Part A – The Education Services for Overseas Students Framework

1 Promoting Australia’s international education industry

Australia offers a high-quality education experience to overseas students across all sectors, ranging from schools through to English language and foundation programs, to vocational education and training and higher education.

By providing a fair and accessible system that supports overseas students, Australia has gained an enviable reputation as a popular study destination. The Education Services for Overseas Students (ESOS) legislation is a robust framework that protects and enhances the experiences of overseas students in Australia.

International education can transform individuals, widening their intellectual horizons, opening them to new ideas and experiences, and extending their friendships. Their experiences, in turn, enrich Australian society and life.

The Australian Government acknowledges and values the contribution of overseas students who come to Australia from all over the world to study, live and work. The social and economic benefits of international education to individuals, institutions and the wider community, both in Australia and abroad, are well documented. In turn, Australia offers overseas students an enriching and high quality learning experience in a diverse cultural environment, helping to prepare them for a rewarding future. Australia’s natural assets, relaxed lifestyle and many tourist attractions make it one of the most appealing destinations in the world.

The benefits of international education and training depend on the quality of the courses and services provided to overseas students, and on public confidence in the integrity and quality of the international education sector.

The reputation and quality of Australia’s courses and international education services underpin long-term benefits for trade and foreign relations and are imperative to growth in trade in education services. The ESOS legislative framework is designed to uphold Australia’s high standards for, and commitment to, international education through a consistent national approach, and to support the integrity of the student visa system.

2 An overview of the ESOS legislative framework

The Education Services for Overseas Students Act 2000 (ESOS Act) and related legislation are designed to protect the interests of overseas students coming to Australia on student visas. The legislation aims to protect and enhance Australia’s reputation for quality education, to provide tuition protection and support the integrity of the student visa program.

The ESOS legislative framework is complemented by the Migration Act 1958 (Migration Act) and Migration Regulations 1994 (Migration Regulations), the Tertiary Education Quality and Standards Agency Act 2011 (TEQSA Act), the National Vocational Education and Training Regulator Act 2011 (NVETR Act), and state and territory legislation relevant to the education and training of overseas students.

3 The National Code, its purpose and objectives

Under the ESOS Act, the purpose of the National Code of Practice for Providers of Education and Training to Overseas Students 2018 (National Code 2018) is to set nationally consistent standards and procedures for registered providers and for persons who deliver education services on behalf of registered providers. The National Code supports the effective administration of the ESOS legislative framework by the Commonwealth and state and territory governments.

The National Code 2018 comprises the following:

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. Students must have sufficient information to enable them to make informed decisions about studying with their chosen registered provider in Australia.

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. Registered providers of overseas students aged under 18 must provide the students with emergency contact information and information about how to report actual or alleged abuse. Where the registered provider has taken on responsibility for the approval of welfare arrangements for a student who is under 18 years of age (for the purposes of the Migration Regulations), the registered provider must ensure the arrangements for the younger students are suitable, ongoing and appropriately managed until the student turns 18 years of age.

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 8 sets flexible provisions to allow online learning while maintaining appropriate standards for overseas students to comply with student visa conditions.

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.

4 Australia’s international education quality assurance process

The ESOS legislative framework is administered by a number of agencies across the Commonwealth and states and territories. Their roles are outlined briefly below.

Australian Government

Department of Education and Training

The Commonwealth Department of Education and Training is responsible for:

 the overarching policy development and administration of the ESOS Act and its associated legislative framework, including the Tuition Protection Service (TPS) framework and the management of PRISMS

 administering ESOS-related charges for cost recovery

 final registration or renewal and compliance monitoring and enforcement decisions (including suspensions and cancellations) as the ESOS agency for schools.

Tuition Protection Service

The TPS is a placement and refund service to assist overseas students whose registered providers are unable to fully deliver their course of study. The TPS ensures overseas students can either:

 complete their studies in another course or with another registered provider or

 receive a refund of their unspent tuition fees.

Department of Immigration and Border Protection

The Department of Immigration and Border Protection (Immigration) is responsible for administration of the student visa program under the Migration Act and associated legislation. The ESOS framework also plays a role in ensuring registered providers uphold the integrity of Australia’s student visa program through their ongoing contact with overseas students during their stay in Australia. Under subsection 19(2) of the ESOS Act, registered providers are required to notify the Commonwealth when overseas students have breached their student visa conditions, such as by failing to maintain satisfactory course attendance or progress. The National Code 2018 sets out the course attendance, progress and completion requirements for overseas students that registered providers must monitor and report on.

Australia’s quality assurance agencies

The Tertiary Education Quality and Standards Agency (TEQSA) is Australia’s independent national regulator of the higher education sector. Under the ESOS Act, TEQSA is the ESOS agency for providers or registered providers of higher education courses.

The Australian Skills Quality Authority (ASQA) is the national regulator for the vocational education and training sector and registered training organisations (RTOs) (within the meaning of the NVETR Act) in Australia. Under the ESOS Act, ASQA is the ESOS agency for providers or registered providers of vocational education courses.

Both ASQA and TEQSA have powers to register providers to deliver courses to overseas students, as well as to investigate and instigate enforcement action against registered providers for breaches of the ESOS Act and the National Code.

ASQA and TEQSA also have oversight responsibilities for English Language Intensive Courses for Overseas Students (ELICOS) and foundation programs, except where these courses are delivered in the capacity of a school under the ESOS Act.

State and territory governments

For schools seeking to register to provide courses to overseas students, the state, territory and Commonwealth systems are linked through the ESOS framework. Under ESOS, the designated State authority (DSA) plays a role in ESOS related functions in state and territory jurisdictions for:

 school education and for ELICOS, foundation and non-award programs delivered by schools, and

 school education courses delivered by other registered providers.

The DSA makes recommendations to the Commonwealth Department of Education and Training to register a school as a registered provider, including any conditions on that registration. Some states and territories also have their own legislation relating to education services for overseas students within the relevant jurisdiction, and may use that legislation to take enforcement action against a registered provider where appropriate and necessary.

5 The effect of the National Code 2018

The National Code 2018 sets standards to ensure education services meet the needs and expectations of overseas students who come to Australia, and satisfy the objectives of the ESOS Act.

The National Code complements the strong quality assurance frameworks used by government agencies to oversee the Australian education system.

ESOS agencies may use information given by providers for other purposes in assessing their registration or compliance under the ESOS Act.

The National Code has legal effect as expressly provided for by the ESOS Act. Therefore, breaches of the National Code by registered providers can result in actions being taken against a registered provider under Division 1A in Part 6 of the ESOS Act, including suspension or cancellation of registration.

Part B – Standards for Providers of Education and Training to Overseas Students

Standard 1

Marketing information and practices

1. The registered provider must ensure that the marketing and promotion of its courses and education services in connection with the recruitment of overseas students or intending overseas students, including through an education agent (in accordance with Standard 4), is not false or misleading, and is consistent with Australian Consumer Law.
2. The registered provider must, in seeking to enter into written agreements with overseas students or intending overseas students, not provide any false or misleading information on:
   1. its association with any other persons or organisations the registered provider has arrangements with for the delivery of the course in which the student intends to enrol or may apply to enrol
   2. any work-based training a student is required to undertake as part of the course
   3. prerequisites—including English language proficiency—for entry to the course
   4. any other information relevant to the registered provider, its courses or outcomes associated with those courses.
3. The registered provider must not:
   1. claim to commit to secure for, or on the student or intending student’s behalf, a migration outcome from undertaking any course offered by the registered provider
   2. guarantee a successful education assessment outcome for the student or intending student.
4. The registered provider must include its CRICOS registered name and registration number in any written or online material that it disseminates or makes publicly available for the purposes of:
   1. providing or offering to provide a course to an overseas student
   2. inviting a student to undertake or apply for a course, or
   3. indicating it is able or willing to provide a course to overseas students.
5. The registered provider must not actively recruit a student where this conflicts with its obligations under Standard 7 (Overseas student transfers).

Standard 2

Recruitment of an overseas student

1. Prior to accepting an overseas student or intending overseas student for enrolment in a course, the registered provider must make comprehensive, current and plain English information available to the overseas student or intending overseas student on:

   1. the requirements for an overseas student’s acceptance into a course, including the minimum level of English language proficiency, educational qualifications or work experience required, and course credit if applicable
   2. the CRICOS course code, course content, modes of study for the course including compulsory online and/or work-based training, placements, other community-based learning and collaborative research training arrangements, and assessment methods
   3. course duration and holiday breaks
   4. the course qualification, award or other outcomes
   5. campus locations and facilities, equipment and learning resources available to students
   6. the details of any arrangements with another provider, person or business who will provide the course or part of the course
   7. indicative tuition and non-tuition fees, including advice on the potential for changes to fees over the duration of a course, and the registered provider’s cancellation and refund policies
   8. the grounds on which the overseas student’s enrolment may be deferred, suspended or cancelled
   9. the ESOS framework, including official Australian Government material or links to this material online
   10. where relevant, the policy and process the registered provider has in place for approving the accommodation, support and general welfare arrangements for younger overseas students (in accordance with Standard 5)
   11. accommodation options and indicative costs of living in Australia.

2. The registered provider must have and implement a documented policy and process for assessing whether the overseas student’s English language proficiency, educational qualifications or work experience is sufficient to enable them to enter the course.

3. The registered provider must have and implement a documented policy and process for assessing and recording recognition of prior learning (RPL), and granting and recording course credit, if it intends to assess RPL or grant course credit. The decision to assess prior learning or grant course credit must preserve the integrity of the award to which it applies and comply with requirements of the underpinning educational framework of the course.

4. If the registered provider grants RPL or course credit to an overseas student, the registered provider must give a written record of the decision to the overseas student to accept and retain the written record of acceptance for two years after the overseas student ceases to be an accepted student.

5. If the registered provider grants the overseas student RPL or course credit that reduces the overseas student’s course length, the provider must:

Standard 3

Formalisation of enrolment and written agreements

1. The registered provider must enter into a written agreement with the overseas student or intending overseas student, signed or otherwise accepted by the student, concurrently with or prior to accepting payment of tuition fees or non-tuition fees. A written agreement may take any form provided it meets the requirements of the ESOS Act and the National Code.
2. If the overseas student or intending overseas student is under 18 years of age, the written agreement with the overseas student or intending overseas student must be signed or otherwise accepted by the student’s parent or legal guardian.
3. In addition to all requirements in the ESOS Act, the written agreement must, in plain English:
   1. outline the course or courses in which the student is to be enrolled, the expected course start date, the location(s) at which the course will be delivered, the offered modes of study for the course, including compulsory online and/or work-based training, placements, and/or other community-based learning and/or collaborative research training arrangements
   2. outline any prerequisites necessary to enter the course or courses, including English language requirements
   3. list any conditions imposed on the student’s enrolment
   4. list all tuition fees payable by the student for the course, the periods to which those tuition fees relate and payment options (including, if permitted under the ESOS Act, that the student may choose to pay more than 50 per cent of their tuition fees before their course commences)
   5. provide details of any non-tuition fees the student may incur, including as a result of having their study outcomes reassessed, deferral of study, fees for late payment of tuition fees, or other circumstances in which additional fees may apply
   6. set out the circumstances in which personal information about the student may be disclosed by the registered provider, the Commonwealth including the TPS, or state or territory agencies, in accordance with the Privacy Act 1988
   7. outline the registered provider’s internal and external complaints and appeals processes, in accordance with Standard 10 (Complaints and appeals)
   8. state that the student is responsible for keeping a copy of the written agreement as supplied by the registered provider, and receipts of any payments of tuition fees or non-tuition fees
   9. only use links to provide supplementary material.
4. The registered provider must include in the written agreement the following information, which is to be consistent with the requirements of the ESOS Act, in relation to refunds of tuition fees and non-tuition fees in the case of student default and provider default:
   1. amounts that may or may not be repaid to the overseas student (including any tuition and non-tuition fees collected by education agents on behalf of the registered provider)
   2. processes for claiming a refund

Standard 4

Education agents

1. The registered provider must enter into a written agreement with each education agent it engages to formally represent it, and enter and maintain the education agent’s details in PRISMS.

2. The written agreement must outline:

   1. the responsibilities of the registered provider, including that the registered provider is responsible at all times for compliance with the ESOS Act and National Code 2018
   2. the registered provider’s requirements of the agent in representing the registered provider as outlined in Standard 4.3
   3. the registered provider’s processes for monitoring the activities of the education agent in representing the provider, and ensuring the education agent is giving students accurate and up-to-date information on the registered provider’s services
   4. the corrective action that may be taken by the registered provider if the education agent does not comply with its obligations under the written agreement including providing for corrective action outlined in Standard 4.4
   5. the registered provider’s grounds for termination of the registered provider’s written agreement with the education agent, including providing for termination in the circumstances outlined in Standard 4.5
   6. the circumstances under which information about the education agent may be disclosed by the registered provider and the Commonwealth or state or territory agencies.

3. A registered provider must require its education agent to:

   1. declare in writing and take reasonable steps to avoid conflicts of interests with its duties as an education agent of the registered provider
   2. observe appropriate levels of confidentiality and transparency in their dealings with overseas students or intending overseas students
   3. act honestly and in good faith, and in the best interests of the student
   4. have appropriate knowledge and understanding of the international education system in Australia, including the Australian International Education and Training Agent Code of Ethics.

4. Where the registered provider becomes aware that, or has reason to believe, the education agent or an employee or subcontractor of that education agent has not complied with the education agent’s responsibilities under standards 4.2 and 4.3, the registered provider must take immediate corrective action.

5. Where the registered provider becomes aware, or has reason to believe, that the education agent or an employee or subcontractor of the education agent is engaging in false or misleading recruitment practices, the registered provider must immediately terminate its relationship with the education agent, or require the education agent to terminate its relationship with the employee or subcontractor who engaged in those practices.

6. The registered provider must not accept students from an education agent if it knows or reasonably suspects the education agent to be:

Standard 5

Younger overseas students

1. Where the registered provider enrols a student who is under 18 years of age, it must meet the Commonwealth, state or territory legislation or other regulatory requirements relating to child welfare and protection appropriate to the jurisdiction(s) in which it operates.
2. Registered providers must ensure students under 18 years of age are given age-and culturally-appropriate information on:
   1. who to contact in emergency situations, including contact numbers of a nominated staff member and/or service provider to the registered provider
   2. seeking assistance and reporting any incident or allegation involving actual or alleged sexual, physical or other abuse.
3. Where the registered provider takes on responsibility under the Migration Regulations for approving the accommodation, support and general welfare arrangements (but not including guardianship, which is a legal relationship not able to be created or entered into by a registered provider) for a student who is under 18 years of age, the registered provider must:
   1. nominate the dates for which the registered provider accepts responsibility for approving the student’s accommodation, support and general welfare arrangements and advise Immigration, which is responsible for administering the Migration Regulations, of the dates in the form required by that department
   2. ensure any adults involved in or providing accommodation and welfare arrangements to the student have all working with children clearances (or equivalent) appropriate to the jurisdiction(s) in which the registered provider operates
   3. have and implement documented processes for verifying that the student’s accommodation is appropriate to the student’s age and needs:

5.3.3.1 prior to the accommodation being approved

5.3.3.2 at least every six months thereafter.

1. include as part of their policy and processes for critical incidents under Standard 6 (Overseas student support services), a process for managing emergency situations and when welfare arrangements are disrupted for students under 18 years of age

2. maintain up-to-date records of the student's contact details as outlined in Standard 3.5, including the contact details of the student’s parent(s), legal guardian or any adult responsible for the student’s welfare

3. advise Immigration in the form required by that department:

   1. as soon as practicable if the student will be cared for by a parent or nominated relative approved by Immigration and a Confirmation of Appropriate Accommodation and Welfare (CAAW) is no longer required
   2. within 24 hours if the registered provider is no longer able to approve the student’s welfare arrangements

4. have documented policies and processes for selecting, screening and monitoring any third parties engaged by the registered provider to organise and assess welfare and accommodation arrangements.

5. If the registered provider is no longer able to approve the welfare arrangements of a student, the registered provider must make all reasonable efforts to ensure that the student’s parents or legal guardians are notified immediately.

6. If the registered provider is unable to contact a student and has concerns for the student’s welfare, the registered provider must make all reasonable efforts to locate the student, including notifying the police and any other relevant Commonwealth, state or territory agencies as soon as practicable.

7. Where Standard 5.3 applies and the registered provider suspends or cancels the enrolment of the overseas student, the registered provider must continue to approve the welfare arrangements for that student until any of the following applies:

   1. the student has alternative welfare arrangements approved by another registered provider
   2. care of the student by a parent or nominated relative is approved by Immigration
   3. the student leaves Australia
   4. the registered provider has notified Immigration under Standard 5.3.6 that it is no longer able to approve the student’s welfare arrangements or under Standard 5.5 that it has taken the required action after not being able to contact the student.

8. If the registered provider enrols a student under 18 years of age who has welfare arrangements approved by another registered provider, the receiving registered provider must:

   1. negotiate the transfer date for welfare arrangements with the releasing registered provider to ensure there is no gap
   2. inform the student of their visa obligation to maintain their current welfare arrangements until the transfer date, or have alternate welfare arrangements approved or return to their home country until the new approved welfare arrangements take effect.