Changes made to the draft rules for the International Student Contract Dispute Resolution Scheme Following Sector Consultation Sections of the draft rules for consultation Original Proposals Changes made following sector consultation Concerns/Rationale for change N/A N/A The DRS should have a section to state that the scheme is free to all users. Charging a fee disadvantage students and may create barriers to accessing this scheme. The DRS will be reviewed in 2 years’ time. 3(1) Definition of “school” Delete this definition. “school” is not used in the rules, and should be covered by “providers”. 4(2) The claim may be made in writing or orally. Add: Claims made orally will be recorded by the DRS Operator in writing and confirmed by the claimant. Sector feedback questions how oral claims should be treated, and suggests this clarification. 5 Who may make a claim: An enrolled international student, a former international student, or a person who intends to be, or is in the process of enrolled by the provider as an international student. An enrolled international student, a former international student, or a person who intends to be, or is in the process of being enrolled by the provider as an international student. Parents or legal guardians may make a claim on behalf of a student under the age of 18. Students under 18 may need the help of parents or legal guardians to make a claim on behalf of them. 6 As soon as is reasonably practicable after a claim is made, the DRS operator must give written notice to the student and the provider on its decision to accept the dispute or not. As soon as is reasonably practicable after a claim is made, The DRS operator must give written notice to the student and the provider on its decision to accept the dispute or not within 10 working days. It is suggested that we need a reasonable timeframe for informing students and providers about the decision of the DRS Operator.
disputing parties but adjudication is not. In the course of investigating or resolving a dispute via adjudication, the DRS Operator may report systemic issues or serious misconduct by a provider to the Code Administrator, education quality assurance agencies or government agencies as relevant. The adjudicator is not by the rules of evidence or previous decisions. The adjudicator is not bound to give effect to strict legal obligations, forms or technicalities. exclusion of legal representatives would only disadvantage students. Instead, disputing parties should be made of the conditions of entering this scheme, as listed in the new proposed section. 10(1) The DRS Operator may decide to use any 1 or more of the methods to resolve a dispute: Negotiation; Conciliation or medication; Arbitration. The DRS Operator may decide to use any 1 or more of the methods to resolve a dispute: Negotiation; Conciliation or Mediation; Arbitration Adjudication. To be consistent throughout the as indicated earlier in relation to 8(b), it is best that the same set of terms are used to refer to the processes in the DRS rules. 10(4) The DRS Operator (a) is not bound by the rules of evidence or previous decisions; and (b) is not bound to give effect to strict legal rights, obligations, forms or technicalities. The DRS Operator (a) is not bound by the rules of evidence or previous decisions; and (b) is not bound to give effect to strict legal rights, obligations, forms or technicalities. The Human Rights Commission considered 10(4)(b) went too far, but the policy intent is that the law should be followed broadly but cases should not be dismissed due to paperwork errors and the like. Removing the reference to “legal rights” should suffice.
16 Representation by a professional adviser such as a lawyer will only be permitted with the agreement of all parties or if the Operator considers the party is a corporation or is unable to present their case adequately. Delete. Four respondents thought any party should be free to engage a lawyer without the agreement of the other party. In reality, large tertiary providers often have in-house access to professional or legal advice and so limiting the involvement of lawyer will only disadvantage students. 18 Agreed settlement (1) The DRS operator must attempt to assist the parties to a dispute to reach an agreed settlement. Agreed settlement by negotiation or mediation (1) The DRS operator must attempt to assist the parties to a dispute to an agreed settlement by negotiation or mediation. This section is about voluntary/consensual settlement via negotiation and mediation. 19(1) The adjudicator must give the parties notice of proposed decision on the basis of information held by the operator, including any recommendations made to the parties by the mediator and any submissions on those recommendations by the parties. The adjudicator must give the parties notice of proposed decision on the basis of information held by the operator, including any recommendations made to the parties by the mediator and any submissions on those recommendations by the parties. Mediation is a facilitative and neutral process which does not involve making recommendations to disputing parties. Anything discussed during mediation is confidential to parties and cannot be used by the adjudicator. N/A N/A The DRS rules should have a section to state that adjudication decisions could be modified by the court, as stipulated in the Education Act 1989. Several respondents commented that there is no appeal right. Appeal right needs to be balanced against the need for finality and the timeliness of decision-making. The Act does provide for the court to modify adjudication decisions if they are manifestly unreasonable. 21 Remedies under final decision: An adjudicator in a dispute may direct the following remedies: That the provider pay the student claimant Remedies under final decision adjudication decision: An adjudicator in a dispute may direct the following remedies: This section attracts the highest objection rate of 44% - 11 respondents objected to this ceiling of compensation, saying that the monetary jurisdiction is equivalent to the District Court without the same rules of