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Business Law

Executive Summary of Federal System of Australia

Australia's Constitution enables Australia with a federal system of Government. Federalism is a form of government in which power is distributed between the federal government and the various governmental states. Australia marked the centennial of the federal Constitution on 1 January 2001. The Subclass 500 is the visa available for international students who wish to study in Australia. To obtain the visa the international students shall satisfy the criteria stipulated in the rules. The federal government of Australia has become successful in retaining international students in Australia. The Committee proposes amending the Migration Act and Regulations to provide for more mobility and independence in dealing with violations of student visa conditions. The federal government of Australia has made certain rules during the Covid19 situation to allow and restrict the international students’ visa as per the severability of the case.

Table of Content

Federalism..

Australia’s Federal System..

Australia’s Immigration System..

International Student Visa -Subclass 500.

The framework of International Student Visa.

Relationship of Federal Government with Retention of International Students on Visa.

Recommendations of the Committee for the Visa Issues of International Student

Coronavirus and International Student’s Visa Issue.

References.

Federalism

Federalism is a form of government in which power is distributed between the federal government and the various governmental states. There are also benefits of federal government systems over unitary systems. They offer more options and variety, allow policy and regulation to be tailored to fit local needs and preferences, and encourage competitiveness and creativity, leading to more economically effective governments. The advantages of preference and competitiveness, nevertheless, should be balanced against the advantages which, in certain situations, emerge from uniformity or economies of scale emerging from one level of government executing a specific role. Therefore, it is necessary to keep under control the distribution of powers and duties between the levels of government and to preserve a degree of stability to ensure that the federal system functions most efficiently (Twomey, 2007).

Australia’s Federal System

One of the world's oldest federations is the Australian federal union, which came into existence in 1901. The creation of the Australian system was not a matter of circumstance, since the drafters of the Constitution of Australia were accustomed to a governing structure under which the imperial parliaments were independent and retained a great deal of influence. This affected many who attended the 1890s Federation Conferences, and they were eager to ensure that their home colonies maintained a governing system and substantial legislative powers (Bennett and Webb, 2007).

Australia marked the centennial of the federal Constitution on 1 January 2001. The Australian federal system has proven both sturdy and versatile throughout its existence, representing the Commonwealth through the trials of stagnation, war, colonial collapse, and financial rebuilding. The constitutional framework was established via the High Court's analysis and public opinion through referendums, as well as the continuing intergovernmental affairs system. Through the policy of nation-building, there has been a general extension of Commonwealth control, but the states remain substantially strong, albeit economically reliant on the Commonwealth. The challenges facing the Commonwealth in the new century are not supposed to be internal or political, but tactical and financial, considering the structural and popular success of Australian federalism: specifically, how a small middle power can face the difficulties of globalization and stability from a place of comparative isolation akin to Asia in the southern Pacific (Galligan and Wright, 2002).

Allegations are also made that federalism is an old-fashioned structure that in the new world is not efficient, requiring too many branches of government and too much repetition. Correlations worldwide indicate that it is not the truth. Of the G8 nations (the nations with the world's eighth-largest economies), 4 are federal states, 7 have at minimum 3 levels of government, and all nevertheless tend to perform vigorously on a global scale. For the past 50 years, federations have continuously out-performed economically unitary states. The more federation becomes decentralized, the higher the results. The study estimated that federalism has raised Australia's wealth by $4,507 per head in 2006, and may have raised that number by another $4,188 or more.

Federalism provides major benefits for Australia:

  1. Safety of the person by regulation of power concentration
  2. Alternatives and assortment 
  • Policies tailoring to suit local demands
  1. to contend with other territories, incentives to improve and reform 
  2. Rewards for innovation and experimentation
  3. Greater policy inspection as a consequence of the need to establish coordination (Withers and Twomey, 2007).

Australia’s Immigration System

In the last twenty years, the immigration system in Australia has experienced major changes. Main improvements entail shifts in the Migration Program's orientation from family migration to professional migration, and from permanent migration to long-term temporary migration in the overall immigration program. Australia's visa policy has experienced a duration of a significant increase in overseas student entries in light of these two improvements. In fact, by 2007, Australia reported 11% of the foreign student market and had witnessed a 3 fold rise in student figures over the past 10 years (Spinks and Koleth, 2016).

International Student Visa -Subclass 500

The latest reforms have lowered student visa numbers from 7 to just 1, the Student Visa (subclass 500). There are currently 7 streams under 1 visa instead of separate visas for various forms of overseas students: university education; post-graduate study; Doctor; education institutions; individual ELICOS; international relations or defense; and non-award. There is also a special student guardian visa, but this brief guide is beyond the reach of these students.

In the field of higher education and postgraduate studies, international students enrolled in the higher education sector are mainly given student visas.

The Migration Regulations,1994 mandate applicants to receive a student visa for:

  • Full-time enrolment in the approved CRICOS course (i.e. a course approved to be offered to overseas students) [section 500.211]
  • Have enough money to aid self living in Australia (section 500.214)
  • Appropriate life care coverage (section 500.215)
  • Be a 'true transient entrant' with the purpose of returning home after study (section 500.212); &
  • Satisfy specifications for the English language (section 500.213) (Ferguson and Sherrell, 2019).

The international student with the Subclass 50 visa can: 

  • Enroll in a qualified study course in Australia
  • Traveling to and from Australia
  • Working up to 40 hours every 2 weeks after the start of the course (Home Affairs, n.d.).

The Framework of International Student Visa

To overseas students seeking to study in Australia, there are actually 7 separate visa subclasses, based on the form of study to be done. Each visa subclass may have very different eligibility requirements, but in general, applicants must have been admitted into a licensed course provided by an educational or training provider that is on the CRICOS in order to apply for a student visa. Applicants must also satisfy budgetary and English requirements, which differ based on the subclass of visas and the standard of visa examination included. International students should also satisfy the personal health and character criteria common to all visa applicants and, during their stay in Australia, must retain health insurance.

Student Visa Classification Thresholds are an immigration risk indicator for students from different countries across each field of education. The student visa policy currently has 3 classification stages, with assessment level 1 reflecting the lowest risk and assessment level 3 being the highest. The higher the degree of evaluation, the tougher the qualifying requirements for obtaining a visa. The student program in Overseas is an unrestricted, demand-driven program. This implies that the federal government of Australia doesn't put certain goals, nor does it impose any limits on the number of visas available, and the level of visa grants is determined solely by the number of applicants applying for a student visa and meeting the requirements. According to figures released by the then Department of Immigration and Citizenship (DIAC), the quantity of student visa holders in Australia rose at an annual average rate of 13.9% between 2001 and 2009, hitting a total of 386,523 students visa holders in the twelve months ending June 2009. (Spinks and Koleth, 2016).

Relationship of Federal Government with Retention of International Students on Visa

By government declarations and key policy initiatives from the late 1990s federal governments have articulated a determination to maintain qualified overseas students with challenging talents, thus enabling those individuals to make the transition from transient to lifelong settling through the Migration Program's professional route. Such developments led to the increasingly rising influx of people moving to Australia to apply for a temporary job or research visas and permanent onshore residency. In fact, about 40% of visas issued in the professional migration program went to temporary migrants who were already in Australia by 2007-08, usually overseas students and visa holders of Business (Long Stay) (subclass 457). The percentage had risen much higher by 2012-13, with about 57% of permanently eligible migration visas flowing to applicants who were still in Australia.

Demographers observed that 'Australian immigration policy has encouraged the development of the education sector by supplying those actively completing courses in high demand areas with the alternative of permanent settlement. Scholars, parliamentarians, and other observers have argued, in turn, that the prospect of achieving permanent settlement in Australia The development of the vocational education and training ( VET) industry, along with the emphasis added to trade skills from 2005, led to a significant rise in students applying for VET courses. The number of students driving this development in the VET sector came from India. In 2009, the Immigration Department announced that the number of Indian student visa holders enhanced by 44.6% by which India became the top country related to international students going to Australia (Spinks and Koleth, 2016).

Recommendations of The Committee for The Visa Issues of International Student

The Committee proposes amending the Migration Act and Regulations to provide for more mobility and independence in dealing with violations of student visa conditions.

Another main concern with the student visa regime, in the view of the committee, is improper enforcement and management of the Migration Act and Regulations. Indeed, the Committee is of the opinion that the questions posed with respect to the handling of student visa holders are a clear illustration of DIMIA's larger cultural issues. The committee notices the evidence from DIMIA that they are trying to resolve these issues and encourages DIMIA to continue its efforts in this field. Ultimately, the Committee states that the ESOS Assessment Report's findings can also help resolve many of the problems and questions posed with regard to student visas. Hence, the Committee suggests that the ESOS Assessment Study findings strive to be adopted on a high priority.

The committee suggests that the findings of the Evaluation of the Education Services for Overseas Students Act 2000 ought to be carried out on a top priority. (APH, n.d.).

Coronavirus and International Student’s Visa Issue

Coronavirus (COVID-19) has had major impacts on almost every sector. The Department of Education of the Australian Government partners with institutions, territories, and states to introduce steps to control the danger of coronavirus in the education field.

Exemptions for students in grades 11 and 12

On February 22, the Australian Federal Government declared restricted case-by-case waivers for Year 11 and 12 (and corresponding guardians) foreign students from China who possess a valid student visa, enabling them to enter Australia to begin the academic year, in which they can satisfy public health criteria.

  • This is in recognition of the significance of the remaining two academic years.
  • Exemptions shall be called case by case. The Department of Education, Skills, and Employment is managing the procedure.

The effect of travel restrictions on holders of student visas:

  • Upon arrival in Australia some students had their visa canceled. All students involved were and will continue to be informed.
  • The Department has made statutory instruments to regularise the status of a select number of Australian students and tourists whose visas were revoked the day after the travel restrictions began upon arrival in Australia.
  • Identical methods have been designed to regularise and even limited groups of students and tourists returning overseas after their visas have been revoked.
  • If a student has tried to fly to Australia, student visas will be revoked. 

What has been done by the Department

  • Visa processing persists. The Department recognizes applicants for student visas that fulfill all of the visa criteria so they can travel as soon as travel limits are removed.
  • Many student visa applicants are unable to fulfill wellness, personality and English language requirements as main programs are still unavailable due to closures in China.
  •  Identical methods have been designed to regularise and even limited groups of students and tourists returning overseas after their visas have been revoked. 
  • If a student has tried to fly to Australia, student visas will be revoked. 

What has been done by the Departments

  • Visa processing persists. The Department recognizes applicants for student visas that fulfill all of the visa criteria so they can travel as soon as travel limits are removed.
  • Many student visa applicants are unable to fulfill wellness, personality and English language requirements as main programs are still unavailable due to closures in China.
  • If a student has been away from mainland China for more than 14 days after 1 February 2020, they can travel to Australia.

Unable to extend student visas

  • If a student wants to prolong his / her stay in Australia, he/she must apply for a new visa (such as a new student visa or tourist visa).
  • The statutory provision can not be exercised by the Government.
  • If a student needs more time to finish their studies in Australia, they just need to apply for a new student visa at least six weeks but not more than three months previous to their original student visa (Seekvisa, n.d.).

References for Federal System of Australia

APH. (n.d.) Chapter 10- Student Visas. Retrieved from https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Completed%20inquiries/2004-07/migration/report/c10

Bennett, S., & Webb, R. (2007). Chronology of Australian Federalism. Chronologies Online. Retrieved from https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/Publications_Archive/online/AustFederalism

Ferguson, H., & Sherrell, H. (2019). Overseas students in Australian higher education: A quick guide. Parliamentary Library Research Papers Series, 20. Retrieved from https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1819/Quick_Guides/OverseasStudents

Galligan, B., & Wright, J. S. (2002). Australian federalism: A prospective assessment. Publius: The Journal of Federalism, 32(2), 147-166.

Home Affairs. (n.d.). Sub Class Student Visa. Retrieved from https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/student-500#About

Seekvisa. (2020). Travel restrictions to Australia affecting international education. Retrieved from https://www.seekvisa.com.au/travel-restrictions-to-australia-affecting-international-education/

Spinks, H., & Koleth, E. (2016). Overseas students: immigration policy changes 1997–2015. Social Policy Section. Commonwealth Parliament of Australia, Parliamentary Library. Retrieved from https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1516/OverseasStudents

Twomey, A. (2007). The Reform of Australia's Federal System. Sydney Law School Research Paper. Retrieved from https://ssrn.com/abstract=1033180.

Withers, G., & Twomey, A. (2007). Australia's federal future: Delivering growth and prosperity. A report for the Council for the Australian Federation. Retrieved from https://www.researchgate.net/publication/303407603_Australia's_Federal_Future

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