Kirsten Livermore (Capricornia, Australian Labor Party, Shadow Parliamentary Secretary for Education) Share this | Hansard source

Our reputation for quality is the key to the industry’s success and must be fiercely protected. It was that recognition that led to the establishment of the ESOS regime back in 2000. The ESOS regime governs the responsibility of education providers to overseas students who arrive in Australia on student visas in the higher education, vocational education, secondary school or English language sectors. The ESOS Act, complementary acts, ESOS regulations and the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students, known as the national code, form the regulatory regime for international education. The national code has been revised and the new code will come into force on 1 July 2007.

The basic purpose of the original act was to ensure that education providers to international students adhered to consumer protection guidelines. The key components of the framework directed that providers must be registered with the Commonwealth Register of Institutions and Courses for Overseas Students, known as CRICOS; refrain from misleading and deceptive recruiting practices; be able to refund tuition in the case of the institution’s collapse; and be a member of a tuition insurance scheme to allow students to continue their studies at another Australian institution. Exemptions to this requirement apply to certain institutions, most notably those in the university sector. Providers must also report student breaches of visa conditions, disclose previous breaches by the provider and compulsorily comply with the national code and the act. In the case of a breach of the ESOS Act by providers, the Commonwealth has the power to impose sanctions such as the suspension or cancellation of CRICOS membership, as well as remove non-compliant operators from the industry.

Section 176A of the ESOS Act requires an independent evaluation of the act within three years of assent. This was carried out in 2004. The evaluation report was released in June 2005 and addressed quality assurance, consumer protection, migration policy and administration matters. The limitations of the ESOS legislation were recognised, and 41 recommendations for improving the effectiveness of its operation were made. Some of these recommendations were implemented in the 2006 amendments to the ESOS framework.

The Education Services for Overseas Students Legislation Amendment Bill 2007 addresses several of the recommendations put forward by the independent evaluation of the ESOS Act’s operation—namely, the addition of an objects clause; the extension of the ESOS Act to Christmas and Cocos (Keeling) Islands; facilitation of course delivery across state boundaries; better reflection of the actual allocation of roles and responsibilities of the Australian government and the state and territory governments in relation to investigating breaches of the national code; recognition of the respective roles of the Department of Immigration and Citizenship and education providers in the event that a provider reports a student for the breach of his visa conditions; recognition that written agreements with overseas students are mandatory; and removal of the late payment penalty for late payment by providers of the annual fund contribution.

The most straightforward change is the addition of an objects clause to clarify the main purposes of the ESOS Act. The principal objects are: (a) to provide financial and tuition assurance to overseas students for courses for which they have paid; (b) to protect and enhance Australia’s reputation for quality education and training services; and (c) to complement Australia’s migration laws by ensuring providers collect and report information relevant to the administration of the law relating to student visas. The objects identified are in line with recommendation 1 of the evaluation report.

Although this amendment does not in any way affect the operation of the act, it is a significant reminder to all involved in the education services industry about just what the ESOS regime is trying to achieve. Every provider and government authority involved in the education services industry has to appreciate their obligation to the sector as a whole in order to maintain and enforce high standards of both education provision and compliance with our migration laws. The failure of either providers or government departments to fulfil their role within the ESOS regime puts at risk the viability of other providers and ultimately the success of a multibillion dollar export industry.

The extension of the ESOS Act’s operation to Christmas Island and Cocos (Keeling) Islands was likewise recommended by the evaluators. It was also proposed by the Labor Party in 2006, when the first tranche of amendments to the ESOS Act was debated. This is a good, commonsense outcome for Christmas Island that both Senator Trish Crossin and the member for Lingiari have been very vocal about for some time. The community on Christmas Island will greatly benefit from the extension of eligibility for CRICOS registration to include the Christmas Island District High School. This should assist in maintaining the viability of the courses at years 11 and 12 levels by allowing international students to bolster numbers. We should recognise the role of the West Australian government in negotiating the necessary arrangements to put this proposal in place and thank them for their cooperation in achieving this good result for Christmas Island.

The overseas students that education providers recruit and enrol are in Australia on student visas. In enrolling these students, the education providers therefore accept responsibility for the educational outcomes of these students. Under the ESOS regime, those educational outcomes are important in discharging the provider’s responsibility to the student as a consumer of education services. They are also important in discharging the responsibilities of both the provider and the student to the department of immigration. Students must meet certain standards of performance in their studies to satisfy the conditions of their student visas, and providers have an obligation to report students to the department of immigration when those conditions are breached.

The ESOS Act is as much about maintaining the integrity of Australia’s migration system as it is about protecting the rights of overseas students as consumers of education services. As a result of that intersection between education and immigration, there has always been some blurring between the roles and responsibilities of the department of immigration and those of the education providers under the ESOS regime. During the course of the ESOS review, the Department of Immigration and Multicultural Affairs admitted that it adjudicated on visa related matters on the basis of its assumptions about educational matters. The department is not best qualified to make these assumptions. Now the ESOS Act and the Migration Act are proposed to be amended in order to give education providers greater discretion in determining academic outcomes, such as attendance and course progress, which are designated as visa conditions.

The evaluation report noted:

In sum, the ESOS framework brings the full weight of DIMIA’s compliance processes into play too early in educational processes that should be the responsibility of the provider. The intention was to circumvent contraventions of the student visa programme by non-genuine students and unscrupulous providers, but it has placed undue burdens on genuine providers.

The new national code of 2007 has responded to this problem and sets out the process for dealing with students who are in danger of breaching or who have breached the policy on course progress. The students will have access to the provider’s appeals process and must be notified of external appeals avenues as well. A provider must maintain the student’s enrolment while the appeals process is taking place.

Once a student has chosen not to access the provider’s complaints and appeals process or withdraws from the process, or once the process is completed and results in a decision supporting the registered provider, the registered provider must notify DEST of the unsatisfactory progress as soon as possible. Thus, a student’s attendance at the Department of Immigration and Citizenship will be only to resolve visa status rather than to adjudicate on student visa condition breaches relating to academic progress and attendance. This will provide greater flexibility to the education providers in managing the educational outcomes of their students and also in making exceptions for students deemed to have compelling and compassionate reasons for failing to meet progress or attendance requirements.

While this is a more effective and realistic delineation of the responsibilities of the department of immigration and education providers, the greater discretion that it gives to education providers should in no way be allowed to weaken the obligation on providers to uphold the highest standards for students when it comes to meeting their visa conditions.

The requirement in the national code of 2007 for mandatory written agreements between students and registered providers concurrently with or prior to accepting money from the student also required some more changes to the ESOS Act. This will assist with providing further protection to students and ensure that they are covered by formal contracts. The bill also includes amendments to allow state authorities to approve arrangements for an education provider registered in one state to deliver part of a course in another state. That arrangement might involve an interstate provider other than the registered provider. The state in which the provider is registered would remain responsible for registering the course, approving the arrangement and monitoring compliance in relation to the course.

I note that the minister in his second reading speech gave some examples of where these arrangements might be used by both vocational education providers and universities to allow students to undertake study or work based training interstate. This will be especially helpful when there is a scarcity of industry placements available for students in a particular state. Those opportunities can now be created through arrangements with interstate providers.

I want to come back to where I started this speech, and that is to the objects of the ESOS Act. It is instructive to look at what the reviewers said in the evaluation report, because the objects that they proposed go further and are much more strongly worded than those included in this amendment. I quote from the evaluation report:

1.

To establish and safeguard a positive basis for promoting Australia’s international reputation as a provider of high quality education and training by:

a.

Ensuring that education and training for overseas students meets nationally consistent standards; and

b.

Avoiding the presence in the education and training export industry of providers lacking integrity.

                          …            …            …

3.

To support the integrity of Australia’s migration programme by avoiding the presence in the education export industry of providers that facilitate breaches of student visa conditions.

As you can see, that is much more strongly worded than the objects that are being included in the act. Those objects should be a constant reminder that the aim of the ESOS regime should not be simply to increase red tape in the industry for the sake of it but to actually empower providers and authorities to safeguard this industry and protect it from those who want to rip off students and corrupt our migration system.

Many in the sector who care about quality and care about the stake the providers have in the continued strength of the industry have questioned the value of more and more regulation without the commitment from the federal government to enforce its powers under ESOS. They ask whether regulatory control of all providers of education to overseas students is the most efficient mechanism for achieving quality assurance. There is an administrative burden for providers in many of the ESOS requirements, so they want to see that the cost to them is worth it by those requirements keeping unscrupulous providers out of the industry. More and more regulation is meaningless unless DEST enforces compliance and actively pursues non-conforming providers in the interests of both the consumer and the Australian public.

However, the current approach seems to penalise all providers instead of targeting those providers not up to Australian standards. For example, in spite of the tightening of regulatory standards in the ESOS amendments passed last year, there have been several cases of providers operating in a manner which threatens the reputation of the entire education export sector. The trouble is that the federal government has failed to act to prevent these shonky providers from undermining the value of an Australian qualification and the integrity of our migration system.

In Victoria, it was revealed that in June 2006 the Australian Crime Commission recommended an investigation into the International Business and Hospitality Institute—a private college in Flinders Lane set up in 2005 by two Chinese businessmen—over allegations of student exploitation and criminal conduct. In spite of this recommendation, the college remained federally accredited until 13 March this year, eight months after the Australian Crime Commission’s recommendation and only after the Age newspaper revealed this failure to adequately police compliance with its own regulations. Allegations against this institute included one student from China, Ivy Xu, being told to take a long holiday after classes ended prematurely and another, Wendy Meng Ying, being taught the same lessons over and over again before also being directed to take long holidays.

The Crime Commission acted following a meeting with a former senior manager of IBH, Robert Palmer, who claimed that he had also contacted the departments of education and immigration about his concerns but that neither had bothered to investigate the matter. The Crime Commission found substance to Mr Palmer’s claims, passing the information to the Australian Federal Police, who also notified the department of immigration in November. Ultimately, it was the Australian Council for Private Education and Training, ACPET, that stepped in and relocated the students to other providers once they became aware of the situation in February. Tim Smith, ACPET’s national executive officer, has voiced his frustration at dealing with the federal education department and the federal minister for education, saying as recently as this Monday in the Financial Review:

On each occasion ACPET has raised a problem ... with the department, there has been no reaction or a reply saying they are unable to do anything ...

Yet there is a raft of sanctions the government can apply against errant providers but it declines to do so ...

There are some questions for the minister when she sums up on this bill later. In a further embarrassment for the government, Tim Smith also revealed this week that ACPET had rejected an application for membership from a college in Sydney on ethical grounds but that the minister for education subsequently granted and exemption to the same college allowing it to continue operating. What is going on in this sector?

Similar concerns about government inaction were expressed in a joint peak body response to the draft national code made up of the Vice-Chancellors Committee, ACPET, TAFE Directors Australia and English Australia in late May 2006:

DEST is not using the authority available to it in dealing with unscrupulous providers, but rather has imposed more regulation on all providers in an attempt to resolve an area of substandard performance. That is, to date, the Government has not used the existing consumer protection measures available to it to protect the interests of international education.

This joint statement demonstrates the frustration that several peak bodies experience in the day-to-day operations of the ESOS regime. Clearly, microregulation of providers is an inefficient use of educational resources that constantly increases the administrative regulations and requires the diversion of already inadequate funding, thanks to 10 years of Howard government cuts, from teaching to compliance.

It is not like these warnings to the government are anything new. In June 2005 the Attorney-General presented a report to parliament that also highlighted that there was little evidence to show that DEST was proactively protecting students and the international education industry from unscrupulous providers. It is time for the government to stop paying lip-service to regulating a $10 billion industry and show that the compliance burden placed on all providers is matched by a similarly rigorous approach from the department.

There is much at stake for education providers across the sector, whose investment in staff, buildings, marketing and expertise is built on Australia’s reputation for providing quality education. In a highly competitive international market that reputation cannot survive the consistent reports of unscrupulous providers, dissatisfied students and questions over the standards of education and training. You just need to look at a sample from the last couple of months, February and March, of some of the things that have been reported in our newspapers. There was the headline about IBH in Melbourne: ‘Chinese students claim school said take a holiday’. Other headlines include ‘Uni staff not qualified’ and ‘RMIT caught out on $12,000 diplomas’. A headline in the Age on 15 March read, ‘Student hunger strike over treatment as cash cows’. That one related to the university based in my own electorate, Central Queensland University. As was pointed out to me by representatives from CQU this week, there are always two sides to every story. But the damage is done every time these stories hit the headlines.

As we acknowledged in our second reading amendment, we cannot talk about international education without raising the state of Australia’s university sector. Perhaps the reason the government takes such a hands-off approach to international education is that it knows it has created an environment in which education providers are in a constant scramble for revenue just to survive. In those circumstances the pressure to attract more and more students is on a collision course with quality standards but the government cannot face up to that reality. Cracking down on practices embraced by universities as a result of the government’s policies might raise some uncomfortable questions for the minister.

Labor has raised the shameful state of public investment in our universities many times, and once again we condemn the government for the massive funding cuts it has inflicted on that sector, which is so vital to our economic and social wellbeing. The Howard government has cut billions from universities, so what started as an opportunity to raise additional revenue and broaden the horizons of all students is now a matter of sheer survival for many universities. Professor Simon Marginson has produced figures showing that in 2004 five universities relied on income from overseas students for over 20 per cent of their revenue. These were Curtin, Wollongong, RMIT, Macquarie and UTS. CQU, in my own electorate, obtains 38 per cent of its revenue from overseas students. On one level, on the face of those figures, we can congratulate those universities for their enterprise. But a responsible minister in a responsible government would be asking whether those figures are sustainable and what they are telling us about the state of the university sector. What is the price we are paying to attract such high numbers of overseas students?

That leads us to the other issue that comes up in connection with international education: the relationship between an Australian qualification and eligibility for permanent residency. The ESOS regime is supposed to ensure that overseas students in Australia are genuinely undertaking the courses in which they are enrolled. But there are suggestions that once again this is being compromised by universities and private colleges in the desperate grab for students and revenue. It seems that there is a proportion of students who overlook the quality of the course, enrol and pay the money to get one step closer to permanent residency. On the other hand there are providers who will overlook the quality of the students, take the money and award the qualification. The question is whether this is going too far. We now have students who are not genuinely capable of mastering the course requirements who are graduating with trade or professional qualifications and seeking permanent residency on the basis of their Australian qualifications.

Monash University academic Bob Birrell blew the whistle on this problem last year when he released his research showing that more than a third of university graduates granted permanent residence in 2006 did not have sufficient command of the English language to justify university admission, let alone earn a degree. We cannot allow this erosion of the value of an Australian degree or qualification to continue. When confronted with these problems the minister usually attacks the messenger and then points to the ESOS regime in defence of the government. But the regulations have to be enforced for them to have any impact.

The race for overseas students that our universities are engaged in is entering very dangerous territory. Professor Marginson’s work in this area tells us that global higher education is stratified, with the top-tier elite institutions around the world attracting students on the basis of the name and reputation of the individual institution. On the other hand, Australian universities fall in the next tier. In that market, it is not the individual institutions that students recognise and judge but the country. When it comes to attracting international students, it is the reputation of Australia as a whole that matters. Very few of our universities have a strong enough reputation internationally to overcome the damage that will occur to our national reputation as an education provider if the current collision between funding and quality is not addressed across the university sector as a whole—and, indeed, across the entire education sector.

The minister cannot just assume that the revenue from overseas students can keep propping up our universities while government policies continue to undermine the quality of teaching and research. If the universities most under pressure to accept any and all overseas students keep doing that to stay afloat, the consequent damage to Australia’s reputation will bring down the whole industry. Any compromise on quality will lead the industry into a dead end, especially when competition for students within our region is growing stronger every day. We need to be out there in the international marketplace promoting the quality of our courses and institutions, not offering shortcuts to permanent residency.

Quality is the way that we will attract the best international students—and, of course, they are the ones we want. The best students are the ones who will be able to contribute to Australia’s skills base if they decide to become permanent residents. The best students are the ones who will return home with their Australian degrees and take up senior positions in industry, academia and government, where their strong relationship with Australia—and, hopefully, their fond memories of their time here as students—will be of enormous value. We will not get the best students if we do not protect our reputation for quality, and our reputation for quality is seriously undermined when the actions of rogue operators are allowed to cast a shadow over all providers.

I realise that in my speech so far I have not mentioned the students. We talk about the education industry here in Australia—and that is of great importance to us as an export industry—but we should not forget the students in all of this. These students, mostly from around our region of Asia, India and South-East Asia, are paying thousands of dollars for an education here in Australia. No doubt it often causes their families some sacrifice or even hardship for students to undertake their education in Australia, and we need to make sure that, when students come to our country and enrol with our universities, private colleges and vocational education and training providers, they are getting good quality education and the care that they need to overcome the difficulties of coming to a strange country.

We need to create an environment in those institutions, schools and colleges that promotes interaction between the overseas students and the domestic students. That is where the full value of the international student operation really comes into play. It is about sharing the cultures on campus. It is about making sure that the students who come here from overseas and from within our region are sharing their experiences and their cultures with Australian students and that, likewise, we are not only offering them the support that they need to complete their studies successfully but also making sure that their personal needs are met and that pastoral care is provided for them.

I come back to where this all started. The idea of offering education to overseas students was always built in Australia on that notion of the role it had to play in building relationships with the countries around us. By educating students from overseas and then sending those students back with their Australian qualifications to take part in industry and government within their home countries, we are constantly building bridges, using those students and their fond memories of Australia to strengthen the relationships that Australia has and needs within our region. So let us not forget that we need to take good care of those students. We need to provide them with quality education. We need to ensure value for the money they have paid for their education and we need to look after them on a personal level as well.

As I said at the start of my speech, Labor is supporting this bill—it is generally supported within the sector—but with this proviso: it is time for the government to pull its weight. It is one thing to impose regulation on the industry, but that regulation has to be enforced to be effective. The vast majority of providers are out there doing the right thing and putting the administrative procedures in place to ensure their compliance with the ESOS regulations, but the government has to be out there enforcing the regulations against those rogue providers who threaten the health of the whole sector.

See this speech in context