Academic journal article Journal of Law and Education

The New Protective and Regulatory Regime for Overseas Students' Education in Australia

Academic journal article Journal of Law and Education

The New Protective and Regulatory Regime for Overseas Students' Education in Australia

Article excerpt

Foreign Developments

I. Introduction

Australians have been reaping the benefits of their proximity to many "tiger economies" in Asia, combined with the Australian good educational systems and standards, by offering quality education to overseas students, both at secondary and tertiary levels, at internationally-competitive prices.1 While the Australian international standing generally has been good, some fly-by-night or get-rich-quick institutions or operators had tarnished Australian education's good reputation.2 The Australian Commonwealth (federal) parliament, which has the constitutional responsibility of funding the higher education,3 has been active in providing legislative protection to overseas students and institutions. For example, it passed legislation in 1991,4 which served its purposes for a time. However, that legislation was found to be (i) wanting for the needs and demands of the 21st century,5 and (ii) defective and deficient in properly regulating international education, particularly to protect consumer interests of the overseas student population.6 The Australian Commonwealth parliament-- IMAGE FORMULA6

after thorough review7 and proper consultations with the interested parties particularly the States, the Immigration Department, educational institutions and student unions8-passed five Acts to comprehensively regulate, and provide a more effective framework for, overseas education. Therefore, an effort was made to reform the system by thorough and far-reaching legislative provisions. The new regulatory system came into effect on June 4, 2001.9

This article aims to give an overview of the recent legislative changes.

II. The New Legislation Introduces Fundamental changes

The aim of the new legislative regime is "to provide a positive basis for promoting Australia's international reputation as a provider of reliable, high quality education and training."10 The most important of the five pieces of legislation passed in 2000 is the (Commonwealth) Education Services for Overseas Students Act 2000 (ESOS).11 This replaces the 1991 legislation. It aims, inter alia, to "protect and enhance the industry's integrity and quality, and [to] assist in reducing abuse of the student visa program .... The continuing value of the industry depends on the service it provides to overseas students and on public confidence in its integrity and quality."12

The legislative changes effective from June 2001, by the five Acts of Parliament (Commonwealth) deal with the following significant matters.

A. Protection of prepaid fees

The previous law failed to protect students' pre-paid fees. Because of the lacunae in the law, many unscrupulous operators jumped on the bandwagon to make money, and, it would appear, succeeded with impunity. As a conseIMAGE FORMULA9

quence, not surprisingly, there were many voluntary liquidations or collapses amongst the providers. Many students suffered financial loss and could not (1) get the education that they had been promised, and/or (2) did not get any refund or compensation.13 This was despite the existence of the Notified Trust Account Scheme and the Tuition Assurance Scheme. However, these proved to be quite defective and ineffective. As a result, many disgruntled students were not eligible to, and/or therefore did not get, any refund or compensation. Even where some students were eligible to receive insurance money, by the time their eligibility had been established, they had returned home because their visa had expired.14

The bad publicity, especially overseas, tarnished the reputation of the whole educational system in Australia. It was obvious that the then existing system was unreliable in protecting overseas students against the risk of their educational provider collapses.

The objective of the new rules is to ensure that overseas students receive the tuition for which they have paid and in the case of provider collapse, that they receive alternative tuition or a refund. …

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