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A Bill for an Act to amend the Ombudsman Act 1976 to establish the Education Ombudsman, and for related purposes
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Registered 01 Oct 2010
Introduced Senate 29 Sep 2010

2010

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

Presented and read a first time

 

 

 

 

 

 

Ombudsman Amendment (Education Ombudsman) Bill 2010

 

No.      , 2010

 

(Senator Hanson‑Young)

 

 

 

A Bill for an Act to amend the Ombudsman Act 1976 to establish the Education Ombudsman, and for related purposes

  

  


Contents

1............ Short title............................................................................................ 1

2............ Commencement.................................................................................. 1

3............ Object of Act...................................................................................... 2

4............ Schedule(s).......................................................................................... 2

Schedule 1—Amendments relating to the Education Ombudsman             3

Part 1—Amendment of the Ombudsman Act 1976                                            3

Part 2—Amendment of other Acts                                                                           21

Migration Act 1958                                                                                                   21

Privacy Act 1988                                                                                                       21

 


A Bill for an Act to amend the Ombudsman Act 1976 to establish the Education Ombudsman, and for related purposes

The Parliament of Australia enacts:

1  Short title

                   This Act may be cited as the Ombudsman Amendment (Education Ombudsman) Act 2010.

2  Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

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.  Schedule 1

On the day after the end of the period of 6 months beginning on the day on which this Act receives the Royal Assent.

 

Note:          This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

             (2)  Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

3  Object of Act

                   The object of this Act is to safeguard the quality of and access to higher education for all students and education for overseas students in Australia by establishing the office of Education Ombudsman.

4  Schedule(s)

                   Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.


 

Schedule 1Amendments relating to the Education Ombudsman

Part 1Amendment of the Ombudsman Act 1976

1  Title

After “Defence Force Ombudsman”, insert “, an Education Ombudsman”.

2  Subsection 3(1)

Insert:

Course, for the purposes of Part IIAA, means a course of education or training.

3  Subsection 3(1)

Insert:

education provider means:

                     (a)  a higher education provider; or

                     (b)  a registered provider; or

                     (c)  any other provider of a course that the Minister administering the Education Services for Overseas Students Act 2000 determines is an education provider for the purposes of this Act.

4  Subsection 3(1)

Insert:

higher education provider has the same meaning as in the Higher Education Support Act 2003.

5  Subsection 3(1) (at the end of the definition of officer)

Add:

Note 2:       For the meaning of officer for the purposes of Part IIAA, see section 19FA.

6  Subsection 3(1) (at the end of the definition of principal officer)

Add:

Note:          For the meaning of principal officer for the purposes of Part IIAA, see section 19FA.

7  Subsection 3(1)

Insert:

registered provider has the same meaning as in the Education Services for Overseas Students Act 2000.

8  After subsection 3(6D)

Insert:

           (6E)  For the purposes of this Act, action that is taken by an officer of an education provider is taken to have been taken by the education provider if the officer takes, or purports to take, the action because he or she is an officer of the education provider, whether or not:

                     (a)  the action is taken for or in connection with, or as incidental to, the provision of a course by the education provider; or

                     (b)  the taking of the action is within the duties of the officer.

9  After Part IIA

Insert:

Part IIAAEstablishment, functions, powers and duties of the Education Ombudsman

  

Division 1Preliminary

19FA  Definitions

                   In this Part:

officer, in relation to an education provider, means:

                     (a)  if an education provider is an individual—the individual or an employee of the individual; or

                     (b)  if an education provider is a body corporate—a director, the secretary or an employee of the education provider; or

                     (c)  if an education provider is a partnership—a partner in, or an employee of, the partnership.

principal officer, in relation to an education provider,  means:

                     (a)  if an education provider is an individual—the individual; or

                     (b)  in any other case—the individual primarily responsible for the management of the education provider.

19FB  Continued application of this Act in certain circumstances

             (1)  This section applies if:

                     (a)  an education provider took action at a particular time; and

                     (b)  the Education Ombudsman receives a complaint in respect of that action within 12 months after that time; and

                     (c)  after that time, the education provider ceases to be an education provider for the purposes of this Part.

             (2)  This Act applies as if the education provider continued to be an education provider in relation to that complaint.

19FC  Part IIAA not to affect operation of other provisions of this Act

                   This Part does not, by implication, affect the operation of other provisions in this Act.

Division 2Establishment and functions of the Education Ombudsman

19FD  Establishment of office of Education Ombudsman

             (1)  The office of Education Ombudsman is established by this section.

             (2)  The office of Education Ombudsman is to be held by the person who holds the office of Commonwealth Ombudsman.

             (3)  The reference in subsection (2) to the person who holds the office of Commonwealth Ombudsman includes a reference to a person for the time being acting in that office by virtue of an appointment under section 29.

19FE  Functions of Education Ombudsman

             (1)  The functions of the Education Ombudsman are to investigate complaints made to him or her under this Act and to perform such other functions as are conferred on him or her by:

                     (a)  this Act or the regulations; or

                     (b)  another Act or regulations made under another Act.

             (2)  Subject to this Act, the Education Ombudsman:

                     (a)  is to investigate action that he or she is authorised by this Act to investigate and in respect of which a complaint has been made to him or her; and

                     (b)  may, on his or her own initiative, investigate action that he or she is authorised by this Act to investigate.

             (3)  Subject to subsection (6), the Education Ombudsman is authorised by this Act:

                     (a)  to investigate action taken either before or after the commencement of this Part by an education provider:

                              (i)  with respect to the provision of a course; or

                             (ii)  that is related to the provision of a course; or

                            (iii)  that arises in consequence of the provision of a course;

                     (b)  to investigate action that relates to the administration, service delivery functions or regulatory functions of a Department or a prescribed authority in relation to courses, taken either before or after the commencement of this Part by the Department or the prescribed authority, and in respect of which a complaint has been made to the Education Ombudsman; and

                     (c)  to carry out compliance audits of the exercise of the regulatory and investigative functions of a Department or a prescribed authority in relation to courses; and

                     (d)  to provide advice and training to education providers, Departments and prescribed authorities on, and to facilitate continuous improvement in, best practice complaints handling; and

                     (e)  to conduct, on his or her own initiative, agency specific and cross‑agency investigations into areas of complaint, particularly if there appear to be systemic problems.

             (4)  A complaint is excluded by this subsection if the complaint is made more than 12 months after the action was taken.

             (5)  Paragraph (2)(b) applies only if the Education Ombudsman starts the investigation no later than 12 months after the action was taken.

             (6)  The Education Ombudsman is not authorised by this Act to investigate action taken by a Minister.

             (7)  The reference in subsection (6) to action taken by a Minister does not include a reference to action taken by a delegate of a Minister, and, for the purposes of this subsection, action will be deemed to have been taken by such a delegate notwithstanding that the action is taken under a power that is deemed by a provision of an enactment, when exercised by the delegate, to have been exercised by the Minister.

             (8)  For the purposes of the application of this Act to or in relation to the Education Ombudsman, action taken by a Department or a prescribed authority is not to be regarded as having been taken by a Minister only because the action was taken by the Department or the prescribed authority in relation to action that has been, is proposed to be, or may be, taken by a Minister personally.

19FF  Discretion to investigate complaints as Commonwealth Ombudsman or as Education Ombudsman

             (1)  This section applies if a complaint has been made to the Education Ombudsman or the Commonwealth Ombudsman.

Education Ombudsman may transfer complaint to Commonwealth Ombudsman

             (2)  Subsection (3) applies if:

                     (a)  the complaint was made to the Education Ombudsman; and

                     (b)  in the opinion of the Education Ombudsman, it would be more appropriate to deal with, or to continue to deal with, the complaint or part of the complaint in his or her capacity as the Commonwealth Ombudsman.

             (3)  The Education Ombudsman may:

                     (a)  either:

                              (i)  decide not to deal with the complaint, or part of the complaint; or

                             (ii)  if he or she has started to deal with the complaint—decide not to deal further with the complaint, or part of the complaint; and

                     (b)  transfer the complaint, or part of the complaint, to the Commonwealth Ombudsman.

             (4)  A complaint that is transferred under subsection (3) is taken to be a complaint that was made to the Commonwealth Ombudsman.

Commonwealth Ombudsman may transfer complaint to Education Ombudsman

             (5)  Subsection (6) applies if:

                     (a)  the complaint was made to the Commonwealth Ombudsman; and

                     (b)  the complaint was made no later than 12 months after the action was taken; and

                     (c)  in the opinion of the Commonwealth Ombudsman, it would be more appropriate to deal with, or to continue to deal with, the complaint or part of the complaint in his or her capacity as the Education Ombudsman.

             (6)  The Commonwealth Ombudsman may:

                     (a)  either:

                              (i)  decide not to deal with the complaint, or part of the complaint; or

                             (ii)  if he or she has started to deal with the complaint—decide not to deal further with the complaint, or part of the complaint; and

                     (b)  transfer the complaint, or part of the complaint, to the Education Ombudsman.

             (7)  A complaint that is transferred under subsection (6) is taken to be a complaint that was made to the Education Ombudsman.

             (8)  In forming an opinion under paragraph (2)(b) or (5)(c), the person holding the office of the Commonwealth Ombudsman and of the Education Ombudsman must have regard to the functions and duties of each of those offices.

Notice of transferral to be given to complainant

             (9)  If the Commonwealth Ombudsman or the Education Ombudsman transfers a complaint, or part of a complaint, he or she must give notice of the transfer, in writing, to the complainant.

19FG  Discretion to transfer complaint

             (1)  If:

                     (a)  the Education Ombudsman forms the opinion that:

                              (i)  a complaint that was made to him or her could have been made to another authority established under a law of the Commonwealth, a State or a Territory; and

                             (ii)  the complaint could be more conveniently or effectively dealt with by the other authority; and

                     (b)  the other authority can deal with the complaint if the Education Ombudsman transfers the complaint to the other authority;

the Education Ombudsman may decide not to investigate the complaint, or not to investigate the complaint further, as the case may be, and to transfer the complaint to the other authority.

             (2)  If the Education Ombudsman decides to transfer the complaint, the Education Ombudsman must:

                     (a)  do so as soon as is reasonably practicable; and

                     (b)  give to the other authority any information or documents that relate to the complaint and that are in the possession or under the control of the Education Ombudsman; and

                     (c)  as soon as is reasonably practicable, give the complainant written notice of the transfer.

19FH  Discretion not to investigate certain complaints

             (1)  This section applies if:

                     (a)  a complaint has been made to the Education Ombudsman; and

                     (b)  in the opinion of the Education Ombudsman:

                              (i)  the complaint is frivolous or vexatious or was not made in good faith; or

                             (ii)  the complainant does not have a sufficient interest in the subject matter of the complaint; or

                            (iii)  an investigation, or further investigation, of the action is not warranted having regard to all the circumstances.

             (2)  The Education Ombudsman may, in his or her discretion:

                     (a)  decide not to investigate the action; or

                     (b)  if he or she has started to investigate the action—decide not to investigate the action further.

Division 3Powers and duties of the Education Ombudsman

19FI  Application of other provisions of this Act to the Education Ombudsman

             (1)  Subject to this section, the provisions covered by subsection (3) apply in relation to the Education Ombudsman.

             (2)  Unless the contrary intention appears, the provisions covered by subsection (3) apply as if:

                     (a)  a reference in any of those provisions to the Ombudsman were a reference to the Education Ombudsman; and

                     (b)  a reference in any of those provisions to any of the following included a reference to an education provider:

                              (i)  a Department;

                             (ii)  a prescribed authority;

                            (iii)  a Department or a prescribed authority; and

                     (c)  a reference in any of those provisions to an officer included a reference to an officer within the meaning of this Part; and

                     (d)  a reference in any of those provisions to a principal officer included a reference to a principal officer within the meaning of this Part.

             (3)  The provisions covered by this subsection are:

                     (a)  Part I, other than the following provisions:

                              (i)  subsections 3(2) to (6);

                             (ii)  subsections 3(6A) to (6D);

                            (iii)  subsections 3(7A) and (7B);

                            (iv)  subsections 3(9) to (18);

                             (v)  sections 3A and 3BA; and

                     (b)  Part II, other than the following provisions:

                              (i)  sections 4 and 5;

                             (ii)  subsection 6(1);

                            (iii)  subsections 6(4D) to (4H);

                            (iv)  subsections 6(6) to (8);

                             (v)  subsection 6(12);

                            (vi)  subsections (16) to (21);

                           (vii)  sections 6A and 6B;

                           (viii)  subsections 8(6) and (7);

                            (ix)  subsections 8(10) to (12);

                             (x)  sections 8A to 8D;

                            (xi)  paragraphs 9(1AA)(ab) and (ac);

                           (xii)  paragraphs 9(3)(e) and (f);

                           (xiii)  sections 10A to 12;

                          (xiv)  sections 14 to 17; and

                     (c)  subsection 31(1); and

                     (d)  Part IV, other than the following provisions:

                              (i)  section 34;

                             (ii)  subsection 35(3);

                            (iii)  subsections 35(7) and (7A);

                            (iv)  section 35AA;

                             (v)  subsections 35A(3A) to (3E);

                            (vi)  sections 35B and 35C.

             (4)  Each provision of this Act specified in column 1 of the table applies in relation to the Education Ombudsman in accordance with the table:

 

Application of Act to Education Ombudsman

 

Column 1

Column 2

Column 3

Item

This provision of this Act...

applies in relation to the Education Ombudsman as if a reference in that provision to...

were a reference to...

1

subsection 6(12)

the Ombudsman (twice occurring)

the Education Ombudsman

2

subsection 7A(1)

paragraph 5(1)(b)

paragraph 19FE(2)(b)

3

subsection 8(11)

the Ombudsman (wherever occurring)

the Education Ombudsman

4

subsections 8A(1) and (4)

The Commonwealth Ombudsman

The Education Ombudsman

5

subsection 8A(2)

subsection (1) or (1B)

subsection (1)

6

subsection 8A(3)

subsection (1) or (1A)

subsection (1)

7

subsections 8A(6) and (7)

the Ombudsman (wherever occurring)

the Education Ombudsman

8

subsection 8A(8)

Subsection (1) or (1A)

Subsection (1)

9

subsection 8A(8)

the Ombudsman (first and fourth occurring)

the Education Ombudsman

10

sections 10A to 12

Ombudsman (wherever occurring)

Education Ombudsman

11

subsection 11A(4)

the Minister

the Minister and any other Minister concerned in the matter

12

subsections 12(1) and (3)

by a Department or by a prescribed authority

by a Department, a prescribed authority or an education provider

13

subsection 12(1)

the Department or authority (second occurring)

the Department, authority or education provider

14

subsections 12(3) and (5)

the Department or authority

the Department, authority or education provider

15

subsections 12(4) and (5)

section 15

section 19FM

16

subsection 12 (5)

a Department or prescribed authority

a Department, prescribed authority or education provider

17

section 18

section 17

section 19FN

18

subsection 19(2)

sections 15, 16 and 17

sections 19FM and 19FN

19

subsection 35(6A)

paragraph 6(4A)(e) or (4D)(e) or paragraph 6(18)(d)

paragraph 6(4A)(e) or 19FG(2)(b)

20

subsections 35(7) and (7A)

the Ombudsman (first and third occurring)

the Education Ombudsman

21

subsection 35B(2) (paragraph (a) of the definition of listed disclosure method)

Division 2 of Part II

section 19FM, 19FN or 19FO

22

subsection 35B(2) (paragraph (b) of the definition of listed disclosure method)

section 6 or 6A

section 19FF or 19FG

23

subsection 35C(2) (paragraph (a) of the definition of listed disclosure method)

Division 2 of Part 2

section 19FM, 19FN or 19FO

24

subsection 35C(2) (paragraph (b) of the definition of listed disclosure method)

section 6 or 6A

section 19FF or 19FG

 

19FJ  Powers of the Education Ombudsman under section 9

                   The Education Ombudsman may exercise his or her powers under section 9 for any of the following purposes:

                     (a)  to determine whether he or she may investigate action under this Part;

                     (b)  to decide whether or not to investigate action, or to investigate action further, under this Part;

                     (c)  to start or further the conduct of an investigation under this Part;

                     (d)  to prepare a report in relation to an investigation under this Part;

                     (e)  if he or she has exercised a power for any of the purposes mentioned in paragraphs (a) to (d)—to ascertain what action has been taken by the person, the Department, the prescribed authority or the education provider, as the case may be, following the exercise of that power.

19FK  Duty to accord procedural fairness

                   The Education Ombudsman must comply with the rules of procedural fairness when exercising a power under this Act.

Example 1: If the Education Ombudsman sets out a critical opinion of a person in a report under section 19FM, he or she must give that person an opportunity to appear and make submissions to him or her (see subsection 8(5)).

Example 2: The Education Ombudsman must accord procedural fairness to a person if he or she sets out a critical opinion of the person:

(a)    in disclosing information, or making a statement, under subsection 35A(1); or

(b)    in referring to an investigation in a report under section 19FO.

19FL  Disclosure of identifying information

                   The Education Ombudsman must not, in referring to an investigation in a report under section 19FM or 19FO, disclose the name of a complainant or any other matter that would enable a complainant to be identified, unless it is fair and reasonable in all the circumstances to do so.

19FM  Education Ombudsman may report to Department, prescribed authority or education provider

             (1)  This section applies if:

                     (a)  an investigation under this Act into action taken by a Department, a prescribed authority or an education provider (the investigated body) has been completed; and

                     (b)  the Education Ombudsman is of the opinion that the action taken:

                              (i)  appears to have been contrary to law; or

                             (ii)  was unreasonable, unjust, oppressive or improperly discriminatory; or

                            (iii)  was otherwise, in all the circumstances, wrong; and

                     (c)  the Education Ombudsman is of the opinion that:

                              (i)  some particular action could be, and should be, taken to rectify, mitigate or alter the effects of the action taken; or

                             (ii)  a policy or practice on which the action taken was based should be altered; or

                            (iii)  reasons should have been, but were not, given for the action taken; or

                            (iv)  any other thing should be done in relation to the action taken.

             (2)  The Education Ombudsman must report accordingly to the investigated body.

             (3)  The Education Ombudsman:

                     (a)  must include in the report his or her reasons for the opinions specified in the report; and

                     (b)  may also include in the report any recommendations he or she thinks fit to make.

             (4)  The Education Ombudsman may ask the investigated body to give him or her, within a specified time, particulars of any action that the investigated body proposes to take with respect to the matters and recommendations included in the report.

             (5)  The investigated body may give the Education Ombudsman comments about the report.

             (6)  The Education Ombudsman must give a copy of:

                     (a)  the report; and

                     (b)  any comments given under subsection (5);

to:

                     (c)  in the case of Department or prescribed authority—the Minister administering the Department or prescribed authority; or

                     (d)  in the case of an education provider that is a higher education provider—the Minister administering the Higher Education Support Act 2003; or

                     (e)  in the case of any other education provider—the Minister administering the Education Services for Overseas Students Act 2000.

19FN  Minister to table certain reports in Parliament

             (1)  This section applies if:

                     (a)  the Education Ombudsman has given a report under section 19FM to an investigated body; and

                     (b)  action that is, in the opinion of the Education Ombudsman, adequate and appropriate in the circumstances is not taken with respect to the matters and recommendations included in the report within a reasonable time after the report was given to the investigated body.

             (2)  The Education Ombudsman may request the Minister administering the Education Services for Overseas Students Act 2000 to cause copies of the report to be laid before each House of the Parliament.

             (3)  If the Education Ombudsman makes a request under subsection (2), the Minister administering the Education Services for Overseas Students Act 2000 must cause copies of:

                     (a)  the report; and

                     (b)  any comments given under subsection 19FM(5) before the request was made;

to be laid before each House of the Parliament within 15 sitting days of that House after that Minister receives the request.

19FO  Annual reports

             (1)  The Education Ombudsman has the same powers and duties under this section as the Ombudsman has under subsections 19(1) to (7B) with respect to the submission of reports relating to:

                     (a)  his or her operations; and

                     (b)  the exercise of his or her powers and the performance of his or her functions.

             (2)  For the purposes of subsection (1), the powers and duties of the Ombudsman do not include his or her powers and duties with respect to reports relating to the Australian Capital Territory.

             (3)  A report relating to the operations of the Education Ombudsman during a year may be included in a report under section 19 relating to the operations of the Ombudsman during that year.

             (4)  A report relating to the operations of the Education Ombudsman during a year must:

                     (a)  identify the number of complaints received by the Education Ombudsman under this Part during that year; and

                     (b)  if the Education Ombudsman has investigated action under paragraph 19FE(2)(a)—identify:

                              (i)  the number of such investigations started during that year; and

                             (ii)  the number of such investigations completed during that year; and

                     (c)  if the Education Ombudsman has investigated action under paragraph 19FE(2)(b)—identify:

                              (i)  the number of such investigations started during that year; and

                             (ii)  the number of such investigations completed during that year; and

                     (d)  include details of the circumstances and number of occasions where the Education Ombudsman has made a requirement of a person under section 9 (as that section applies because of sections 19FI and 19FJ) during that year; and

                     (e)  include details of the circumstances and number of occasions where the holder of the office of Education Ombudsman has decided under subsection 19FF(3) to deal with, or to continue to deal with, a complaint or part of a complaint in his or her capacity as the holder of the office of Commonwealth Ombudsman during that year; and

                      (f)  include details of the circumstances and number of occasions where the holder of the office of Education Ombudsman has decided under subsection 19FG(1) to not investigate a complaint, or to not investigate a complaint further, and to transfer the complaint to the another authority, including the name of the other authority; and

                     (g)  include details of recommendations made during that year in reports under section 19FM; and

                     (h)  include statistical information about actions taken during that year as a result of such recommendations.

19FP  Education Ombudsman may notify Minister or employer of misconduct

             (1)  This section applies if the Education Ombudsman becomes of the opinion, either before or after completing an investigation under this Act, that there is evidence that a person who is an officer of an education provider has engaged in misconduct.

             (2)  If the Education Ombudsman is of the opinion that the evidence is, in all the circumstances, of sufficient force to justify his or her doing so, the Education Ombudsman may bring the evidence to the notice of:

                     (a)  if the person is the principal officer of an education provider—the Minister administering the Education Services for Overseas Students Act 2000; or

                     (b)  if the person is an officer of an education provider but not the principal officer of the education provider—the principal officer of the education provider.

19FQ  Limitation on liability where information or documents provided in good faith or when required to do so

             (1)  A person is neither liable to a proceeding, nor subject to a liability, under an enactment merely because the person, in good faith and in relation to the Education Ombudsman’s functions or powers:

                     (a)  gives information to the Education Ombudsman (other than in accordance with a requirement under section 9 as that section applies because of sections 19FI and 19FJ); or

                     (b)  gives a document or other record to the Education Ombudsman (other than in accordance with a requirement under section 9 as that section applies because of sections 19FI and 19FJ).

Note:          For information, documents or other records given in accordance with a requirement under section 9, see subsections 9(4) and (5).

             (2)  To avoid doubt, subsection (1) does not prevent the person from being liable to a proceeding, or being subject to a liability, for conduct of the person that is revealed by the information, document or record given to the Education Ombudsman.

             (3)  This section does not limit section 37.

Division 4Fees for investigations

19FR  Fees for investigations

             (1)  The Education Ombudsman may, on behalf of the Commonwealth, charge an education provider fees in relation to an investigation:

                     (a)  that was conducted under paragraph 19FE(2)(a), into action taken by the education provider; and

                     (b)  that has been completed.

Note:          In certain circumstances, an education provider that ceases to be an education provider for the purposes of this Part may still be treated as an education provider (see section 19FB).

             (2)  The amount of a fee:

                     (a)  must not be more than the amount that, in the opinion of the Education Ombudsman, represents the costs incurred by the Education Ombudsman in conducting the investigation; and

                     (b)  must not be such as to amount to taxation.

             (3)  The Minister administering the Education Services for Overseas Students Act 2000 may make a written determination specifying the total amount of fees that may be charged under this section in relation to investigations that the Education Ombudsman completed during a specified financial year.

             (4)  A determination made under subsection (3) is not a legislative instrument for the purposes of the Legislative Instruments Act 2003.

             (5)  If a determination has been made under subsection (3) for a financial year, the total amount of fees charged under this section in relation to investigations that the Education Ombudsman completed during that financial year must not exceed the amount specified in the determination.

             (6)  The regulations may:

                     (a)  prescribe one or more methods to be used in working out the amount of a fee; and

                     (b)  prescribe the time by which a fee is due and payable.

             (7)  A fee is payable to the Secretary on behalf of the Commonwealth.

             (8)  The Secretary must, as soon as practicable, bank any amount received under subsection (7) in an official account within the meaning of the Financial Management and Accountability Act 1997.

             (9)  A fee:

                     (a)  is a debt due to the Commonwealth; and

                     (b)  is recoverable by the Secretary, on behalf of the Commonwealth, in a court of competent jurisdiction.

           (10)  In this section:

Secretary means the Secretary of the Department responsible for administering the Education Services for Overseas Students Act 2000.

10  After subsection 34(2A)

Insert:

          (2B)  The Education Ombudsman may, either generally or as otherwise provided by the instrument of delegation, by instrument in writing, delegate to a person all or any of his or her powers under this Act, other than his or her powers under sections 19FM and 19FN and his or her powers referred to in section 19FO.

11  Subsections 34(3) and (4)

Omit “or (2A)”, substitute “, (2A) or (2B)”.

12  Subsections 34(3) and (4)

Omit “or Postal Industry Ombudsman”, substitute “, Postal Industry Ombudsman or Education Ombudsman”.


 

Part 2Amendment of other Acts

Migration Act 1958

13  Paragraph 193(3)(c)

Omit “the person.”, substitute “the person; and”.

14  At the end of subsection 193(3)

Add:

                     (d)  a person covered by subsection (1) has not made a complaint to the Education Ombudsman, paragraph 7(3)(b) of the Ombudsman Act 1976 (as that paragraph applies because of section 19FI of that Act) does not apply to the person.

Privacy Act 1988

15  At the end of paragraph 50(2)(a)

Add:

                            (iv)  to the Education Ombudsman under the Ombudsman Act 1976; or

16  Subsection 50(2)

Omit “the Human Rights and Equal Opportunity Commission, the Ombudsman, the Postal Industry Ombudsman or the Public Service Commissioner” (wherever occurring), substitute “the Human Rights and Equal Opportunity Commission, the Ombudsman, the Postal Industry Ombudsman, the Education Ombudsman or the Public Service Commissioner”.

17  At the end of paragraph 50(3)(a)

Add:

                            (iv)  to the Education Ombudsman under the Ombudsman Act 1976; or