to cease, the Secretary may only have regard to:

(a)
the prevention of the person from undertaking the whole or a part of an approved English course by the action or inaction of a person who provides approved English courses; and
(b)
any other matters that are prescribed.
(4)
In this section:

visa commencement date for a person means:

(a)
if the person was in Australia on the day on which the relevant visa came into force—that day; or
(b)
if the person was not in Australia on the day on which the relevant visa came into force—the day that the person first enters Australia after that day.

IMMIGRATION (EDUCATION) ACT 1971
- SECT 5
Provision of teaching and learning materials

The Minister may arrange for the purchase or production of, and the distribution of, teaching and learning materials:

(a)
for use in approved courses; or
(b)
for use in schools (whether or not in an approved course) for:
(i)
teaching the English language; or
(ii)
imparting an understanding of ways of life in Australia and of the rights and duties of an Australian citizen;
to children referred to in subparagraph 4(b)(iv) or (c)(iv).

IMMIGRATION (EDUCATION) ACT 1971
- SECT 7
Training courses for teachers

(1)
The Minister may arrange for the provision of training courses for teachers who are engaged, or intend to engage, in giving approved courses.

(2)
Where a teacher attending a training course referred to in subsection (1) is paid salary by his or her employer for the whole or a part of the period of his or her attendance, the Minister may authorize the payment to the employer of the whole or a part of the cost of the salary so paid.

(3)
In this section:


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employer includes the Government of a State or Territory.

salary includes an allowance in the nature of a travelling allowance.

IMMIGRATION (EDUCATION) ACT 1971
- SECT 8
Research projects

The Minister may arrange for the conduct of research projects designed to improve the form or content of approved courses.

IMMIGRATION (EDUCATION) ACT 1971
- SECT 9
Payments under arrangements etc.

(1)
An arrangement under this Act may make provision for, or in relation to, the making of payments by the Commonwealth to another party to the arrangement in connexion with matters to which the arrangement relates.

(2)
Without limiting the generality of subsection (1), an arrangement under section 4 for the provision of approved courses by the Government of a State or Territory or by the school authority of an independent school may make provision for, or in relation to, the payment by the Commonwealth of the whole or a part of:

(a)
the cost of salaries and fees of teaching staff engaged in the giving of the courses; and
(b)
administrative costs (including the salaries of administrative staff) incurred in connexion with the courses; and
(c)
the cost of capital equipment of an educational nature to be used in the courses; and
(d)
the cost of teaching and learning materials (other than materials provided under section 5) to be used in the courses; and
(e)
the cost of student support services.
(3)
An arrangement under section 4 for the provision of approved courses by the Government of a State or Territory or by the school authority of an independent school may make provision for the Commonwealth to supply, whether as a gift or otherwise, to that Government or school authority capital equipment of an educational nature to be used in the courses.

IMMIGRATION (EDUCATION) ACT 1971
- SECT 9A
Services for non-government organisations

The Minister may arrange to provide language training and related services to or for a non-government organisation or non-government body.

IMMIGRATION (EDUCATION) ACT 1971
- SECT 10
Delegation

(1)
The Minister may, by instrument in writing, delegate to a person appointed or engaged under the Public Service Act 1999, either generally or otherwise as provided in the instrument of delegation, all or any of his powers or functions under this Act, except this power of delegation.

(2)
A power or function so delegated may be exercised or performed by the delegate in accordance with the instrument of delegation.

(3)
A delegation under this section is revocable at will and does not prevent the exercise of a power or the performance of a function by the Minister.

IMMIGRATION (EDUCATION) ACT 1971
- SECT 10A
Delegation

The Secretary may, by signed instrument, delegate any or all of his or her powers under this Act to an officer of the Department.

IMMIGRATION (EDUCATION) ACT 1971
- SECT 11
Expenditure to be made from appropriations

Expenditure by the Commonwealth for the purposes of this Act shall be made out of moneys appropriated by the Parliament for those purposes.


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IMMIGRATION (EDUCATION) ACT 1971
- SECT 12
Annual reports by the Minister

The Minister shall, as soon as practicable after 30th June in each year, cause to be laid before each House of the Parliament a report on the operation of this Act during the year ended on that date, including particulars of expenditure by the Commonwealth for the purposes of this Act during that year.

IMMIGRATION (EDUCATION) ACT 1971
- SECT 13
Regulations

The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to this Act.

IMMIGRATION (EDUCATION) ACT 1971
Notes to the Immigration (Education) Act 1971

Note 1

The Immigration (Education) Act 1971 as shown in this consolidation comprises Act No. 3, 1971 amended as indicated in the Tables below.
All relevant information pertaining to application, saving or transitional provisions prior to 10 April 1997 is not included in this consolidation. For subsequent information see Table A.
The Immigration (Education) Act 1971 was affected by the Migration Legislation Amendment Act (No. 5) 1995 see Table B.

Table of Acts

Act


Number
and year


Date
of Assent


Date of commencement


Application, saving or transitional provisions


Immigration (Education) Act 1971


3, 1971


12 Mar 1971


12 Mar 1971



Immigration (Education) Act 1973


110, 1973


12 Oct 1973


12 Oct 1973



Statute Law Revision Act 1973


216, 1973


19 Dec 1973


31 Dec 1973


Ss. 9(1) and 10


Statute Law (Miscellaneous Provisions) Act (No. 1) 1986


76, 1986


24 June 1986


S. 3: Royal Assent (a)


S. 9


Immigration (Education) Amendment Act 1991


35, 1991


21 Mar 1991


21 Mar 1991



Migration Laws Amendment Act (No. 2) 1992


176, 1992


16 Dec 1992


Ss. 1-3 and 5: 1 Jan 1993
Ss. 4, 6, 7 and Part 3 (ss. 8-11): 1 Mar 1993
Remainder: Royal Assent



Migration Legislation Amendment Act 1994


60, 1994


9 Apr 1994


S. 85: (b)



Migration Legislation Amendment Act (No. 1) 1995


110, 1995


29 Sept 1995


S. 4: 1 Nov 1995 (see Gazette 1995, No. GN43)
Remainder: Royal Assent


S. 9


Migration Legislation Amendment Act (No. 1) 1997


27, 1997


10 Apr 1997


Schedule 1: 1 May 1997 (see Gazette 1997, No. S168)
Remainder: Royal Assent


Sch. 1 (items 29, 30) [see Table A]


Migration Legislation Amendment Act (No. 1) 1998


113, 1998


11 Dec 1998


Schedule 8 (item 1) 1 May 1997 (see Gazette 1997, No. S168) (c)



Public Employment (Consequential and Transitional) Amendment Act 1999


146, 1999


11 Nov 1999


Schedule 1 (item 524): 5 Dec 1999 (see Gazette 1999, No. S584) (d)




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(a) The Immigration (Education) Act 1971 was amended by section 3 only of the Statute Law (Miscellaneous Provisions) Act (No. 1) 1986, subsection 2(1) of which provides as follows:

(1) Subject to this section, this Act shall come into operation on the day on which it receives the Royal Assent.

(b) The Immigration (Education) Act 1971 was amended by section 85 only of the Migration Legislation Amendment Act 1994, subsection 2(3) of which provides as follows:

(3) The remaining provisions of this Act commence immediately after the commencement of section 3 of the Migration Reform Act 1992.

Section 3 commenced on 1 September 1994.
(c) The Immigration (Education) Act 1971 was amended by Schedule 8 (item 1) only of the Migration Legislation Amendment Act (No. 1) 1998, subsection 2(4) of which provides as follows:

(4) Item 1 of Schedule 8 is taken to have commenced immediately after the commencement of Schedule 1 to the Migration Legislation Amendment Act (No. 1) 1997.

(d) The Immigration (Education) Act 1971 was amended by Schedule 1 (item 524) only of the Migration Legislation Amendment Act (No. 1) 1998, subsections 2(1) and (2) of which provide as follows:

(1) In this Act, commencing time means the time when the Public Service Act 1999 commences.
(2) Subject to this section, this Act commences at the commencing time.

Table of Amendments

ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted


Provision affected


How affected


S. 3


am. No. 110, 1973; No. 76, 1986; No. 35, 1991; No. 176, 1992; No. 60, 1994; No. 27, 1997


S. 4


am. No. 76, 1986



rs. No. 35, 1991



am. No. 60, 1994


S. 4A


ad. No. 176, 1992



am. No. 110, 1995


S. 4B


ad. No. 176, 1992



am. No. 27, 1997; No. 113, 1998


Ss. 4C, 4D


ad. No. 176, 1992



am. No. 27, 1997


Ss. 4E, 4F


ad. No. 176, 1992



rep. No. 27, 1997


S. 5


am. No. 76, 1986; No. 35, 1991


S. 6


rep. No. 35, 1991


S. 7


am. No. 76, 1986; No. 35, 1991


S. 8


am. No. 110, 1973; No. 35, 1991


S. 9


am. No. 110, 1973; No. 76, 1986; No. 35, 1991


S. 9A


ad. No. 35, 1991


S. 10


am. No. 146, 1999


S. 10A


ad. No. 176, 1992


S. 12


am. Nos. 110 and 216, 1973


Table A

Application, saving or transitional provisions

Migration Legislation Amendment Act (No. 1) 1997 (No. 27, 1997)

Schedule 1—Amendments related to visa application charge

Part 2—Application and transitional

29 Application

(1) The amendment made by item 13 of this Schedule applies in relation to applications whether made before, at or after the commencement of this item.
(2) The remaining amendments of the Immigration (Education) Act 1971 and the Migration Act 1958 made by this Schedule apply in relation to applications for visas made at or after the commencement of the Migration (Visa Application) Charge Act 1997.

Note: Under item 30, some applications that are made before the commencement of the Migration (Visa Application) Charge Act 1997 are taken to be made immediately after that time.

30 Transitional

If:

(a)
an application for a visa is made before the commencement of the Migration (Visa Application) Charge Act 1997; and
(b)
a visa application fee, or part of a visa application fee, payable under the Migration Act 1958 in respect of the application has not been paid at that time;

then, for the purposes of the Immigration (Education) Act 1971, the Migration (Health Services) Charge Act 1991 and sections 45A, 45B and 45C of the Migration Act 1958, the application is taken to have been made immediately after the commencement of the Migration (Visa Application) Charge Act 1997.

Table B

Affected by another Act

Migration Legislation Amendment Act (No. 5) 1995 (No. 100, 1995)

Schedule 1

1 Certain persons not entitled to tuition

(1) Despite section 4C of the Immigration (Education) Act 1971, the Commonwealth is not obliged to provide, or arrange for the provision of, any tuition in an approved English course to a person if the person was granted a visa, whether or not after the commencement of this item, because the person satisfied paragraph 816.721(1)(a) or 818.721(1)(a) of the Migration (1993) Regulations.
(2) If, immediately before the commencement of this item, the Commonwealth had an obligation under that Act to a person covered by subitem (1), that obligation ceases at the commencement of this item.

Schedule 1 (item 1) commenced on 15 September 1995.