Federal Register of Legislation - Australian Government

Primary content

A Bill for an Act to amend the law relating to migration and education services for overseas students, and for related purposes
Administered by: Immigration and Citizenship
General Comments: Attachment A - Regulation Impact Statement Attachment B - Statement of Compatability with Human Rights
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Registered 23 Mar 2012
Introduced HR 22 Mar 2012

ATTACHMENT B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Migration Legislation Amendment (Student Visas) Bill 2012

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (the Human Rights Act).

Overview of the Bill

The Migration Legislation Amendment (Student Visas) Bill 2012 (“the Bill”) amends the Migration Act 1958 (“the Migration Act”) and the Education Services for Overseas Students Act 2000 (“the ESOS Act”) to implement recommendation 24 of the independent Strategic Review of the Student Visa Program, conducted by the Hon. Michael Knight AO (the “Knight Review”). 

 

Recommendation 24 of the Knight Review, accepted by the Government on 22 September 2011, recommends the abolishment of the automatic cancellation of student visas and for the regime to be replaced by a system in which information conveyed by student course variations is used as an input into more targeted and strategic analysis of non-compliance.   

 

The amendments in this Bill give effect to the Government’s policy to abolish the automatic cancellation of student visa regime, for unsatisfactory course attendance and course process, through amendments to the ESOS Act. 

 

In particular, the Bill amends the ESOS Act to:

·         insert a definition of “contact details” of a person who becomes or is an accepted student;

 

·         require a registered provider to give particulars of any change in the contact details or other prescribed details of an accepted student within 14 days after the provider becomes aware of the change; and

 

·         amend section 20 of the ESOS Act to prevent a registered provider from being able to send a notice under this section to a student who breaches a prescribed condition of their student visa.

The Bill also amends the Migration Act to insert a note which cross references the amendment to section 20 of the ESOS Act.                                                     

Human rights implications

The amendment to section 20 of the ESOS Act does not raise human rights issues. This amendment will prevent a registered provider from sending a notice under this section to a student who breaches a prescribed condition of their student visa. This will cease the automatic cancellation of student visas under section 137J of the Migration Act. Instead, the Department of Immigration and Citizenship (DIAC) will individually assess reports of non-compliance and will have to exercise their discretion to decide whether to cancel or not. This is more fair and reasonable for clients and will not be incompatible with the Human Rights Act.

The proposed amendments to section 19 of the ESOS Act will require a registered provider to provide updated student contact information to the Department of Industry, Innovation, Science, Research and Tertiary Education (DIISRTE) through the Provider Registration and International Student Management System (PRISMS). The obligation on the registered provider to provide any subsequent changes to contact details raises the right to privacy, which can be found in Article 17.1 of the International Covenant on Civil and Political Rights.

Article 17.1 provides that:

No one shall be subjected to arbitrary or unlawful interference with his privacy, family, or correspondence, nor to unlawful attacks on his honour or reputation.

The extent to which an individual is entitled to a right to privacy in Australia is governed by the Privacy Act 1988 (Cth) (the Privacy Act). Section 14 of the Act outlines the Information Privacy Principles which assist Government departments to ensure the lawful collection, solicitation, storage, record keeping, access, use and disclosure of personal information.

The proposed amendments to section 19 of the ESOS Act will comply with the requirements of section 14 of the Privacy Act. The requirement on registered providers to provide updated student contact information is necessary and within the reasonable and proportionate means to achieve the objectives of the Bill:

  • to maximise the likelihood of the students receiving an important notice affecting their immigration status; and
  • to assist in the conduct of any subsequent immigration compliance activity.

Conclusion

The Bill is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

 

The Hon. Chris Bowen MP, Minister for Immigration and Citizenship