Arthur Sinodinos (NSW, Liberal Party, Assistant Treasurer) Share this | Link to this | Hansard source

I move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows—

EDUCATION SERVICES FOR OVERSEAS STUDENTS AMENDMENT BILL 2013

The key to Australia's competitiveness in providing world-leading education services to overseas students will rest on how well we promote our institutions and enhance both their quality and the experience of students who come to our shores. We must also act decisively to minimise the constraints of unnecessary regulatory burden on education providers to support a vibrant international education system into the future. The successful and efficient operation of the Education Services for Overseas Students Act 2000, or ESOS, and its associated legislative framework is an important element in enhancing international education in Australia.

Australia's reputation for quality in international education is built on the excellence of our universities, higher education institutions, schools and technical colleges, both public and private. ESOS supports the integrity of our student visa system, which is fundamental to our international education provision. It gives students who come here the assurance that their rights as consumers are respected and their needs in adjusting to life in Australia are met. It ensures they are supported to pursue an outstanding educational experience here. We warmly welcome international students, and this government will do everything we can to encourage them to choose Australia first when they are considering an international education.

There are currently around 1,000 providers of international education in Australia, from large universities and TAFEs to small private colleges and English language providers, as well as public and private schools. Under the Labor government, there was an alarming decline in income earned by Australian international education from its peak in 2009-10. This government is acting decisively and quickly to ensure a much more prosperous future for international education.

This is why the government will respond positively to the advice of the International Education Advisory Council in its report, Australia: Educating Globally, widely known as the Chaney Report, and release a draft national strategy for international education for consultation in early 2014.

In delivering on our support for international education this government has announced an approach that will encourage growth in international student numbers by allowing flexibility in Australia's approach to allocating student visas.

The previous government limited access to streamlined visa processing to universities only, when it was introduced in late March 2012. No other higher education providers were offered access to streamlined visa processing. This government is rectifying what we consider to be a serious impediment to the growth of international education in Australia.

On 29 October 2013, the government announced that it would extend the offer of streamlined visa processing arrangements to 22 degree awarding non-university providers of higher education that present a low immigration risk. The government also announced the simplification of the Assessment Level Framework. Education providers who are not being offered the opportunity to participate in streamlined visa processing arrangements at this time will benefit from these significant improvements to the Assessment Level Framework.

The reforms to streamlined visa processing and the Assessment Level Framework, and the work we commence here today with the ESOS Amendment Bill, are the kinds of reforms we need to strengthen our international education system. They are integral to our plan for safeguarding and enhancing Australia's status as a world-leading provider of education services.

The ESOS Amendment Bill I introduce today will begin the essential adjustment to the regulatory settings for international education to align and simplify our current legislative framework. The amendments are necessary because of unintended consequences arising from the implementation of amendments to the ESOS Act in early 2012 under the previous government. The amendments today will increase the certainty and fairness for our overseas students, and are an important change to ensure the current legislative framework operates effectively.

The amendments to the ESOS Act to be made by this bill will ensure that the refunds registered providers are required to make to their overseas students are appropriate. That is, the amendments ensure refunds encompass tuition fees paid by students both before and after the commencement of their period of study, where those fees are unspent at the time that a default occurs.

These important clarifications to a core function of the ESOS Act are to be delivered through an amendment to the use of the term 'pre-paid' fees, which will be replaced with 'tuition' fees in Division 2 of Part 3 of the ESOS Act. This is consistent with the original intention of the amendments to the ESOS Act in 2012. Importantly, these changes are technical in nature and do not place new or extra requirements on providers. Rather, the requirements on providers and protections for students are being clarified and simplified, and will benefit both.

In addition, the bill will clarify the situation relating to refunds in cases of student defaults caused by a visa refusal. This can be a complex area for providers to navigate, where often several pieces of legislation apply, and it can be difficult for overseas students too. This bill will give the minister the power to make a Legislative Instrument under the ESOS Act that will stipulate how a refund to a student is to be made in instances of student default for visa refusal, and also in cases of student default where there is no written agreement in place between the provider and the student. This Legislative Instrument is intended to take effect at the time these provisions take effect.

The bill will also amend the 'National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007' to remove reference to 'Registration Authorities'. Requirements previously imposed on Registration Authorities by the National Code are now contained in the ESOS Act. The removal of the reference to Registration Authorities will ensure that the title of the National Code properly reflects its content. This minor amendment precedes a more substantial review of the National Code overall. The Department of Education will be consulting in the coming months with key stakeholders on ways in which the National Code can be improved in the context of the government's deregulation policy, specifically its review of higher education regulation.

This bill is the first legislative step the government is taking to build a new architecture for international education so that the industry can grow and achieve its enormous potential. The government will continue to introduce more reforms to improve the competitiveness, sustainability and quality of Australia's education system into the future.

MIGRATION AMENDMENT BILL 2013

The Migration Amendment Bill 2013 amends the Migration Act 1958 to address a number of recent court and tribunal decisions that significantly affect the operations of my Department, including the processing of visa applications made by asylum seekers and other non-citizens.

When a decision is made and meaning of 'finally determined'

The first Schedule to the bill will put beyond doubt that a decision on review, or a visa refusal, cancellation or revocation decision by the minister or his delegate, is taken to be made on the day and at the time when a record of it is made, and not when the decision is notified or communicated to the application or the former visa holder.

The amendments address the decision of the Full Federal Court of Australia in Minister for Immigration and Citizenship v SZQOY [2012] FCAFC 131, in which the Full Federal Court found that the RRT's decision making power in respect of a review is not exercised or 'spent' until the review decision is notified 'irrevocably and externally'.

They also address the Full Federal Court's decision in Minister for Immigration, Multicultural Affairs and Citizenship v SZRNY [2013] FCAFC 104, in which the Full Federal Court extended the judgment in SZQOY and found that an application is 'finally determined' (that is, no longer subject to a form of merits review) only when the review decision of the RRT is notified to both the review applicant and the Secretary of the Department of Immigration and Border Protection according to law. It was immaterial that the review decision had been notified externally and that the review applicant had actually been notified of the review decision despite any error in the notification itself.

These findings cause potential difficulties and risks in the administration of the Act. For example, the concept of an application being 'finally determined' is crucial to liability for removal under section 198 of the Act. The amendments will therefore remove any doubt as to when a decision by the minister, delegate or tribunal is made and an application is 'finally determined'.

Statutory bar against further Protection visa applications

The second schedule to the bill clarifies that a person in the migration zone who has previously been refused a protection visa, or who held a protection visa that was cancelled, is prohibited from making a further protection visa application. This applies regardless of the basis upon which the earlier protection visa application was made or granted.

The amendment addresses the decision of the Full Federal Court on 3 July 2013 in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71. In that case, the Full Federal Court found that section 48A of the Migration Act only prohibited the making of a protection visa application that relied on the same ground as the previously refused protection visa application.

For example, if a non-citizen previously made a protection visa application raising claims under the Refugees Convention, section 48A of the Migration Act would not prohibit a new protection visa application based on complementary protection claims.

By restoring the intended operation of the statutory bar in section 48A of the Act, the amendment will preserve the integrity of Australia's protection visa program and avoid its abuse, by preventing non-citizens without meritorious claims for protection from delaying their departure from Australia by making repeat protection visa applications on different grounds each time.

Protection visa applicant not assessed to be a risk to security by ASIO

The third schedule to the bill addresses the decision made by the High Court in Plaintiff M47/2012 v Director-General of Security & Ors [2012] HCA 46. In October 2012, the High Court of Australia found that the use of the public interest criterion 4002 in the Migration Regulations 1994 was not a valid criterion for the purposes of a Protection visa application.

Public interest criterion 4002 states that the applicant is not to be assessed by the Australian Security Intelligence Organisation (ASIO) to be directly or indirectly a risk to security within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979 (the ASIO Act). In the absence of PIC 4002, the Protection visa assessment process for persons with an adverse security assessment is currently problematic as each case requires individual consideration as to whether the person does or does not pass the character test in section 501 of the act.

The bill will amend section 36 of the Migration Act to insert a specific criterion for a Protection visa that the applicant is not assessed by ASIO to be directly or indirectly a risk to security, within the meaning of section 4 of the ASIO Act. The new criterion in section 36 reflects the wording of PIC 4002.

In addition, the amendments in the bill also put beyond doubt that the Migration Review Tribunal, the Refugee Review Tribunal and the Administrative Appeals Tribunal will not have the power to review a decision to refuse to grant or to cancel a protection visa on the basis of an adverse security assessment by ASIO that the applicant for, or holder of, a Protection visa is directly or indirectly a risk to security within the meaning of section 4 of the ASIO Act.

The amendments will also reflect current paragraph 500(4)(c) of the Migration Act by confirming that the Refugee Review Tribunal does not have the power to review a decision to refuse to grant or to cancel a Protection visa made on the basis of one or more of Articles 1F, 32 or 33(2) of the Refugees Convention or paragraphs 36(2C)(a) or 36(2C)(b) of the Migration Act. Paragraph 500(1)(c) provides only the AAT has the jurisdiction to conduct a merits review of those decisions.

The amendments ensure that to meet community expectations, the government must not only have the ability to act decisively and effectively, wherever necessary, to protect the Australian community, but also to have the legislative basis to refuse a protection visa or to cancel a protection visa, for those non-citizens who are a security risk.

We must prevent and deter any threats posed by those who are a risk to the security or our nation and must implement legislative amendments such as those to section 36 of the Migration Act to ensure the security and safety of the Australian community.

I commend the bill to the chamber.

PRIVATE HEALTH INSURANCE LEGISLATION AMENDMENT BILL 2013

This bill seeks to redress implementation concerns with legislation introduced by the previous government. As part of the 2012-13 Mid-Year Economic and Fiscal Outlook, the former government announced that from 1 April 2014, the government's contribution to an individual's private health insurance rebate would be capped and effectively reduced over time as a proportion of the premium.

The previous government's legislation caps the Australian Government Rebate by setting a base premium for every type of insurance product on the market, and then indexes the rebate payable for every type of private health insurance product subgroup by the lesser of the increase in the Consumer Price Index or the increase in the commercial premium for each product subgroup.

It was the third measure introduced by the previous government to reduce rebates available to people with private health insurance, but it also introduced additional complexity.

Industry has expressed concern that the planned administration of the Base Premium Act at a product level was unduly complicated, difficult and costly to implement and would be difficult for consumers to understand. Industry has advised that there are over 34,000 policies on the market and the burden placed on private health insurers to comply with the application of a unique rebate for each policy type is estimated to be more than $15 million in implementation costs alone.

The Private Health Insurance Legislation Amendment Bill 2013 simplifies current implementation arrangements for indexing the government's contribution to the Rebate by amending the Private Health Insurance Act2007 to create a single adjustment factor under a legislative instrument. The rebate will be adjusted uniformly across all insurance policies each 1 April by a factor, to be determined in accordance with the Private Health Insurance (Incentives) Rules made under section 333-20 of the Private Health Insurance Act 2007. The adjustment factor will be a ratio representing the proportion of the increase in the consumer price index compared to the average private health insurance premium increase. The adjustment will apply to premiums that are paid or payable in the 12 months starting on that 1 April.

This arrangement will be easier for consumers to understand and for insurers to implement.

Industry has advised that this bill will result in administrative savings of around 80 per cent below the costs to implement the Base Premium Act.

The bill is also making a minor amendment to the Private Health Insurance Act 2007 to clarify that a restricted access group can include one or more classes of people as defined within the Private Health Insurance (Registration) Rules.

Private Health Insurance is in important pillar of Australia's health system. The previous coalition government introduced a range of measures, including the private health insurance rebates that successfully arrested the decline in private health insurance and resulted in a significant uptake in hospital cover since. Over 10.9 million Australians have hospital treatment cover today. The government remains committed to supporting private health insurance and those that make the sacrifice, often on modest incomes, to provide for their own healthcare.

The bill today alleviates a considerable administrative burden with the implementation of the previous government's measure. It reflects the government's determination to reduce unnecessary regulation and red tape wherever possible.

THERAPEUTIC GOODS AMENDMENT (2013 MEASURES NO. 1) BILL 2013

I am pleased to introduce the Therapeutic Goods Amendment (2013 Measures No.1) Bill 2013, which amends the Therapeutic Goods Act 1989.

The purpose of this bill is to make a number of changes that will contribute to a reduction in regulation or in potential health risks to the public, improving the transparency of the regulatory scheme or providing greater clarity and certainty about the operation of the Act.

An important measure included in the bill, which is the power of the minister to remove products from the operation of the Therapeutic Goods Act in appropriate circumstances, will provide a basis to address the growing trend of therapeutic claims being made for all manner of products to appeal to health conscious consumers. Jewellery, bedding and even clothing may be marketed for their claimed health or wellbeing benefits, and because of such claims, may draw those products within the regulatory scheme for therapeutic goods, a scheme which is primarily directed at the regulation of goods designed specifically to, among other things, ameliorate, prevent, treat or influence ailments, disease or injuries.

This has come about because the definition of "therapeutic goods" in the Act is very wide, and may capture goods in respect of which any claim is made that it could, for example, influence or modify a physiological process in persons. Claims made that a good will influence a person's wellbeing, physical attributes or mood could well bring those products within the description of "therapeutic goods" and attract regulation under the act.

New Section 7AA will allow the minister to remove such products from the regulatory scheme for therapeutic goods, and reduce unnecessary or inappropriate regulation of goods that are caught by the act only because of claims made about them, particularly where any concerns about the nature and extent of those claims may be more appropriately dealt with under other existing regulatory schemes, such as under consumer protection laws.

In making decisions to remove products from the operation of the Act, the minister must consider a number of factors, including whether it is likely that the goods in question—if not regulated under the act—might harm the health of members of the public, whether it is appropriate in all the circumstances for the goods to be regulated under the act, and whether the goods could be more appropriately dealt with under another regulatory scheme. The new section will provide the first opportunity for particular goods to be removed from the regulatory constraints of the act where those goods, for instance, do not represent a health risk, or where there may be other sound reasons for not regulating the products under therapeutic goods legislation. The Australian public should be assured that there is no intention to use this power to remove from the regulatory oversight of the Therapeutic Goods Administration medicines and medical devices in relation to which standards, level of assessment for marketing approval and post market monitoring and compliance under the act is appropriate.

Any decision to exclude particular goods from the operation of the act will be by way of a legislative instrument, and will be subject to parliamentary scrutiny and where appropriate will involve industry and public consultation.

Consistent with this approach of ensuring that the focus of regulation under the act remains directed at products that have a genuine public health focus, the bill also includes a power for the Secretary to remove goods from the Australian Register of Therapeutic Goods where they are not, in fact, therapeutic goods.

Such goods can find their way into the Register where sponsors of low risk products, such as complementary medicines, include goods that may be, for instance foods, into the Register by means electronic listing without pre scrutiny by the TGA.

A new power will allow the Secretary to remove those products from the Register but only after the sponsor has been afforded an opportunity to make submissions and any decision is subject to internal and review by the Administrative Appeals Tribunal.

Another measure that will have the effect of reducing regulation is the removal of the offence provisions directed at applicants seeking marketing approval for their therapeutic goods who fail to provide information required by the TGA about their goods. The application of these offence provisions to such applicants is unnecessary because if an applicant fails to respond to a requirement to provide information this could lead to a refusal to grant marketing approval for the applicant's goods, and this will mean that the goods may not be lawfully manufactured or supplied.

Other measures that reduce regulation include expanding the scope of the definition of a 'kit' which will allow a greater range of products to be subject to a simpler regulatory approval process, and amendments to allow the reversal of cancellation decisions done at the request of sponsors and holders of licences thus avoiding review procedures or the need to seek new marketing approval or licences.

To assist industry with complying with current regulatory requirements, a number of changes have been made to clarify the operation of existing provisions in the act.

One of these is the reference to the obligation to comply with requirements relating to advertising applicable under the Act and Regulations. An amendment has been included to clarify that these advertising requirements include complying with applicable provisions the Therapeutic Goods Advertising Code, a document that sets out rules for the advertising of therapeutic goods. Among other things, this requirement to comply with 'advertising requirement' forms one of the criteria for determining whether goods should be included in the Register and whether goods should be removed from the Register because of non compliance with this requirement. Information about compliance with advertising requirements may also be required from sponsors of therapeutic goods applying to include their goods in the register or who already have goods already included in the Register.

The process by which higher risk medicines are registered in the register has been made clearer, with changes to the act that clarify under which provisions of the act decisions to approve Product Information, and decisions to approve an application to register medicines, are made. Both decisions are interrelated, and the amendments clarify that where a decision to approve an application and a decision on Product Information have both been made, additional administrative steps that are already required under the Act must be followed before the medicine may actually be included in the Register, from which time the sponsor of that medicine may then lawfully market it.

To assist with clarity and provide greater consistency, amendments have been included to address a legal anomaly to ensure that the offence for publishing or broadcasting an advertisement about therapeutic goods to the public containing a prohibited representation for a low risk medicine (eg a reference to the treatment of cancer) does not apply where the sponsor of the goods has been given the TGA's permission under the act to use the representation in particular circumstances. This will ensure that a sponsor with such permission will be able to use the representation in accordance with the permission without fear of committing an offence.

To reduce potential health risks to the public, two new grounds for cancelling goods from the register have been included in the bill. One of these grounds enables the TGA to cancel products from the register where the presentation of therapeutic goods is no longer acceptable. Presentation includes how the goods are named, how they are labelled and packaged, and any advertising or other informational material associated with the goods. Presentation is one of the matters that is relevant to a decision whether to include medicines and biologicals in the register. The effect of the new ground of cancellation is to ensure that this important pre-condition to the inclusion of goods in the register continues to apply while they remain in the register but will not increase the regulatory burden on compliant sponsors and is aimed solely at safeguarding public health. It should be noted in this context that the TGA already has the power under the act to cancel medicines from the register that do not comply with applicable standards such as the standard on medicine labelling and packaging.

The second ground of cancellation of goods from the register relates to a failure by a sponsor to comply with a request to provide information about its medicines after the medicine has been included in the register. This information may be required to inform the TGA about whether the medicine in question should remain in the register, or whether regulatory action should be taken in relation to that medicine because of any concerns about its safety, efficacy or quality. Again, this measure would not increase regulatory burden for compliant sponsors who respond to requests for information about their products within the required time.

Sponsors have a right to both internal and external review about decisions the TGA makes to cancel products from the Register.

Currently, it is an offence or a breach of a civil penalty provision for a sponsor of complementary medicines to give false or misleading information in response to a request by the Secretary for information about their goods. An amendment has been included in the bill to extend this offence to also cover all sponsors of registered goods and other persons such as applicants for registration or listing to whom such requests for information can be made.

The bill also introduces offences and a civil penalty provision where sponsors of therapeutic goods give information that is false or misleading in a material particular in a request for approval of changes to their goods. The kinds of information that may accompany such requests can include complex and extensive scientific data about the goods, for example clinical trial results or the incidence of adverse reactions to prescription medicines. This information will often only be known to the sponsor, and can be critical to determining the quality, safety or efficacy of the goods. It is therefore important that the act contains an effective deterrence against providing false or misleading information to the TGA about goods that are being used by the Australian public.

These measures will not increase the regulatory burden on compliant sponsors but are rather aimed solely at safeguarding public health.

An amendment has become necessary to support the current transition arrangement for the reclassification of hip, knee and shoulder joint implants from Class IIb medical devices to Class III. These products were reclassified following the November 2011 Inquiry by the Senate Standing Committee on Community Affairs on 'Regulatory Standards for the Approval of Medical Devices'. The proposed amendment will allow for an alternative number of days (to be prescribed in the Regulations) to the current 20 working days for the secretary to decide whether to audit an application for marketing approval for a Class IIb device seeking up-classification to Class III and what information is required from the applicant for the purposes of undertaking that audit.

A large number of these transitional applications are expected in the lead up to the end of the transition period on 30 June 2014. Allowing more time to determine whether an application should be audited will help ensure that the TGA can manage all the application efficiently but will not adversely affect sponsors because their Class IIb devices will remain on the Register, allowing these to continue to be marketed, until their application for up-classification has been processed, providing their application is lodged before 30 June 2014. It will also help ensure that resources are not diverted from consideration of applications for other kinds of medical devices during that period.

Finally, measures that will require the TGA to publish details of cancellations of medicines on the TGA's website or in the Gazette, and measures to allow the publication of decisions currently required to be published in the gazette to be published on the TGA's website, plus a new requirement for TGA to publish the outcomes of any internal review decision where the effect is to overturn a decision to suspend or cancel a product from the register, will improve transparency of the regulatory scheme established under the act.

In conclusion, the measures contained in this bill will make improvements to the regulatory scheme by making a contribution to reduction in regulation where appropriate and in potential health risks to the public, create greater transparency about decisions made under the act and assist industry by providing greater clarity, certainty and consistency in relation to the operation of the act.

VETERANS' AFFAIRS LEGISLATION AMENDMENT (MISCELLANEOUS MEASURES) BILL 2013

I am pleased to present legislation that will improve and update Veterans' Affairs legislation.

The bill will clarify the approval and authorisation arrangements for travel for treatment for eligible persons and attendants under the Veterans' Entitlements Act and the Australian Participants in British Nuclear Tests (Treatment) Act.

In 2012-13 the Department processed over 165,000 claims for reimbursement for travel expenses for treatment purposes.

Travel expenses can include costs for transport, mea