Consultation on the draft International Student Contract Dispute Resolution Scheme Rules. Summary of written submissions

Transcription

1 Consultation on the draft International Student Contract Dispute Resolution Scheme Rules Summary of written submissions Consultation Period: 28 July 31 August 2015

2 Contents Executive Summary... 4 Abbreviations... 5 Method of Analysis... 6 Profile of respondents... 7 Type of respondent... 7 Geographic distribution of respondents... 8 Fees for using the scheme... 9 Which option do you prefer?... 9 Part 1: Dispute Resolution Process Clause 4: How to initiate dispute Clause 5: Who may make claim Clause 6: Initial response of DRS operator to dispute Clause 7: When DRS operator may decline to accept dispute Clause 8: General approach to resolving disputes Clause 9: DRS operator must ensure that claimant is aware of other options Clause 10: How disputes may be resolved Clause 11: Disputes may be combined Clause 12: DRS operator may obtain information necessary for resolution of dispute Clause 13: Failure to supply information Clause 14: Use of information Clause 15: DRS operator must keep parties informed Clause 16: Representation of parties Clause 17: Mediator or adjudicator must be independent of parties to dispute Clause 18: Agreed settlement Clause 19: Decision by adjudicator Clause 20: When final decision binding Clause 21: Remedies under final decision Clause 22: Termination of dispute resolution process Part 2: Administration of DRS scheme Clause 23: Functions of DRS operator Clause 24: Powers of DRS operator Clause 25: DRS operator may extend time frames Clause 26: Appointees of DRS operator

3 Clause 27: DRS operator must ensure accessibility of scheme Clause 28: DRS operator may publish case studies Clause 29: DRS operator must report systemic issues etc Clause 30: Annual report Clause 31: Monitoring operation of scheme Open Comments

4 Executive Summary 1. The Education Amendment Act 2015 authorised the establishment of a new International Student Contract Disputes Resolution Scheme (the DRS) and a new Code of Practice for the Pastoral Care of International Students (the Code) to ensure international students get the support and care they need while they are in New Zealand. 2. In July 2015 the Ministry of Education (the Ministry) released the Draft International Student Contract Dispute Resolution Scheme Rules, the Draft Code of Practice for the Pastoral Care of International Students, a consultation document, and two documents highlighting the proposed changes and questions and answers. 3. During August 2015 the Ministry ran a series of seven consultation workshops in Auckland, Wellington, Christchurch and Dunedin, four webinars, and a discussion session at the New Zealand International Education Conference in Hamilton on the proposed new Code and DRS. A summary of these workshops is reported separately. 4. Between 28 July 2015 and 31 August 2015 written submissions on the DRS were invited via an online survey through SurveyMonkey, and by . This report summarises 28 online submissions received on the DRS SurveyMonkey and four ed submissions. It also includes seven comments made on a separate SurveyMonkey undertaken on the Code which referred to specific clauses or issues relating to the DRS % of submissions were made on behalf of a school, 10% were from a Private Training Establishment (PTE), and 12% from an Institute of Technology or Polytechnic (ITP) or university, 9% were from sector bodies and 6% indicated other. The remaining 19% did not identify as submitting on behalf of an organisation. 6. In general submissions received on the DRS are largely supportive. Comments generally relate to drafting changes, requests for clarification or suggestions for improvement under the proposed clauses. 7. Key issues identified by respondents on specific clauses of the DRS include: Clause 21, particularly 21(a), which specifies that a provider may be required to provide the student claimant up to $200,000 compensation Clause 4(2), respondents queried the ability for claims to be made orally Clause 5(b), respondents queried the coverage of former students under the DRS Clause 10(4), respondents raised concerns that DRS operators were offered too much discretion regarding effect given to strict legal rights, precedent and rules of evidence Respondents queried the minimisation of the involvement of lawyers in the DRS. 8. General issues identified by respondents include: A belief that the DRS would benefit from further consultation and a request for a reasonable implementation time frame. Six respondents proposed a new implementation date of 1 July Confusion over the jurisdiction of the DRS and a request for more clarity regarding what situations would be covered by the scheme and how it worked in relation to situations dealt with by the Code Administrator or under the Education Act. 4

5 Abbreviations Code DRS HRC IEAA ISANA NZ SIEBA Code of Practice for the Pastoral Care of International Students International Student Contract Dispute Resolution Scheme Human Rights Commission International Education Appeal Authority International Education Association New Zealand Inc Schools International Education Business Association 5

6 Method of Analysis 9. This report summarises 28 online submissions received on the DRS SurveyMonkey and four ed submissions. It also includes seven comments made on a separate SurveyMonkey undertaken on the Code which referred to specific clauses or issues relating to the DRS. 10. The SurveyMonkey on the DRS asked respondents to indicate their support, support with caveat or objection to each clause of the DRS. Respondents were also provided an opportunity to comment on each clause as well as providing more general feedback in an open ended section at the end of the survey which invited further comments. 11. The report summarises responses received on each clause of the DRS and concludes with general comments on the DRS scheme. The comments on each clause have been grouped according to argument and summarise the opinions expressed in submissions, the online SurveyMonkey on the DRS and comments on the DRS expressed in the online SurveyMonkey on the Code. 12. All graphs used in the submissions analysis, with the exception of that included in the profile of respondents, relate only to the online SurveyMonkey on the DRS. 13. Because the comments on each clause summarise the opinions expressed from three different sources, the number of comments on each clause does not directly correlate to the number of respondents measured in the accompanying graphs. 6

7 Profile of respondents Type of respondent submissions were received on SurveyMonkey and four ed submissions. 19% 13% Primary and/or Intermediate school Secondary school Private Training Establishment 6% 3% 9% 31% Institute of Technology or Polytechnic Sector body University Other 9% 10% Individual 15. The two respondents who indicated other were as follows: A group of private training establishments in common ownership A professional membership organisation of dispute resolvers (Resolution Institute) 16. Sector bodies include: The Human Rights Commission (HRC) Schools International Education Business Association (SIEBA) International Education Association New Zealand Inc (ISANA NZ) 7

8 Geographic distribution of respondents 17. All 28 respondents on SurveyMonkey answered this question. Of note is that 61% of the respondents were from the Auckland region. 3% 3% 4% 4% Auckland 11% Manawatu-Wanganui Wellington Waikato Canterbury 14% 61% West Coast Bay of Plenty 8

9 Fees for using the scheme Which option do you prefer? Option 1: Making the scheme free to all users Option 2: Making the facilitation and mediation services for voluntary settlement free, but charging a fee for adjudication services if any party requests such a service Option 3: Charging a small fee for the facilitation and mediation services for voluntary settlement, and a higher fee for adjudication services if requested respondents on SurveyMonkey answered this question. Of these, 39.1% (9 respondents) preferred making the scheme free for all users, 34.8% (8 respondents) preferred making the facilitation and mediation services free, but charging a fee for adjudication services, and 26.1% (6 respondents) preferred charging a small fee for the facilitation and mediation services and a higher fee for adjudication services. 19. There were ten comments on SurveyMonkey relating to fees. 20. Seven respondents supported a fee being charged to prevent frivolous or false cases being referred to the scheme. One secondary school believed it possible that the scheme may become flooded with complaints about homestay if a fee was not charged. 21. Three respondents (including ISANA NZ and the Resolution Institute) recommended careful consideration of the level at which fees should be set so as not to inhibit access to the scheme. ISANA NZ preferred to make facilitation and mediation services free, charging a fee for adjudication services, stating fees should be set at a level so as not to deter making of complaints Resolution Institute preferred to make the scheme free to all users. They raised concerns that fees could act as a barrier to utilising dispute resolution services, meaning that disputes are raised later when positions have become more entrenched. Further, they argued that charging fees to one party may impact the perception of neutrality and therefore the success of mediation 22. One respondent questioned in what circumstances of mediation, where an agreement between two parties exists, would costs apply. 9

10 Part 1: Dispute Resolution Process Clause 4: How to initiate dispute 4 How to initiate dispute (1) A person who is a student claimant may initiate a dispute against a provider by making a claim under the scheme to the DRS operator. (2) The claim may be made in writing or orally. (3) The DRS operator must provide reasonable support (such as interpretation support) to enable a student claimant to make a claim respondents on SurveyMonkey answered this question. 66.7% (10 respondents) supported clause 4, while 20% (3 respondents) supported with caveat and 13.3% (2 respondents) objected. 24. There were eight comments on this clause. 25. Five respondents disagreed with clause 4(2) and thought all claims should be made in writing and not orally. One respondent believed that oral claims could lead to the scheme being inundated with queries or complaints, while another raised concerns over the lack of document trail. 26. Two respondents made suggestions as to how oral claims under clause 4(2) should be treated. One respondent thought any oral claims received should be put in writing by the DRS operator, who would then confirm the claim in writing to alleviate any confusion as the claim proceeded. The other respondent suggested oral claims were recorded. 27. One felt that in the first instance the student claimant must show they have attempted to resolve the issue with the provider, providing evidence that they have done so to the DRS operator before the claim proceeds. 28. One thought that clause 4(3) should replace must with may to align with clause 36 of the Code. 29. One respondent, a primary/intermediate school mentioned that they had never had an issue dealt with outside of their own internal process and procedures. 10

11 Clause 5: Who may make claim 5 Who may make claim Any of the following persons may make a claim in relation to a provider: (a) an international student enrolled by the provider: (b) a former international student enrolled by the provider: (c) a person who intends to be, or is in the process of being, enrolled by the provider as an international student respondents on SurveyMonkey answered this question. 40% (6 respondents) supported clause 5, while 40% (6 respondents) supported with caveat and 20% (3 respondents) objected. 31. There were ten comments on SurveyMonkey relating to clause 5 and one submission. 32. Six respondents raised the issue of putting a time limit in place for claims made by former students under clause 5(b). One respondent argued for more specifics regarding coverage of former students, including identifying the scope of the dispute that can be covered and whether they would be covered beyond the refund policy of the school. 33. Three respondents disagreed with clause 5(c) and thought that students who intend to be or who are in the process of being enrolled should not be able to make a claim. 34. One thought that the parents of a child under 18 should be able to make a claim on the student s behalf. 35. One respondent felt only a student who was currently enrolled should be able to make a claim. Similarly, a second respondent thought that a student should only be able to make a claim before terminating their enrolment or on termination of their enrolment. 11

12 Clause 6: Initial response of DRS operator to dispute 6 Initial response of DRS operator to dispute As soon as is reasonably practicable after a claim is made, the DRS operator must give written notice to the student claimant and to the provider that (a) acknowledges receipt of the claim and its nature; and (b) states either that the dispute is accepted, or that the dispute is not covered by the DRS and explains why; and (c) if appropriate, directs the student claimant to the code administrator or other appropriate authorities respondents on SurveyMonkey answered this question. 93.3% (14 respondents) supported clause 6, while 6.7% (1 respondent) supported with caveat. There were no objections. 37. There was one comment on SurveyMonkey relating to clause One respondent thought that in order to make an informed initial response, the DRS operator would first have to give consideration to clause 7. The respondent provided the example of first checking with the provider that the dispute is not already being handled internally or that a settlement has been reached. 12

13 Clause 7: When DRS operator may decline to accept dispute 7 When DRS operator may decline to accept dispute The DRS operator may decline to accept a dispute for resolution under the scheme if the DRS operator considers that the scheme does not cover the dispute for 1 or more of the following reasons: (a) the provider has not been given an opportunity to respond: (b) the dispute is being addressed in another forum: (c) the dispute would be more appropriately dealt with by a court, tribunal, or other authority: (d) (e) (f) (g) the dispute has been previously dealt with under the scheme: a reasonable settlement offer has already been made: the claim is frivolous or vexatious: given the age of the dispute, it is no longer feasible to gather sufficient evidence or other information for resolution of the dispute under the scheme respondents on SurveyMonkey answered this question. 75% (12 respondents) supported clause 7, while 18.8% (3 respondents) supported with caveat and 6.3% (1 respondent) objected. 40. There were six comments on this clause. 41. Two respondents (including SIEBA) felt the DRS operator could not make a well informed decision to decline a dispute without having first made investigations. 42. Two respondents raised issues relating to the internal processes of the provider. One respondent questioned whether the provider s internal processes would have to be exhausted before a dispute would be accepted and the other thought clause 7(b) should be amended to specifically include a provider s internal processes. 43. One respondent proposed the DRS operator should also be permitted to decline accepting the dispute once the claimant s documents have been reviewed. 44. One respondent felt the Limitations Act should be referenced when DRS operators considered the age of the dispute (clause 7(g)). 13

14 45. One respondent suggested three additional grounds. These included: A clause specifying that if any written agreement exists between the two parties, the DRS operator should only accept the claim if the written agreement breaches regulations The DRS operator should not accept a dispute where there is no relevant written supporting evidence submitted The DRS operator should not accept a dispute when the appropriate documents or agreement has expired. 14

15 Clause 8: General approach to resolving disputes 8 General approach to resolving disputes The DRS operator must consider and deal with a dispute in a timely, cost-effective, and fair manner, and, in particular, in a way that (a) encourages the parties to work towards a mutually agreed solution; and (b) maximises the use of non-arbitral or non-adversarial measures to resolve the dispute, that is, that favours facilitation and mediation before adjudication; and (c) takes the views of the parties into account in the decision on measures to resolve the dispute; and (d) minimises the involvement of lawyers or other professional advisers as representatives; and (e) (f) is consistent with the principles of natural justice; and is on a without prejudice basis respondents on SurveyMonkey answered this question. 88.2% (15 respondents) supported clause 8, while 5.9% (1 respondent) supported with caveat and 5.9% (1 respondent) objected. 47. There were five comments on this clause. 48. Three respondents (including SIEBA) expressed serious concern over clause 8(d) which minimises the involvement of lawyers and other professional advisors and representatives. The following points were made: This was a serious removal of rights that would have an impact on both students and schools It was unclear what particular aspect of the involvement of lawyers and other professional advisors was being minimised Schools are required by insurers to seek out professional legal advice for situations that may arise under the DRS and the removal of this advice would be detrimental to any settlement process Legal representation was a right and as such the principles of natural justice were not being adhered to in the DRS 15

16 Minimisation of the involvement of professional advisors and a less prescriptive code would lead to a higher expectation on providers to make their own interpretation of the code and regulations 49. One respondent (ISANA NZ) thought that there should be options for support identified within the process for an international student making a complaint. 50. One respondent suggested the best approach to resolving disputes would be to focus on the written agreement between parties, claiming this would provide protection for all parties involved. The respondent thought the process should be based on fairness and natural justice and stressed that the decision should not be bias, claiming that more often than not, education providers are always in the losing position. 16

17 Clause 9: DRS operator must ensure that claimant is aware of other options 9 DRS operator must ensure that student claimant is aware of other options The DRS operator must ensure that a student claimant is aware of the conditions of entering the scheme as compared with other dispute resolution options, such as a court or tribunal, for example, that the law is not strictly applied and the exclusion of legal representatives respondents on SurveyMonkey answered this question. 81.3% (13 respondents) supported clause 9, while 18.8% (3 respondents) supported with caveat. There were no objections. 52. There were three comments on this clause. 53. One respondent (the HRC) recommended that clause 9 be amended to explicitly require that a DRS operator ensures that a student claimant is aware of their right to proceed with a complaint to the Human Rights Commission, without prejudice to the DRS process, should their complaint raise an allegation of unlawful discrimination. 54. One respondent thought that both students and education providers should be made aware of the best approach to make the DRS advantageous for both parties. 55. One respondent (Resolution Institute) thought that clause 9 and clause 8(d) provided contradictory advice. While clause 8(d) refers to minimising the involvement of lawyers and other professional advisors, clause 9 refers to the exclusion of legal representatives. 17

18 Clause 10: How disputes may be resolved 10 How disputes may be resolved (1) The DRS operator may decide to use any 1 or more of the following methods to resolve a dispute: (a) negotiation: (b) (c) conciliation or mediation: arbitration. (2) The DRS operator may decide the procedures to be followed under the method selected, consistent with these rules. (3) The DRS operator, including a mediator or an adjudicator, (a) must act in light of what is fair and reasonable in all the circumstances; and (b) must have regard to the law, the relevant good practice, the code, and other Government policies. (4) However, in an adjudication, the DRS operator, including an adjudicator, (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. (5) The DRS operator may direct the parties to a dispute to other appropriate authorities for assistance or interventions respondents on SurveyMonkey answered this question. 76.5% (13 respondents) supported clause 10, while 5.9% (1 respondent) supported with caveat and 17.7% (3 respondents) objected. 57. There were nine comments on this clause. 58. Five respondents (including the HRC and SIEBA) raised concerns with clause 10(4). The following points were made: It would be challenging to ensure natural justice and sound decisions were made under clause 10(4) 18

19 There was particular concern that an adjudicator would not be bound by the rules of evidence or previous decisions. One respondent described this as incongruous given the penalties that could be imposed on institutions for a breach Queries over whether there would still be appeal rights or the ability for judicial review Concern that the DRS was designed to investigate contractual matters, but were not subject to contract law The HRC thought clause 10(4)(b) went too far and was inconsistent with clause 10(3)(b). The HRC recommended clause 10(4)(b) be deleted and considered the provisos set out under clauses 10(2) and 10(4)(a) are sufficient to ensure that DRS adjudications do not become overly legalistic. 59. Three respondents (including the HRC and the Resolution Institute) proposed the term arbitration be replaced with adjudication in clause 10(1)(c). 60. One respondent (Resolution Institute) found clause 10 inconsistent with clause 8(b) and 18(1) which require a facilitative approach prior to arbitration and recommended a facilitative approach except where a mediator determines the case is not suitable for mediation. 61. One respondent (ISANA NZ) thought the process needed to identify options of support for an international student making a complaint. 19

20 Clause 11: Disputes may be combined 11 Disputes may be combined The DRS operator may combine disputes for single resolution when the DRS operator considers that it is sensible to do so respondents on SurveyMonkey answered this question. 80% (12 respondents) supported Clause 11, while 13.3% (2 respondents) supported with caveat and 6.7% (1 respondent) objected. 63. There were three comments relating to clause One respondent thought that every individual dispute will have a point of difference and thus should be considered on their own facts/merits. 65. One respondent thought there should be more detailed information clarifying a situation where a dispute may be combined. 66. One respondent thought that disputes should only be combined if the issues were completely one and the same. 20

21 Clause 12: DRS operator may obtain information necessary for resolution of dispute 12 DRS operator may obtain information necessary for resolution of dispute (1) For the purpose of obtaining information necessary for the resolution of a dispute, the DRS operator may make any inquiries that are fair and reasonable in the circumstances. (2) A party to a dispute must supply any information requested by the DRS operator unless (a) the supply of the requested information would breach an obligation of confidence owed to a third person who has refused consent to the supply of the information; or (b) the information is subject to legal professional privilege; or (c) the party does not have the information or it is not within its control. (3) In requesting information, the DRS operator may specify a reasonable time within which the party concerned must supply the information. (4) As soon as practicable after receiving a request by the DRS operator for information and in any event within any time specified in the request, a party must (a) comply with the request; or (b) object to supplying the information and give reasons why the party cannot or should not supply it respondents on SurveyMonkey answered this question. 73.3% (11 respondents) supported clause 12, while 26.7% (4 respondents) supported with caveat. There were no objections. 68. There were six comments on this clause. 69. Two respondents stressed that requests for information under clause 12(1) should be reasonable. One respondent felt that the information provided should be reasonably available in regards to cost, time and the specified time frame. Another respondent thought that fairness required both parties to comply with documentary requirements and was wary of the use of verbal evidence by one party to justify claims. 70. Two respondents thought clause 12 should comply with Privacy Act legislation. 71. One respondent (Resolution Institute) thought that clauses 12,13 and 14 applied to an adjudication approach more than to mediation. 21

22 72. One respondent thought that clause 12(4) should specify a time requirement, rather than leaving it to the discretion of the DRS operator. 73. One felt that any inquires and information provided should be disclosed to all parties involved. 74. One respondent suggested the inclusion of recourse so independent opinions can be sought. 22

23 Clause 13: Failure to supply information 13 Failure to supply information (1) This rule applies where a party to a dispute fails to comply with a request for information by the DRS operator and none of the exceptions in rule 11(2) applies. (2) If the party is the student claimant, the DRS operator may decline to continue consideration of the dispute. (3) Whoever the party is, the DRS operator may proceed to resolve the dispute on the basis that an adverse inference may be drawn from the party s failure to comply respondents on SurveyMonkey answered this question. 78.6% (11 respondents) supported clause 13, while 14.3% (2 respondents) supported with caveat and 7.1% (1 respondent) objected. 76. There were four comments on this clause. 77. One respondent felt that information should be defined in a glossary of terms to prevent confusion. 78. One respondent questioned whether reference to rule 11(2) in clause 13(1) should really refer to clause 12(2). The respondent also thought that if the claimant did not provide evidence in support of the claim, the DRS must decline to continue consideration of the dispute as opposed to may under clause 13(2). 79. One respondent thought that the exceptions in clause 11(2) were too narrow. 80. One respondent thought that sufficient time should be provided before it is deemed a failure to supply information. 23

24 Clause 14: Use of information 14 Use of information (1) For the purpose of resolving a dispute, the DRS operator may consider any information obtained by it or supplied to it. (2) The DRS operator may assume that a party to a dispute consents to the full disclosure to other parties of information supplied by it, unless the party supplying the information expressly limits disclosure. (3) If a party to a dispute (A) limits or excludes disclosure to another party (B), the DRS operator must not use that information in reaching a decision that is adverse to B unless (a) (b) B consents to the use of the information on the basis of limited or nil disclosure; or the DRS operator determines that exceptional circumstances apply that justify a departure from the usual application of the principles of natural justice respondents on SurveyMonkey answered this question. 75% (12 respondents) supported clause 14, while 12.5% (2 respondents) supported with caveat and 12.5% (2 respondents) objected. 82. There were five comments on this clause. 83. Two respondents objected to clause 14(3), claiming it breached other legislation, including the New Zealand Bill of Rights Act and principles of natural justice. 84. One respondent thought that the DRS operator in clause 14(1) should only be able to consider any relevant information as opposed to any information. 85. One respondent (Resolution Institute) raised objections to clause 14(2) relating to disclosure. The respondent thought that confidentiality was an important part of the mediation process and recommended that confidentiality is made explicit to parties in a mediation or DR agreement. 86. One respondent thought that clause 14(1) would allow hearsay to be used in the dispute. 87. One respondent requested a common interpretation that could be understood by all parties be given in the framework of this code. 24

25 Clause 15: DRS operator must keep parties informed 15 DRS operator must keep parties informed The DRS operator must (a) keep the parties to a dispute informed; and (b) ensure that each party has a reasonable opportunity to be informed of, and to respond to, the arguments or submissions of the other parties respondents on SurveyMonkey answered this question. 88.7% (13 respondents) supported clause 15, while 13.3% (2 respondents) supported with caveat. There were no objections. 89. There were two comments on this clause. 90. One respondent thought that parties should be informed in writing and not verbally under clause 15(a). 91. One respondent thought that parties should also be informed about information independently obtained by the DRS operator. 25

26 Clause 16: Representation of parties 16 Representation of parties A party to a dispute may (a) be represented by a professional adviser such as a lawyer (including an in-house lawyer employed by the party) only with the agreement of the other parties; and (b) act through a representative if the DRS operator is satisfied that the party is a corporation or is unable to present his or her case adequately in person, for example, because he or she is a minor respondents on SurveyMonkey answered this question. 80% (12 respondents) supported clause 16, while 6.7% (1 respondent) supported with caveat and 13.3% (2 respondents) objected. 93. There were six comments on this clause. 94. Four respondents (including SIEBA) objected to clause 16(a) and thought any party should be free to engage a lawyer without the agreement of the other party. One respondent thought all parties should be entitled to representation of any kind. 95. One respondent thought that clause 16 should be cross referenced against clause 8(d) which refers to minimising the involvement of lawyers and professional advisers and clause 9 which implies the exclusion of legal representatives. 96. One respondent expressed that there have been cases in the past where a dispute has been handled by a local agent on behalf of the student and that this has not been declared to IEAA and the Education provider during the dispute process. They would like the DRS to address such situations. 26

27 Clause 17: Mediator or adjudicator must be independent of parties to dispute 17 Mediator or adjudicator must be independent of parties to dispute The DRS operator must appoint as a mediator or an adjudicator in a dispute under the scheme only a person who is independent of the parties to the dispute respondents on SurveyMonkey answered this question. 81.3% (13 respondents) supported clause 17, while 12.5% (2 respondents) supported with caveat and 6.3% (1 respondent) objected. 98. There were three comments on this clause. 99. One respondent questioned how parties could ensure that a person is suitably qualified to mediate and adjudicate disputes One respondent thought the principal of independence referred to in clause 17 should be emphasised and highlighted in the Code One respondent thought clause 17 should be moved to sit under clause

28 Clause 18: Agreed settlement 18 Agreed settlement (1) The DRS operator must, as a first step, attempt to assist the parties to a dispute to reach an agreed settlement. (2) If the DRS operator determines that it is no longer appropriate to assist the parties, the DRS operator may appoint an adjudicator to make a final decision on the dispute respondents on SurveyMonkey answered this question. 82.4% (14 respondents) supported clause 18, while 11.8% (2 respondents) supported with caveat and 5.9% (1 respondent) objected There were three comments on this clause One respondent (Resolution Institute) supported mediation or a facilitative approach as a first step for dispute resolution and noted circumstances when a mediator could determine mediation unsuitable One respondent thought that the settlement should be based on any written agreement between the two parties One respondent thought there should be a clause included specifying the process of mediation. 28

29 Clause 19: Decision by adjudicator 19 Decision by adjudicator (1) The adjudicator in a dispute, before making a final decision, must give the parties notice of his or her proposed decision reached on the basis of information held by the DRS operator, including any recommendations made to the parties by the mediator acting for the DRS operator and any submissions on those recommendations by the parties. (2) The adjudicator s notice of the proposed decision must be in writing and must allow a period of 10 working days after sending the notice for the parties to make further submissions and for further consideration of the dispute. (3) If the dispute is not resolved within the 10-day period, and after considering any further submissions received from the parties, the adjudicator may make a final decision in the dispute, which decision may differ from the proposed decision notified to the parties. (4) The adjudicator must give notice in writing to the parties of (a) the final decision and the reasons for the decision; and (b) the acceptance period, which must not be less than 10 working days from the date that the notice is sent respondents on SurveyMonkey answered this question. All supported clause There were two comments on this clause Two respondents (including the Resolution Institute) pointed out that clause 19(1) refers to recommendations made to the parties by the mediator and thought that as mediation was a facilitative and neutral process, this should not involve making recommendations to the parties. 29

30 Clause 20: When final decision binding 20 When final decision binding A final decision by an adjudicator in a dispute becomes binding on the parties to the dispute if, within the 10-day acceptance period, the student claimant sends a written notice to the adjudicator and the other parties stating that the student claimant accepts the decision in full and final settlement of the dispute respondents on SurveyMonkey answered this question. 80% (12 respondents) supported clause 20, while 6.7% (1 respondent) supported with caveat and 13.3% (2 respondents) objected There were six comments on this clause Two respondents (including SIEBA) expressed concern that the decision of an adjudicator was only binding if the student claimant accepts the decision. The following points were made: Agreement should only be reached when both parties concur A school may be put through expense in relation to a dispute and yet still be at risk of a student claimant not accepting the adjudicator s decision There is no recourse to costs under the DRS A student could use the process and if not accepting of the decision then commence proceedings in a different forum 113. One respondent thought that if the student had not accepted the decision within the specified period of time it should be considered binding One respondent thought clause 20 should reference clause 22(f) One respondent questioned the lack of appeal right in the process and thought the DRS should just follow the rules of law One respondent was concerned that the decision would be reached without reference to the rules of evidence and without legal representation. 30

31 Clause 21: Remedies under final decision 21 Remedies under final decision An adjudicator in a dispute may direct the following remedies: (a) that the provider pay the student claimant compensation (which must not exceed $200,000): (b) that the provider take any other action directed by the adjudicator to remedy the matter complained about: (c) that the provider provide non-monetary redress for any loss or damage suffered: (d) that the provider cease the conduct that has given rise to the claim: (e) that the provider make a private or public apology as directed by the adjudicator respondents on SurveyMonkey answered this question. 43.8% (7 respondents) supported clause 21, while 12.5% (2 respondents) supported with caveat and 43.8% (7 respondents) objected, the highest proportion of objections on SurveyMonkey There were 12 comments on this clause respondents raised concerns that the provider may be required to provide the student claimant up to $200,000 in compensation under clause 21(a). The following points were made: The high level of compensation would lead to students and agents trying to claim exorbitant amounts of money The high level of compensation was punitive, onerous or had the appearance of a fine and contradicted clause 23 The monetary jurisdiction is equivalent to the District Courts without the same rules of evidence and representation Payment should not exceed $50,000 in relation to international students enrolled in New Zealand schools Payment should not exceed the amount of tuition fees in dispute 31

32 Payment should not exceed the cost of the student s enrolment fee and all reasonable costs incurred by the student relating to enrolment Payment should not exceed three times the cost of the providers annual tuition fee and that a specific amount should not be included under the DRS Scheme Further detail is required outlining how compensation will be calculated 120. Three respondents requested clarification as to what would be covered under non-monetary redress and thought that clause 21(c) had a potential to breach a providers ethical responsibilities Three respondents (including SIEBA) disagreed with clause 21(e), particularly the direction of a public apology. One respondent thought a private written apology should suffice, while another thought clause 21(e) should be removed entirely Three respondents (including SIEBA) thought that the powers of the adjudicator were too broad. This was expressed particularly in regard to clause 21(b) One respondent thought remedies should be subject to either the acceptance of the outcome by all parties or the outcome of an appeal procedure that is exercised One respondent thought the remedies provided in the DRS place emphasis purely on the accountability of an education provider, disregarding the accountability of all parties involved. 32

33 Clause 22: Termination of dispute resolution process 22 Termination of dispute resolution process A dispute resolution process under the scheme is terminated if (a) the parties notify the DRS operator in writing that they have entered into an agreed settlement; or (b) the student claimant notifies the DRS operator in writing that he or she withdraws the claim and the DRS operator is satisfied that the student claimant has not been coerced into withdrawing; or (c) the student claimant notifies the DRS operator in writing that he or she intends to apply to another authority (such as a court or tribunal) for resolution of the dispute; or (d) an adjudicator determines that the dispute is not covered by the scheme; or (e) the student claimant has failed to comply with an information request and the DRS operator notifies the student claimant in writing that it declines to continue consideration of the dispute; or (f) the student claimant fails to accept a final decision within the 10-day acceptance period respondents on SurveyMonkey answered this question. 93.8% (15 respondents) supported clause 22, while 6.3% (1 respondent) objected There were three comments on this clause One respondent (Resolution Institute) thought clause 22(d) should be redrafted to include DRS operator or mediator as well as an adjudicator One respondent (SIEBA) thought a DRS operator should be able to refer the matter to the Court or a different Tribunal One respondent felt that the categories for termination were too narrow. The respondent did not provide additional suggestions. 33

34 Part 2: Administration of DRS scheme Clause 23: Functions of DRS operator 23 Functions of DRS operator (1) The core functions of the DRS operator are to (a) provide an independent scheme for resolving disputes between international students and education providers that fall within the scheme s jurisdiction; and (b) operate the scheme in accordance with the scheme s purpose and these rules; and (c) resolve, or assist in resolving, disputes under the scheme by agreement between the parties or, if applicable, by adjudication. (2) Other functions of the DRS operator include (a) to promote and publicise the scheme; and (b) to monitor compliance with these rules; and (c) to monitor and report on the effectiveness of the scheme; and (d) to carry out any other function of the scheme under these rules respondents on SurveyMonkey answered this question. 86.7% (13 respondents) supported clause 23, while 13.3% (2 respondents) supported with caveat. There were no objections There were two comments on this clause One respondent questioned whether a DRS operator or the Ministry of Education would also have the function of creating guidelines to provide advice, suggestions or clarification to education providers One respondent supported the functions of the DRS operator subject to their beliefs that the scope and jurisdiction of the DRS scheme should be limited, according to their comments in relation to clause 5,6,7,12,14. Their comments in relation to these clauses have been included under the relevant headings. 34

35 Clause 24: Powers of DRS operator 24 Powers of DRS operator (1) The DRS operator has the powers specifically conferred by these rules and other powers necessary for performing its functions under these rules. (2) The DRS operator may delegate the performance and exercise of its functions and powers under these rules to any person who is appointed to perform or exercise them, except a function or power that under these rules must be performed or exercised by an adjudicator respondents on SurveyMonkey answered this question. 81.3% (13 respondents) supported clause 24, while 6.3% (1 respondent) supported with caveat and 12.5% (2 respondents) objected There were four comments on this clause Three respondents (including SIEBA) expressed concern over the ability for DRS operators to delegate their powers and functions, citing liability and insurance issues, the importance of any potential ramifications of decisions and the seeming lack of limitation on when this delegation can occur One respondent (SIEBA) pointed out that it appeared as if there were no requirements on a DRS operator to have any particular qualifications or experience One respondent thought that the details and scope of powers of the DRS operator should be outlined One respondent disagreed with the powers of the DRS based on their objections to the remedies possible under clause

36 Clause 25: DRS operator may extend time frames 25 DRS operator may extend time frames The DRS operator may, if it thinks fit, extend the time within which something must be done under these rules in relation to consideration or resolution of a dispute respondents on SurveyMonkey answered this question. 86.7% (13 respondents) supported clause 25, while 13.3% (2 respondents) objected There were two comments on this clause One respondent proposed the only exception to timeframes be on the basis of medical emergency One respondent thought that more detail should be included regarding the time period of an extension and in what circumstances an extension could occur. 36

37 Clause 26: Appointees of DRS operator 26 Appointees of DRS operator (1) The DRS operator must appoint sufficient numbers of adjudicators and mediators to ensure the effective functioning of the scheme. (2) In appointing an adjudicator or a mediator, the DRS operator must (a) consider a candidate s objectivity, qualifications, experience, and personal qualities (including the ability to communicate and work effectively with people from diverse linguistic and cultural backgrounds); and (b) appoint or engage only persons who are capable of performing the functions of an adjudicator or a mediator, as the case may be; and (c) ensure that a person appointed or engaged is able to act independently. (3) The DRS operator is responsible for the actions of a person appointed by it to perform its functions under these rules respondents on SurveyMonkey answered this question. 81.3% (13 respondents) supported clause 26, while 18.8% (3 respondents) supported with caveat. There were no objections There were five comments on this clause One respondent (Resolution Institute) recommended that mediators have specific training and accreditation in mediation as well as considering other qualifications and experience One respondent questioned what recourse education providers would have if the DRS failed to appoint appropriate people One respondent thought the profile of the DRS operator should be published on the Ministry of Education website to ensure transparency. They also requested that the outcomes of judgements be made available One respondent thought that the wording of clause 26(1) should be changed from DRS operator must appoint, to may appoint One respondent thought it necessary to ensure that DRS operators understood the context of the education environment and the DRS Scheme. 37

38 Clause 27: DRS operator must ensure accessibility of scheme 27 DRS operator must ensure accessibility of scheme (1) The DRS operator must take all reasonable steps to ensure that international students and providers are fully aware of the scheme and know how to access it. (2) Where appropriate and at reasonable cost, the DRS operator may provide additional support (for example, interpretation or translation services or disability services) to ensure accessibility to the scheme respondents on SurveyMonkey answered this question. 86.7% (13 respondents) supported clause 27, while 13.3% (2 respondents) supported with caveat. There were no objections There were two comments on this clause One respondent proposed that costs for interpretation and translation services be met by the person requiring them One respondent questioned how to measure whether reasonable steps had been taken in ensuring accessibility to the scheme. They also questioned whether the same standards would be used to establish whether good information had been provided to international students by education providers. 38

39 Clause 28: DRS operator may publish case studies 28 DRS operator may publish case studies (1) The DRS operator may, for the limited purposes set out in subclause (2), compile and publish cases studies of disputes under the scheme, subject to appropriate safeguards and redactions for purposes of privacy. (2) The purposes referred to in subclause (1) are (a) keeping providers, students, and other educational interest groups informed; and (b) demonstrating the process of decision-making under the scheme and ensuring its transparency respondents on SurveyMonkey answered this question. 73.3% (11 respondents) supported clause 28, while 20% (3 respondents) supported with caveat and 6.7% (1 respondent) objected There were five comments on this clause Three respondents raised concerns over privacy in relation to clause 28(1), particularly compliance with the Privacy Act and removing identifying details of those involved in a dispute. One respondent thought that written consent from all parties involved in the dispute should be obtained prior to publication One respondent was concerned that the publication of case studies would establish precedent and instead recommended that issues to be aware of and adhere to should be published for Code signatories instead One respondent thought that case studies published should not relate to mediation or negotiation. 39

40 Clause 29: DRS operator must report systemic issues etc 29 DRS operator must report systemic issues, etc The DRS operator must report to the code administrator and other education quality assurance agencies as relevant (a) any systemic issue that it identifies in the course of investigating or resolving a dispute: (b) any serious misconduct by a provider that it identifies in the course of investigating or resolving a dispute: (c) any breach of these rules by a provider respondents on SurveyMonkey answered this question. 93.3% (14 respondents) supported clause 29, while 6.7% (1 respondent) supported with caveat. There were no objections There was one comment on SurveyMonkey relating to clause 29 and one submission One respondent proposed systemic issue in clause 29(a) be defined for clarity One respondent questioned how the reporting of misconduct by a provider would be managed under clause 29(b) when it is not proven, but only alleged. 40

41 Clause 30: Annual report 30 Annual report (1) The DRS operator must submit to the Minister, by September 30 in each year, an annual report for the year ending on 30 June of that year. (2) The annual report must include (but is not limited to) the following information relating to the year in question: (a) the number of each of the following (broken down in each category by types of provider, that is, schools, private training establishments, institutes of technology and polytechnics, and universities): (i) (ii) (iii) (iv) disputes accepted: disputes not accepted: disputes resolved by mediation: disputes resolved by adjudication: (b) the average length of time taken to resolve a dispute by mediation: (c) the average length of time taken to resolve a dispute by adjudication: (d) examples of typical cases, subject to appropriate safeguards and redaction to preserve privacy: (e) financial statements prepared in accordance with generally accepted accounting practice that demonstrate how the funding of the DRS operator has been applied: (f) any systemic issues or serious misconduct by providers identified in the course of investigating or resolving a dispute, and how the DRS operator dealt with the systemic issues or misconduct: (g) the result of any independent review completed during the reporting year. (3) The DRS operator must make copies of its annual report available for inspection by the public without charge, for example, via an Internet site respondents on SurveyMonkey answered this question. 86.7% (13 respondents) supported clause 30, while 13.3% (2 respondents) supported with caveat. There were no objections There were two comments on this clause. 41

42 166. One respondent thought that annual reports should highlight the operations of the DRS including the successful and unsuccessful issues for improvement purposes One respondent thought an additional category relating to disputes resolved by the two parties involved be included under clause 30(1)(a). 42

43 Clause 31: Monitoring operation of scheme 31 Monitoring operation of scheme (1) The DRS operator must have a process for receiving and resolving complaints about the operation of the scheme, and must publicise that process. (2) The DRS must (a) conduct regular client satisfaction surveys for measuring the quality of processes under the scheme, the durability of the outcomes under the scheme, and any other appropriate performance indicators; and (b) publish the results. (3) A provider or an international student who is dissatisfied with the operation of the scheme or the performance of the DRS operator may complain to the Ministry of Education, but this process must not be used to challenge the outcome in a particular dispute. (4) The DRS operator must co-operate with any person or agency appointed by the Minister to carry out an independent review of the scheme and its operation respondents on SurveyMonkey answered this question. 71.4% (10 respondents) supported clause 31, while 21.4% (3 respondents) supported with caveat and 7.1% (1 respondent) objected There were five comments on this clause Three respondents referred to the publication of reviews under clause 31(1). One respondent stressed confidentiality and ensuring parties were not identified. Two respondents questioned whether such information should be made public at all, with one indicating that it should only be released under the Official Information Act Two respondents (including SIEBA) raised questions over the lack of detail in how monitoring of the scheme would be practically implemented. One respondent questioned how often the scheme would be monitored One proposed the Education Ombudsmen be included in clause 31(3) One respondent objected to clause 31(4) and thought there should be an accessible procedure for providers to appeal a dispute outcome. 43

44 Open Comments 174. There were fifteen further comments on SurveyMonkey and four submissions which have been included in the comments below Eight respondents made reference to establishing a reasonable timeframe for implementation. Six respondents (including SIEBA) felt the implementation date of 1 January 2016 was unworkable and suggested this be extended to 1 July 2016 One respondent wanted to reiterate that time should be given to institutions to introduce the new Code and DRS Rules asking that the scheme not become fully operational prior to a 12 month period One respondent thought a 2017 implementation would be realistic 176. Five respondents felt that further consultation or research into the issues surrounding the DRS were required. One respondent felt the whole process had been rushed, while another felt the meetings held by the Ministry of Education did not allow enough time for the DRS, complaints and breaches of the Code to be discussed One respondent (SIEBA) requested further engagement with the Ministry on the DRS scheme and felt the consultation period was inadequate. They also felt that the potential implications of the DRS for the rules of schools had not been fully considered Five respondents expressed confusion and a need for clarity over the jurisdiction and scope of the DRS. Two respondents were unsure which complaints were to go to a Code Administrator and which were to be dealt with under the DRS. One of whom was unsure why complainants were able to complain to both the Code Administrator and the DRS at the same time. Two respondents (including SIEBA) thought it was unclear how a disciplinary dispute would be handled and queried whether this would be dealt with under the Education Act. These respondents felt there may be a grey area in instances of overlap between a breach of contract and a dispute covered under the Education Act. They also raised issues regarding the extent of a school s duties and ability to discipline when misbehaviour is outside of school but within the pastoral care arrangements and where such instances would be addressed. One respondent (the HRC) pointed out that while the DRS was limited to disputes that are financial or contractual the Rules did not define what constitutes a contractual dispute. The HRC commented that the provision appears on its face to be broad enough to cover non-financial disputes under the Code (such as accommodation or student welfare issues for example), as adherence to the Code would be a fundamental contractual requirement. However this is not clear One respondent (ISANA NZ) wanted to ensure that international students were adequately supported given that for some direct complaint is contrary to their cultural and social norms. They suggested that in the guidelines and information related to the DRS international students be made well aware of provisions for a support person and what this entailed One respondent was concerned at the lack of appeal process One respondent (the HRC) recommended that provisions are incorporated that refer to the District Court s oversight jurisdiction and establish procedures for parties to initiate and respond to the District Court proceedings under s283l of the Education Amendment Act. 44

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