Federal Register of Legislation - Australian Government

Primary content

Determinations/Other as made
This instrument is to determine the designated authority in relation to an education provider registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) who is providing or seeking to provide an English Language Intensive Course for Overseas Students (ELICOS) or Foundation Program, to the extent that the provider is delivering the course in certain situations.
Administered by: Education and Training
Registered 27 Jun 2012
Tabling HistoryDate
Tabled HR28-Jun-2012
Tabled Senate29-Jun-2012
Date of repeal 01 Jul 2016
Repealed by Education Services for Overseas Students (ESOS Agency—ELICOS and Foundation Programs) Determination 2016

EXPLANATORY STATEMENT

 

Education Services for Overseas Students (Designated Authority) Determination 2012 (No. 1)

 

 

 

Summary

 

The Education Services for Overseas Students (Designated Authority) Determination 2012 (No. 1) (the Revised Determination) is made by the Minister for Tertiary Education, Skills, Science and Research pursuant to subsection 7A (1) of the Education Services for Overseas Students Act 2000 (the ESOS Act).

 

The purpose of the Revised Determination is to revoke and replace the determination titled ‘Education Services for Overseas Students (Designated Authority) Determination 2011 (No. 2)’ (the Previous Determination).

 

Authority

 

Subsection 7A (1) item 3 of the definition of designated authority of the ESOS Act provides that the designated authority in relation to a provider means, to the extent that the provider provides an English Language Intensive Course for Overseas Students (ELICOS), a Foundation program or both, the entity determined by the Minister by legislative instrument.

 

Purpose and operation

 

The purpose of the Revised Determination is to determine the designated authority in relation to a provider, in those situations where the provider provides an ELICOS, a Foundation program, or both. To avoid any doubt, the designated authority determined for a provider in the Revised Determination applies to the provider only to the degree that the provider provides an ELICOS, a Foundation program or both. The designated authority for that provider for all other circumstances is prescribed at the table in subsection 7A (1) of the ESOS Act.

 

The Revised Determination specifies the circumstances in which this designated authority will be the body (‘ASQA’) established by section 155 of the National Vocational Education and Training Regulator Act 2011 (the NVETR Act’), or the body (‘TEQSA’) established section 132 of the Tertiary Education Quality and Standards Agency Act 2011 or when the designated authority will be the person responsible under the law of the relevant State for approving providers to provide courses to overseas students for that State.

 

The Previous Determination provided that the designated authority for providers of ELICOS or Foundation programs was ASQA in all cases in a referring State, non-referring State, or a Territory (as those terms are used in the NVETR Act), unless the program is being provided by the provider in its capacity as a school. The designated authority in relation to a provider for an ELICOS or Foundation program in all other cases under the Previous Determination is the person responsible under the law of the State for approving providers to provide courses to overseas students for the State.

 

 

 

In the interests of national consistency streamlined regulation, this Revised Determination provides that from 1 July 2012 the following arrangements would apply:

 

  • ASQA will take over as designated authority for providers of ELICOS programs in all states and territories except where a provider delivers the program:
    • in the capacity of a school; or
    • in the capacity of a higher education provider; or
    • under an entry arrangement with a higher education provider pursuant to which an overseas student who completes an ELICOS program with the provider meets the minimum English proficiency requirements for entry with the higher education provider to study a higher education course or Foundation program (Entry Arrangement).

 

  • TEQSA will take over as designated authority for:
    • all Foundation programs, except where delivered by a school;
    • all ELICOS delivered by a higher education provider; and
    • all providers delivering ELICOS programs under an Entry Arrangement with a higher education provider.

 

  • The person responsible under the law of the State for approving providers to provide courses to overseas students at locations in the State will be the designated authority for ELICOS and foundation programs provided in the capacity of a school.

 

Consultation

 

The Department of Industry, Innovation, Science Research and Tertiary Education (DIISRTE) has consulted with ASQA and TEQSA regarding the Revised Determination, and with key peak bodies, including the Independent Schools Council of Australia (ISCA) and English Australia (EA), and with the NSW Board of Studies in respect of the original determination.

 

Regulation Impact Statement

 

The Revised Determination gives effect to policy decisions flowing from enactment of the NVETR and TEQSA Acts and the amendment to the definition of designated authority in the National Vocational Education and Training Regulation (Consequential Amendments) Act 2011 and the  Tertiary Education Quality and Standards Agency (Consequential Amendments and Transitional Provisions) Bill 2011. Accordingly, no separate Regulatory Impact Statement (RIS) has been undertaken for the Revised Determination.

 

 

 

 

 

 

 

 

 

 

 

 

 

Statement of Compatibility with Human Rights

 

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

 

Education Services for Overseas Students (Designated Authority) Determination 2012 (No. 1)

 

 

This legislative instrument 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.

 

Overview of the Legislative Instrument

 

The Legislative Instrument is made under Subsection 7A (1) item 3 of Education Services for Overseas Students Act 2000 (the ESOS Act), by the Minister for Tertiary Education, Skills, Science and Research.

 

The purpose of the Legislative Instrument is to revise a previous determination of designated authority responsibilities with respect to English Language Intensive Courses for Overseas Students (ELICOS) and Foundation Programs to include the Tertiary Education Quality and Standards Agency (TEQSA) from 1 July 2012.  This reflects agreement by Government that in the interests of streamlined regulation TEQSA will be the designated authority for all Foundation Programs except where delivered by a school, and for all ELICOS delivered by a higher education provider or in an entry arrangement with a higher education provider for a higher education course or Foundation Program.

 

Human rights implications

 

Right to education

 

The Instrument engages the right to education, contained in Article 13 of the International Covenant on Economic, Social, and Cultural Rights. In particular, this Instrument has an effect on the provision of education services to international students by bodies corporate registered on the CRICOS.

 

To the extent that the right to education is engaged, this right is promoted by the Legislative Instrument.

 

Conclusion

 

This Instrument is compatible with human rights because it advances the protection of human rights.