Education Services for Overseas Students (ESOS) Legislation

The Education Services for Overseas Students Act 2000 (ESOS Act) is designed to protect the interests of students coming to Australia on student visas.

What is ESOS?

The ESOS Act 2000 sets out the legal framework governing delivery of education to overseas students studying in Australia on a student visa. The framework is complemented by the Migration Act, the TEQSA Act and the NVETR Act. ESOS:

  • Protects the interests of students coming to Australia on student visas.
  • Protects and enhances the reputation for quality education.
  • Provides tuition protection.
  • Supports the integrity of the student visa program.

The ESOS Framework is made up of several legislative components. These are:

  • Education Services for Overseas Students (ESOS) Act 2000.
  • Education Services for Overseas Students (TPS Levies) Act 2012.
  • Education Services for Overseas Students (Registration Charges) Act 1997.
  • Education Services for Overseas Students (ESOS) Regulations 2001.
  • Education Services for Overseas Students Act 2000 – Legislative Instruments.

The ESOS Framework sets down:

  • National Standards for Foundation Programs.
  • National Standards for ELICOS Providers and Courses.
  • The National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2017.

Who is responsible for the ESOS framework?

The Australian Department of Education, Skills and Employment administers the Act and its associated instruments.

The Tertiary Education Quality and Standards Agency (TEQSA) is responsible for quality assurance of higher education courses. It is the ESOS agency for providers of higher education courses.

The Australian Skills Quality Authority (ASQA) is the quality assurance agency responsible for the national regulation of RTO’s.

The Department of Immigration and Border Control is responsible for the student visa program.

What are my obligations as an IE Professional?

As an education provider and a professional working in international education you need to know your obligations. These include, but are not limited to the following:

Only CRICOS courses can be offered to international students studying in Australia on a student visa. It is an offence to provide or promote a course without CRICOS registration on the  Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS).

The Register can be made available to the public by electronic or other means.

A registered provider must not engage in misleading or deceptive conduct in connection with the recruitment of overseas students or intending overseas students; or the provision of courses to overseas students. This is important if you are working with education agents and are involved in your organisation’s marketing activities.

A summary of the components of the ESOS framework explains the Tuition Protection Service (TPS), a placement and refund service for international students, and other relevant information for providers and students. Recent changes to the ESOS legislation are listed here.

The National Code

The National Code is a legislative instrument. It is legally enforceable and breaches of the National Code by providers can result in enforcement action under the ESOS Act. The Code governs the protection of overseas students and delivery of courses to those students by providers registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS). To become CRICOS-registered, a provider must demonstrate that it complies with the requirements of the National Code.

Recent developments

A review of the National Code 2007 has occurred over a number of years through extensive consultation with the education sector, including professional associations.

The new National Code 2018  was implemented on 1 January 2018.

The Australian Department of Education, Skills and Employment offered webinars, including for each education sector, between September and October 2017 as well as ongoing training modules for providers.  International Education Knowledgebase and ISANA have collaborated on a series of workshops that offer an opportunity to professionals.

The National Code 2018 commenced on 1 January 2018. Education providers must comply with the National Code to maintain their registration to provide education services to overseas students.

The Code covers the conduct of educational institutions delivering services to overseas students. It places clear responsibilities on all educational institutions and their agents. Summary documents of the Code and its key requirements can be found here.

The National Code 2018  Standards – in a nutshell

The National Code 2018 comprises the following 11 Standards:

Standard 1 Marketing information and practices.

This standard sets out that registered providers must uphold the integrity and reputation of Australia’s education industry by ensuring the marketing of their courses and services is not false or misleading.

Standard 2 Recruitment of an overseas student.

This standard sets out that registered providers must recruit responsibly by ensuring students are appropriately qualified for the course for which they seek enrolment, including having the necessary English language proficiency, educational qualifications and work experience.

Standard 3 Formalisation of enrolment and written agreements.

This standard sets out that registered providers must formalise their enrolment of overseas students through written agreements with overseas students. The written agreements protect the rights and set out the responsibilities of each party, as well as the courses and related education services to be provided, tuition and non-tuition fees payable, and refund policies.

Standard 4 Education agents.

This standard sets out that registered providers must ensure that their education agents act ethically, honestly and in the best interests of overseas students as well as uphold the reputation of Australia’s international education sector.

Standard 5 Younger overseas students.

This standard sets out that registered providers of overseas students aged under 18 must meet legislative or other regulatory requirements relating to child welfare and protection, including  emergency contact information and information about how to report actual or alleged abuse.

Standard 6 Overseas student support services.

This standard sets out that registered providers must assist overseas students to adjust to study and life in Australia and have appropriate orientation programs that help overseas students to access the information and services they require.

Standard 7 Overseas student transfers.

This standard sets out that registered providers must not knowingly enrol an overseas student wishing to transfer from another registered provider’s course prior to the student completing six months of his or her principal course (or for the school sector, until after the first six months of the first registered school sector course), except in certain circumstances.

Standard 8 Overseas student visa requirements.

This standard sets out that registered providers must safeguard the integrity of Australia’s migration laws by supporting overseas students to complete their course within the required duration and fulfil their visa requirements for course attendance and course progress.

Standard 9 Deferring, suspending or cancelling the overseas student’s enrolment.

This standard sets out that registered providers must appropriately manage the enrolment of their overseas students and ensure all necessary information about enrolments has been provided to the relevant government department by maintaining updated information in the Provider Registration and International Student Management System (PRISMS) database.

Standard 10 Complaints and appeals.

This standard sets out that registered providers must ensure their overseas students have the right to natural justice protected through access to professional, timely, inexpensive and documented complaints handling and appeals processes.

Standard 11 Additional registration requirements.

This standard sets out that registered providers must continue to meet the requirements for CRICOS registration and ensure the ESOS agency for the registered provider approves, and has up-to-date information on, specific aspects of the registered provider’s operations and any registered courses.

What’s changed?

Below is a summary of the 2018 structural changes to the National Code.

  • There are only 2 parts of the new Code, compared to the four parts of the 2007 Code.
  • Part A outlines the ESOS framework.
  • There are 11 standards in Part B (reduced from 15).
  • Standards 1, 2, 3, 4, 5, 6 and 7 in essence are the same but are much more prescriptive in the expectations placed on providers.
  • The new standard 8 has combined the old standards 9, 10 and 11.
  • The old standard 12 has been include in standard 2.
  • Standard 13 becomes standard 9 and standard 8 becomes standard 10.
  • Standard 11 outlines additional registration requirements.

Targeted professional development should be part of learning about legislative obligations and changes as they occur. The Department of Education and Training has issued fact sheets to explain changes across the standards.

Contact us to work with your organisation to comply with the National Code.