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This is a Bill, not an Act. For current law, see the Acts databases.
OMBUDSMAN AMENDMENT (EDUCATION OMBUDSMAN) BILL 2010
2008-2009-2010
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Ombudsman Amendment (Education
Ombudsman) Bill 2010
No. , 2010
(Senator Hanson-Young)
A Bill for an Act to amend the Ombudsman Act
1976 to establish the Education Ombudsman, and
for related purposes
i Ombudsman Amendment (Education Ombudsman) Bill 2010 No. , 2010
Contents
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
1
3
Object of Act ...................................................................................... 2
4 Schedule(s)
........................................................................................
2
Schedule 1--Amendments relating to the Education
Ombudsman
3
Part 1--Amendment of the Ombudsman Act 1976
3
Part 2--Amendment of other Acts
21
Migration Act 1958
21
Privacy Act 1988
21
Ombudsman Amendment (Education Ombudsman) Bill 2010 No. , 2010 1
A Bill for an Act to amend the Ombudsman Act
1
1976 to establish the Education Ombudsman, and
2
for related purposes
3
The Parliament of Australia enacts:
4
1 Short title
5
This Act may be cited as the Ombudsman Amendment (Education
6
Ombudsman) Act 2010.
7
2 Commencement
8
(1) Each provision of this Act specified in column 1 of the table
9
commences, or is taken to have commenced, in accordance with
10
column 2 of the table. Any other statement in column 2 has effect
11
according to its terms.
12
13
2 Ombudsman Amendment (Education Ombudsman) Bill 2010 No. , 2010
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1
On the day after the end of the period of 6
months beginning on the day on which this
Act receives the Royal Assent.
Note:
This table relates only to the provisions of this Act as originally
1
passed by both Houses of the Parliament and assented to. It will not be
2
expanded to deal with provisions inserted in this Act after assent.
3
(2) Column 3 of the table contains additional information that is not
4
part of this Act. Information in this column may be added to or
5
edited in any published version of this Act.
6
3 Object of Act
7
The object of this Act is to safeguard the quality of and access to
8
higher education for all students and education for overseas
9
students in Australia by establishing the office of Education
10
Ombudsman.
11
4 Schedule(s)
12
Each Act that is specified in a Schedule to this Act is amended or
13
repealed as set out in the applicable items in the Schedule
14
concerned, and any other item in a Schedule to this Act has effect
15
according to its terms.
16
17
Amendments relating to the Education Ombudsman Schedule 1
Amendment of the Ombudsman Act 1976 Part 1
Ombudsman Amendment (Education Ombudsman) Bill 2010 No. , 2010 3
Schedule 1--Amendments relating to the
1
Education Ombudsman
2
Part 1--Amendment of the Ombudsman Act 1976
3
1 Title
4
After "Defence Force Ombudsman", insert ", an Education
5
Ombudsman".
6
2 Subsection 3(1)
7
Insert:
8
course means a course of education or training.
9
3 Subsection 3(1)
10
Insert:
11
education provider means:
12
(a) a higher education provider; or
13
(b) a registered provider; or
14
(c) any other provider of a course that the Minister administering
15
the Education Services for Overseas Students Act 2000
16
determines is an education provider for the purposes of this
17
Act.
18
4 Subsection 3(1)
19
Insert:
20
higher education provider has the same meaning as in the Higher
21
Education Support Act 2003.
22
5 Subsection 3(1) (at the end of the definition of officer)
23
Add:
24
Note 2:
For the meaning of officer for the purposes of Part IIAA, see
25
section 19FA.
26
6 Subsection 3(1) (at the end of the definition of principal
27
officer)
28
Add:
29
Schedule 1 Amendments relating to the Education Ombudsman
Part 1 Amendment of the Ombudsman Act 1976
4 Ombudsman Amendment (Education Ombudsman) Bill 2010 No. , 2010
Note:
For the meaning of principal officer for the purposes of Part IIAA, see
1
section 19FA.
2
7 Subsection 3(1)
3
Insert:
4
registered provider has the same meaning as in the Education
5
Services for Overseas Students Act 2000.
6
8 After subsection 3(6D)
7
Insert:
8
(6E) For the purposes of this Act, action that is taken by an officer of an
9
education provider is taken to have been taken by the education
10
provider if the officer takes, or purports to take, the action because
11
he or she is an officer of the education provider, whether or not:
12
(a) the action is taken for or in connection with, or as incidental
13
to, the provision of a course by the education provider; or
14
(b) the taking of the action is within the duties of the officer.
15
9 After Part IIA
16
Insert:
17
Part IIAA--Establishment, functions, powers and
18
duties of the Education Ombudsman
19
20
Division 1--Preliminary
21
19FA Definitions
22
In this Part:
23
officer, in relation to an education provider, means:
24
(a) if an education provider is an individual--the individual or
25
an employee of the individual; or
26
(b) if an education provider is a body corporate--a director, the
27
secretary or an employee of the education provider; or
28
(c) if an education provider is a partnership--a partner in, or an
29
employee of, the partnership.
30
Amendments relating to the Education Ombudsman Schedule 1
Amendment of the Ombudsman Act 1976 Part 1
Ombudsman Amendment (Education Ombudsman) Bill 2010 No. , 2010 5
principal officer, in relation to an education provider, means:
1
(a) if an education provider is an individual--the individual; or
2
(b) in any other case--the individual primarily responsible for
3
the management of the education provider.
4
19FB Continued application of this Act in certain circumstances
5
(1) This section applies if:
6
(a) an education provider took action at a particular time; and
7
(b) the Education Ombudsman receives a complaint in respect of
8
that action within 12 months after that time; and
9
(c) after that time, the education provider ceases to be an
10
education provider for the purposes of this Part.
11
(2) This Act applies as if the education provider continued to be an
12
education provider in relation to that complaint.
13
19FC Part IIAA not to affect operation of other provisions of this
14
Act
15
This Part does not, by implication, affect the operation of other
16
provisions in this Act.
17
Division 2--Establishment and functions of the Education
18
Ombudsman
19
19FD Establishment of office of Education Ombudsman
20
(1) The office of Education Ombudsman is established by this section.
21
(2) The office of Education Ombudsman is to be held by the person
22
who holds the office of Commonwealth Ombudsman.
23
(3) The reference in subsection (2) to the person who holds the office
24
of Commonwealth Ombudsman includes a reference to a person
25
for the time being acting in that office by virtue of an appointment
26
under section 29.
27
Schedule 1 Amendments relating to the Education Ombudsman
Part 1 Amendment of the Ombudsman Act 1976
6 Ombudsman Amendment (Education Ombudsman) Bill 2010 No. , 2010
19FE Functions of Education Ombudsman
1
(1) The functions of the Education Ombudsman are to investigate
2
complaints made to him or her under this Act and to perform such
3
other functions as are conferred on him or her by:
4
(a) this Act or the regulations; or
5
(b) another Act or regulations made under another Act.
6
(2) Subject to this Act, the Education Ombudsman:
7
(a) is to investigate action that he or she is authorised by this Act
8
to investigate and in respect of which a complaint has been
9
made to him or her; and
10
(b) may, on his or her own initiative, investigate action that he or
11
she is authorised by this Act to investigate.
12
(3) Subject to subsection (6), the Education Ombudsman is authorised
13
by this Act:
14
(a) to investigate action taken either before or after the
15
commencement of this Part by an education provider:
16
(i) with respect to the provision of a course; or
17
(ii) that is related to the provision of a course; or
18
(iii) that arises in consequence of the provision of a course;
19
(b) to investigate action that relates to the administration, service
20
delivery functions or regulatory functions of a Department or
21
a prescribed authority in relation to courses, taken either
22
before or after the commencement of this Part by the
23
Department or the prescribed authority, and in respect of
24
which a complaint has been made to the Education
25
Ombudsman; and
26
(c) to carry out compliance audits of the exercise of the
27
regulatory and investigative functions of a Department or a
28
prescribed authority in relation to courses; and
29
(d) to provide advice and training to education providers,
30
Departments and prescribed authorities on, and to facilitate
31
continuous improvement in, best practice complaints
32
handling; and
33
(e) to conduct, on his or her own initiative, agency specific and
34
cross-agency investigations into areas of complaint,
35
particularly if there appear to be systemic problems.
36
Amendments relating to the Education Ombudsman Schedule 1
Amendment of the Ombudsman Act 1976 Part 1
Ombudsman Amendment (Education Ombudsman) Bill 2010 No. , 2010 7
(4) A complaint is excluded by this subsection if the complaint is
1
made more than 12 months after the action was taken.
2
(5) Paragraph (2)(b) applies only if the Education Ombudsman starts
3
the investigation no later than 12 months after the action was taken.
4
(6) The Education Ombudsman is not authorised by this Act to
5
investigate action taken by a Minister.
6
(7) The reference in subsection (6) to action taken by a Minister does
7
not include a reference to action taken by a delegate of a Minister,
8
and, for the purposes of this subsection, action will be deemed to
9
have been taken by such a delegate notwithstanding that the action
10
is taken under a power that is deemed by a provision of an
11
enactment, when exercised by the delegate, to have been exercised
12
by the Minister.
13
(8) For the purposes of the application of this Act to or in relation to
14
the Education Ombudsman, action taken by a Department or a
15
prescribed authority is not to be regarded as having been taken by a
16
Minister only because the action was taken by the Department or
17
the prescribed authority in relation to action that has been, is
18
proposed to be, or may be, taken by a Minister personally.
19
19FF Discretion to investigate complaints as Commonwealth
20
Ombudsman or as Education Ombudsman
21
(1) This section applies if a complaint has been made to the Education
22
Ombudsman or the Commonwealth Ombudsman.
23
Education Ombudsman may transfer complaint to Commonwealth
24
Ombudsman
25
(2) Subsection (3) applies if:
26
(a) the complaint was made to the Education Ombudsman; and
27
(b) in the opinion of the Education Ombudsman, it would be
28
more appropriate to deal with, or to continue to deal with, the
29
complaint or part of the complaint in his or her capacity as
30
the Commonwealth Ombudsman.
31
(3) The Education Ombudsman may:
32
(a)
either:
33
Schedule 1 Amendments relating to the Education Ombudsman
Part 1 Amendment of the Ombudsman Act 1976
8 Ombudsman Amendment (Education Ombudsman) Bill 2010 No. , 2010
(i) decide not to deal with the complaint, or part of the
1
complaint; or
2
(ii) if he or she has started to deal with the complaint--
3
decide not to deal further with the complaint, or part of
4
the complaint; and
5
(b) transfer the complaint, or part of the complaint, to the
6
Commonwealth Ombudsman.
7
(4) A complaint that is transferred under subsection (3) is taken to be a
8
complaint that was made to the Commonwealth Ombudsman.
9
Commonwealth Ombudsman may transfer complaint to Education
10
Ombudsman
11
(5) Subsection (6) applies if:
12
(a) the complaint was made to the Commonwealth Ombudsman;
13
and
14
(b) the complaint was made no later than 12 months after the
15
action was taken; and
16
(c) in the opinion of the Commonwealth Ombudsman, it would
17
be more appropriate to deal with, or to continue to deal with,
18
the complaint or part of the complaint in his or her capacity
19
as the Education Ombudsman.
20
(6) The Commonwealth Ombudsman may:
21
(a)
either:
22
(i) decide not to deal with the complaint, or part of the
23
complaint; or
24
(ii) if he or she has started to deal with the complaint--
25
decide not to deal further with the complaint, or part of
26
the complaint; and
27
(b) transfer the complaint, or part of the complaint, to the
28
Education Ombudsman.
29
(7) A complaint that is transferred under subsection (6) is taken to be a
30
complaint that was made to the Education Ombudsman.
31
(8) In forming an opinion under paragraph (2)(b) or (5)(c), the person
32
holding the office of the Commonwealth Ombudsman and of the
33
Education Ombudsman must have regard to the functions and
34
duties of each of those offices.
35
Amendments relating to the Education Ombudsman Schedule 1
Amendment of the Ombudsman Act 1976 Part 1
Ombudsman Amendment (Education Ombudsman) Bill 2010 No. , 2010 9
Notice of transferral to be given to complainant
1
(9) If the Commonwealth Ombudsman or the Education Ombudsman
2
transfers a complaint, or part of a complaint, he or she must give
3
notice of the transfer, in writing, to the complainant.
4
19FG Discretion to transfer complaint
5
(1)
If:
6
(a) the Education Ombudsman forms the opinion that:
7
(i) a complaint that was made to him or her could have
8
been made to another authority established under a law
9
of the Commonwealth, a State or a Territory; and
10
(ii) the complaint could be more conveniently or effectively
11
dealt with by the other authority; and
12
(b) the other authority can deal with the complaint if the
13
Education Ombudsman transfers the complaint to the other
14
authority;
15
the Education Ombudsman may decide not to investigate the
16
complaint, or not to investigate the complaint further, as the case
17
may be, and to transfer the complaint to the other authority.
18
(2) If the Education Ombudsman decides to transfer the complaint, the
19
Education Ombudsman must:
20
(a) do so as soon as is reasonably practicable; and
21
(b) give to the other authority any information or documents that
22
relate to the complaint and that are in the possession or under
23
the control of the Education Ombudsman; and
24
(c) as soon as is reasonably practicable, give the complainant
25
written notice of the transfer.
26
19FH Discretion not to investigate certain complaints
27
(1) This section applies if:
28
(a) a complaint has been made to the Education Ombudsman;
29
and
30
(b) in the opinion of the Education Ombudsman:
31
(i) the complaint is frivolous or vexatious or was not made
32
in good faith; or
33
(ii) the complainant does not have a sufficient interest in the
34
subject matter of the complaint; or
35
Schedule 1 Amendments relating to the Education Ombudsman
Part 1 Amendment of the Ombudsman Act 1976
10 Ombudsman Amendment (Education Ombudsman) Bill 2010 No. , 2010
(iii) an investigation, or further investigation, of the action is
1
not warranted having regard to all the circumstances.
2
(2) The Education Ombudsman may, in his or her discretion:
3
(a) decide not to investigate the action; or
4
(b) if he or she has started to investigate the action--decide not
5
to investigate the action further.
6
Division 3--Powers and duties of the Education
7
Ombudsman
8
19FI Application of other provisions of this Act to the Education
9
Ombudsman
10
(1) Subject to this section, the provisions covered by subsection (3)
11
apply in relation to the Education Ombudsman.
12
(2) Unless the contrary intention appears, the provisions covered by
13
subsection (3) apply as if:
14
(a) a reference in any of those provisions to the Ombudsman
15
were a reference to the Education Ombudsman; and
16
(b) a reference in any of those provisions to any of the following
17
included a reference to an education provider:
18
(i)
a
Department;
19
(ii) a prescribed authority;
20
(iii) a Department or a prescribed authority; and
21
(c) a reference in any of those provisions to an officer included a
22
reference to an officer within the meaning of this Part; and
23
(d) a reference in any of those provisions to a principal officer
24
included a reference to a principal officer within the meaning
25
of this Part.
26
(3) The provisions covered by this subsection are:
27
(a) Part I, other than the following provisions:
28
(i) subsections 3(2) to (6);
29
(ii) subsections 3(6A) to (6D);
30
(iii) subsections 3(7A) and (7B);
31
(iv) subsections 3(9) to (18);
32
(v) sections 3A and 3BA; and
33
(b) Part II, other than the following provisions:
34
Amendments relating to the Education Ombudsman Schedule 1
Amendment of the Ombudsman Act 1976 Part 1
Ombudsman Amendment (Education Ombudsman) Bill 2010 No. , 2010 11
(i) sections 4 and 5;
1
(ii)
subsection
6(1);
2
(iii) subsections 6(4D) to (4H);
3
(iv) subsections 6(6) to (8);
4
(v)
subsection
6(12);
5
(vi) subsections (16) to (21);
6
(vii) sections 6A and 6B;
7
(viii) subsections 8(6) and (7);
8
(ix) subsections 8(10) to (12);
9
(x) sections 8A to 8D;
10
(xi) paragraphs 9(1AA)(ab) and (ac);
11
(xii) paragraphs 9(3)(e) and (f);
12
(xiii) sections 10A to 12;
13
(xiv) sections 14 to 17; and
14
(c) subsection 31(1); and
15
(d) Part IV, other than the following provisions:
16
(i)
section
34;
17
(ii)
subsection
35(3);
18
(iii) subsections 35(7) and (7A);
19
(iv)
section
35AA;
20
(v) subsections 35A(3A) to (3E);
21
(vi) sections 35B and 35C.
22
(4) Each provision of this Act specified in column 1 of the table
23
applies in relation to the Education Ombudsman in accordance
24
with the table:
25
26
Application of Act to Education Ombudsman
Column 1
Column 2
Column 3
Item
This provision of this
Act...
applies in relation to
the Education
Ombudsman as if a
reference in that
provision to...
were a reference to...
1
subsection 6(12)
the Ombudsman (twice
occurring)
the Education
Ombudsman
2 subsection
7A(1) paragraph
5(1)(b) paragraph
19FE(2)(b)
Schedule 1 Amendments relating to the Education Ombudsman
Part 1 Amendment of the Ombudsman Act 1976
12 Ombudsman Amendment (Education Ombudsman) Bill 2010 No. , 2010
Application of Act to Education Ombudsman
Column 1
Column 2
Column 3
Item
This provision of this
Act...
applies in relation to
the Education
Ombudsman as if a
reference in that
provision to...
were a reference to...
3 subsection
8(11) the
Ombudsman
(wherever occurring)
the Education
Ombudsman
4
subsections 8A(1) and
(4)
The Commonwealth
Ombudsman
The Education
Ombudsman
5
subsection 8A(2)
subsection (1) or (1B)
subsection (1)
6
subsection 8A(3)
subsection (1) or (1A)
subsection (1)
7
subsections 8A(6) and
(7)
the Ombudsman
(wherever occurring)
the Education
Ombudsman
8
subsection 8A(8)
Subsection (1) or (1A)
Subsection (1)
9
subsection 8A(8)
the Ombudsman (first
and fourth occurring)
the Education
Ombudsman
10
sections 10A to 12
Ombudsman (wherever
occurring)
Education Ombudsman
11 subsection
11A(4) the
Minister
the Minister and any
other Minister
concerned in the matter
12 subsections
12(1)
and
(3)
by a Department or by
a prescribed authority
by a Department, a
prescribed authority or
an education provider
13
subsection 12(1)
the Department or
authority (second
occurring)
the Department,
authority or education
provider
14 subsections
12(3)
and
(5)
the Department or
authority
the Department,
authority or education
provider
15 subsections
12(4)
and
(5)
section 15
section 19FM
16
subsection 12 (5)
a Department or
prescribed authority
a Department,
prescribed authority or
education provider
17
section 18
section 17
section 19FN
Amendments relating to the Education Ombudsman Schedule 1
Amendment of the Ombudsman Act 1976 Part 1
Ombudsman Amendment (Education Ombudsman) Bill 2010 No. , 2010 13
Application of Act to Education Ombudsman
Column 1
Column 2
Column 3
Item
This provision of this
Act...
applies in relation to
the Education
Ombudsman as if a
reference in that
provision to...
were a reference to...
18 subsection
19(2)
sections
15, 16 and 17
sections 19FM and
19FN
19
subsection 35(6A)
paragraph 6(4A)(e) or
(4D)(e) or paragraph
6(18)(d)
paragraph 6(4A)(e) or
19FG(2)(b)
20 subsections
35(7)
and
(7A)
the Ombudsman (first
and third occurring)
the Education
Ombudsman
21 subsection
35B(2)
(paragraph (a) of the
definition of listed
disclosure method)
Division 2 of Part II
section 19FM, 19FN or
19FO
22 subsection
35B(2)
(paragraph (b) of the
definition of listed
disclosure method)
section 6 or 6A
section 19FF or 19FG
23 subsection
35C(2)
(paragraph (a) of the
definition of listed
disclosure method)
Division 2 of Part 2
section 19FM, 19FN or
19FO
24 subsection
35C(2)
(paragraph (b) of the
definition of listed
disclosure method)
section 6 or 6A
section 19FF or 19FG
1
19FJ Powers of the Education Ombudsman under section 9
2
The Education Ombudsman may exercise his or her powers under
3
section 9 for any of the following purposes:
4
(a) to determine whether he or she may investigate action under
5
this Part;
6
(b) to decide whether or not to investigate action, or to
7
investigate action further, under this Part;
8
Schedule 1 Amendments relating to the Education Ombudsman
Part 1 Amendment of the Ombudsman Act 1976
14 Ombudsman Amendment (Education Ombudsman) Bill 2010 No. , 2010
(c) to start or further the conduct of an investigation under this
1
Part;
2
(d) to prepare a report in relation to an investigation under this
3
Part;
4
(e) if he or she has exercised a power for any of the purposes
5
mentioned in paragraphs (a) to (d)--to ascertain what action
6
has been taken by the person, the Department, the prescribed
7
authority or the education provider, as the case may be,
8
following the exercise of that power.
9
19FK Duty to accord procedural fairness
10
The Education Ombudsman must comply with the rules of
11
procedural fairness when exercising a power under this Act.
12
Example 1: If the Education Ombudsman sets out a critical opinion of a person in
13
a report under section 19FM, he or she must give that person an
14
opportunity to appear and make submissions to him or her (see
15
subsection 8(5)).
16
Example 2: The Education Ombudsman must accord procedural fairness to a
17
person if he or she sets out a critical opinion of the person:
18
(a) in disclosing information, or making a statement, under
19
subsection 35A(1); or
20
(b) in referring to an investigation in a report under section 19FO.
21
19FL Disclosure of identifying information
22
The Education Ombudsman must not, in referring to an
23
investigation in a report under section 19FM or 19FO, disclose the
24
name of a complainant or any other matter that would enable a
25
complainant to be identified, unless it is fair and reasonable in all
26
the circumstances to do so.
27
19FM Education Ombudsman may report to Department,
28
prescribed authority or education provider
29
(1) This section applies if:
30
(a) an investigation under this Act into action taken by a
31
Department, a prescribed authority or an education provider
32
(the investigated body) has been completed; and
33
(b) the Education Ombudsman is of the opinion that the action
34
taken:
35
(i) appears to have been contrary to law; or
36
Amendments relating to the Education Ombudsman Schedule 1
Amendment of the Ombudsman Act 1976 Part 1
Ombudsman Amendment (Education Ombudsman) Bill 2010 No. , 2010 15
(ii) was unreasonable, unjust, oppressive or improperly
1
discriminatory; or
2
(iii) was otherwise, in all the circumstances, wrong; and
3
(c) the Education Ombudsman is of the opinion that:
4
(i) some particular action could be, and should be, taken to
5
rectify, mitigate or alter the effects of the action taken;
6
or
7
(ii) a policy or practice on which the action taken was based
8
should be altered; or
9
(iii) reasons should have been, but were not, given for the
10
action taken; or
11
(iv) any other thing should be done in relation to the action
12
taken.
13
(2) The Education Ombudsman must report accordingly to the
14
investigated body.
15
(3) The Education Ombudsman:
16
(a) must include in the report his or her reasons for the opinions
17
specified in the report; and
18
(b) may also include in the report any recommendations he or
19
she thinks fit to make.
20
(4) The Education Ombudsman may ask the investigated body to give
21
him or her, within a specified time, particulars of any action that
22
the investigated body proposes to take with respect to the matters
23
and recommendations included in the report.
24
(5) The investigated body may give the Education Ombudsman
25
comments about the report.
26
(6) The Education Ombudsman must give a copy of:
27
(a) the report; and
28
(b) any comments given under subsection (5);
29
to:
30
(c) in the case of Department or prescribed authority--the
31
Minister administering the Department or prescribed
32
authority; or
33
(d) in the case of an education provider that is a higher education
34
provider--the Minister administering the Higher Education
35
Support Act 2003; or
36
Schedule 1 Amendments relating to the Education Ombudsman
Part 1 Amendment of the Ombudsman Act 1976
16 Ombudsman Amendment (Education Ombudsman) Bill 2010 No. , 2010
(e) in the case of any other education provider--the Minister
1
administering the Education Services for Overseas Students
2
Act 2000.
3
19FN Minister to table certain reports in Parliament
4
(1) This section applies if:
5
(a) the Education Ombudsman has given a report under
6
section 19FM to an investigated body; and
7
(b) action that is, in the opinion of the Education Ombudsman,
8
adequate and appropriate in the circumstances is not taken
9
with respect to the matters and recommendations included in
10
the report within a reasonable time after the report was given
11
to the investigated body.
12
(2) The Education Ombudsman may request the Minister
13
administering the Education Services for Overseas Students Act
14
2000 to cause copies of the report to be laid before each House of
15
the Parliament.
16
(3) If the Education Ombudsman makes a request under
17
subsection (2), the Minister administering the Education Services
18
for Overseas Students Act 2000 must cause copies of:
19
(a) the report; and
20
(b) any comments given under subsection 19FM(5) before the
21
request was made;
22
to be laid before each House of the Parliament within 15 sitting
23
days of that House after that Minister receives the request.
24
19FO Annual reports
25
(1) The Education Ombudsman has the same powers and duties under
26
this section as the Ombudsman has under subsections 19(1) to (7B)
27
with respect to the submission of reports relating to:
28
(a) his or her operations; and
29
(b) the exercise of his or her powers and the performance of his
30
or her functions.
31
(2) For the purposes of subsection (1), the powers and duties of the
32
Ombudsman do not include his or her powers and duties with
33
respect to reports relating to the Australian Capital Territory.
34
Amendments relating to the Education Ombudsman Schedule 1
Amendment of the Ombudsman Act 1976 Part 1
Ombudsman Amendment (Education Ombudsman) Bill 2010 No. , 2010 17
(3) A report relating to the operations of the Education Ombudsman
1
during a year may be included in a report under section 19 relating
2
to the operations of the Ombudsman during that year.
3
(4) A report relating to the operations of the Education Ombudsman
4
during a year must:
5
(a) identify the number of complaints received by the Education
6
Ombudsman under this Part during that year; and
7
(b) if the Education Ombudsman has investigated action under
8
paragraph 19FE(2)(a)--identify:
9
(i) the number of such investigations started during that
10
year; and
11
(ii) the number of such investigations completed during that
12
year; and
13
(c) if the Education Ombudsman has investigated action under
14
paragraph 19FE(2)(b)--identify:
15
(i) the number of such investigations started during that
16
year; and
17
(ii) the number of such investigations completed during that
18
year; and
19
(d) include details of the circumstances and number of occasions
20
where the Education Ombudsman has made a requirement of
21
a person under section 9 (as that section applies because of
22
sections 19FI and 19FJ) during that year; and
23
(e) include details of the circumstances and number of occasions
24
where the holder of the office of Education Ombudsman has
25
decided under subsection 19FF(3) to deal with, or to continue
26
to deal with, a complaint or part of a complaint in his or her
27
capacity as the holder of the office of Commonwealth
28
Ombudsman during that year; and
29
(f) include details of the circumstances and number of occasions
30
where the holder of the office of Education Ombudsman has
31
decided under subsection 19FG(1) to not investigate a
32
complaint, or to not investigate a complaint further, and to
33
transfer the complaint to the another authority, including the
34
name of the other authority; and
35
(g) include details of recommendations made during that year in
36
reports under section 19FM; and
37
(h) include statistical information about actions taken during that
38
year as a result of such recommendations.
39
Schedule 1 Amendments relating to the Education Ombudsman
Part 1 Amendment of the Ombudsman Act 1976
18 Ombudsman Amendment (Education Ombudsman) Bill 2010 No. , 2010
19FP Education Ombudsman may notify Minister or employer of
1
misconduct
2
(1) This section applies if the Education Ombudsman becomes of the
3
opinion, either before or after completing an investigation under
4
this Act, that there is evidence that a person who is an officer of an
5
education provider has engaged in misconduct.
6
(2) If the Education Ombudsman is of the opinion that the evidence is,
7
in all the circumstances, of sufficient force to justify his or her
8
doing so, the Education Ombudsman may bring the evidence to the
9
notice of:
10
(a) if the person is the principal officer of an education
11
provider--the Minister administering the Education Services
12
for Overseas Students Act 2000; or
13
(b) if the person is an officer of an education provider but not the
14
principal officer of the education provider--the principal
15
officer of the education provider.
16
19FQ Limitation on liability where information or documents
17
provided in good faith or when required to do so
18
(1) A person is neither liable to a proceeding, nor subject to a liability,
19
under an enactment merely because the person, in good faith and in
20
relation to the Education Ombudsman's functions or powers:
21
(a) gives information to the Education Ombudsman (other than
22
in accordance with a requirement under section 9 as that
23
section applies because of sections 19FI and 19FJ); or
24
(b) gives a document or other record to the Education
25
Ombudsman (other than in accordance with a requirement
26
under section 9 as that section applies because of
27
sections 19FI and 19FJ).
28
Note:
For information, documents or other records given in accordance with
29
a requirement under section 9, see subsections 9(4) and (5).
30
(2) To avoid doubt, subsection (1) does not prevent the person from
31
being liable to a proceeding, or being subject to a liability, for
32
conduct of the person that is revealed by the information,
33
document or record given to the Education Ombudsman.
34
(3) This section does not limit section 37.
35
Amendments relating to the Education Ombudsman Schedule 1
Amendment of the Ombudsman Act 1976 Part 1
Ombudsman Amendment (Education Ombudsman) Bill 2010 No. , 2010 19
Division 4--Fees for investigations
1
19FR Fees for investigations
2
(1) The Education Ombudsman may, on behalf of the Commonwealth,
3
charge an education provider fees in relation to an investigation:
4
(a) that was conducted under paragraph 19FE(2)(a), into action
5
taken by the education provider; and
6
(b) that has been completed.
7
Note:
In certain circumstances, an education provider that ceases to be an
8
education provider for the purposes of this Part may still be treated as
9
an education provider (see section 19FB).
10
(2) The amount of a fee:
11
(a) must not be more than the amount that, in the opinion of the
12
Education Ombudsman, represents the costs incurred by the
13
Education Ombudsman in conducting the investigation; and
14
(b) must not be such as to amount to taxation.
15
(3) The Minister administering the Education Services for Overseas
16
Students Act 2000 may make a written determination specifying
17
the total amount of fees that may be charged under this section in
18
relation to investigations that the Education Ombudsman
19
completed during a specified financial year.
20
(4) A determination made under subsection (3) is not a legislative
21
instrument for the purposes of the Legislative Instruments Act
22
2003.
23
(5) If a determination has been made under subsection (3) for a
24
financial year, the total amount of fees charged under this section
25
in relation to investigations that the Education Ombudsman
26
completed during that financial year must not exceed the amount
27
specified in the determination.
28
(6) The regulations may:
29
(a) prescribe one or more methods to be used in working out the
30
amount of a fee; and
31
(b) prescribe the time by which a fee is due and payable.
32
(7) A fee is payable to the Secretary on behalf of the Commonwealth.
33
Schedule 1 Amendments relating to the Education Ombudsman
Part 1 Amendment of the Ombudsman Act 1976
20 Ombudsman Amendment (Education Ombudsman) Bill 2010 No. , 2010
(8) The Secretary must, as soon as practicable, bank any amount
1
received under subsection (7) in an official account within the
2
meaning of the Financial Management and Accountability Act
3
1997.
4
(9)
A
fee:
5
(a) is a debt due to the Commonwealth; and
6
(b) is recoverable by the Secretary, on behalf of the
7
Commonwealth, in a court of competent jurisdiction.
8
(10) In this section:
9
Secretary means the Secretary of the Department responsible for
10
administering the Education Services for Overseas Students Act
11
2000.
12
10 After subsection 34(2A)
13
Insert:
14
(2B) The Education Ombudsman may, either generally or as otherwise
15
provided by the instrument of delegation, by instrument in writing,
16
delegate to a person all or any of his or her powers under this Act,
17
other than his or her powers under sections 19FM and 19FN and
18
his or her powers referred to in section 19FO.
19
11 Subsections 34(3) and (4)
20
Omit "or (2A)", substitute ", (2A) or (2B)".
21
12 Subsections 34(3) and (4)
22
Omit "or Postal Industry Ombudsman", substitute ", Postal Industry
23
Ombudsman or Education Ombudsman".
24
25
Amendments relating to the Education Ombudsman Schedule 1
Amendment of other Acts Part 2
Ombudsman Amendment (Education Ombudsman) Bill 2010 No. , 2010 21
Part 2--Amendment of other Acts
1
Migration Act 1958
2
13 Paragraph 193(3)(c)
3
Omit "the person.", substitute "the person; and".
4
14 At the end of subsection 193(3)
5
Add:
6
(d) a person covered by subsection (1) has not made a complaint
7
to the Education Ombudsman, paragraph 7(3)(b) of the
8
Ombudsman Act 1976 (as that paragraph applies because of
9
section 19FI of that Act) does not apply to the person.
10
Privacy Act 1988
11
15 At the end of paragraph 50(2)(a)
12
Add:
13
(iv) to the Education Ombudsman under the Ombudsman
14
Act 1976; or
15
16 Subsection 50(2)
16
Omit "the Human Rights and Equal Opportunity Commission, the
17
Ombudsman, the Postal Industry Ombudsman or the Public Service
18
Commissioner" (wherever occurring), substitute "the Human Rights and
19
Equal Opportunity Commission, the Ombudsman, the Postal Industry
20
Ombudsman, the Education Ombudsman or the Public Service
21
Commissioner".
22
17 At the end of paragraph 50(3)(a)
23
Add:
24
(iv) to the Education Ombudsman under the Ombudsman
25
Act 1976; or
26