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ESOS National Code Information for Overseas Students and Staff

On 4 September 2017, the Minister for Education and Training introduced the National Code of Practice for Providers of Education and Training to Overseas Students 2018 (National Code).

The National Code 2018 commenced with legal effect from 1 January 2018, and from that date, all education providers must comply with the National Code to maintain their registration to provide education services to overseas students. Any breaches of the National Code by registered providers can result in actions being taken against them.

The purpose of the National Code 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.

ESOS compliance is an Institute-wide responsibility, requiring commitment and effort on the part of each staff member. That is, all divisions/ units and faculties have a responsibility to comply with the requirements of the National Code when dealing with international students studying onshore.

In terms of specific responsibilities for compliance with the National Code, the PEO together with the Vice President (Regulatory and Compliance) are ultimately responsible for compliance with the National Code and for completing day-to-day ESOS compliance activities. Part of this delegation also includes the student services division of TOP who have responsibilities for international students accepted for study including sending correspondence and maintaining appropriate records for students accepted for study.

The National Code 2018 comprises of eleven (11) standards which complements the strong quality assurance frameworks used by government agencies to oversee the Australian education system. Further detail of the standards are set out below.

Marketing information and practices  (Standard 1)

Standard 1 now includes direct reference to Australian Consumer Law. It continues to ensure registered providers are not giving international students false or misleading information about courses, or outcomes associated with those courses. This includes information in marketing material on the registered provider’s association with any other providers, work-based or work-integrated learning opportunities, and prerequisites including English language.

Standard 1 also prevents a registered provider from suggesting it can secure a migration or education assessment outcome for the international student.

Recruitment of an overseas student (Standard 2)

Standard 2 ensures registered providers recruit responsibly by ensuring international students are appropriately qualified for a course, including having the necessary English language proficiency, educational qualifications and/or work experience.

Under Standard 2, registered providers must give more information to international students about course content before they are enrolled. This includes information about compulsory online and work-related learning.

Registered providers also need to give international students information on the costs of living in Australia and accommodation options. Where the international student is under 18, providers must also give information on the process for approving welfare and accommodation arrangements for international students. 

Please refer to student offer letter and published information to prospective students.

Formalisation of enrolment and written agreements (Standard 3)

Standard 3 gives registered providers and international students more detailed information about what should be in a written agreement. A written agreement may take any form, as long as it meets the requirements of the ESOS Act and the National Code 2018. Registered providers must include information in written agreements on:

  • course content, including compulsory online learning and work-related training
  • prerequisites necessary to enter the course or courses
  • conditions imposed on the student’s enrolment
  • tuition fees payable, the period which the tuition fees relate, and options for payment (including that an international student may choose to pay more than 50 per cent of their tuition fees before their course commences in accordance with the ESOS Act)
  • circumstances where an international student’s information will be shared.

Registered providers must only use electronic links in written agreements to provide supplementary materials. Registered providers will also need to keep records of the written agreements and payments that demonstrate an international student’s acceptance of the agreement.

Please refer to student written agreements.
In accordance with Department of Home Affairs guidelines, international students under the age of 18 will only be considered by TOP if accommodation and welfare arrangements are deemed acceptable.

Education agents (Standard 4)

Standard 4 clarifies the requirements for a written agreement between the registered provider and education agents. Registered providers will now need to enter and maintain details of education agents with whom they have a written agreement in PRISMS.

Written agreements must outline registered providers’ procedures for monitoring the agent and ensuring the agent has up-to-date information. Registered providers must ensure agents do not engage in false or misleading conduct, declare and avoid conflicts of interest, observe appropriate levels of confidentiality and transparency in dealing with international students, and act honestly and in good faith. Agents must also have good knowledge of the international education system, including the Australian International Education and Training Agent Code of Ethics.

Registered providers will still need to take immediate corrective action or terminate their relationship with an agent who engages in any unethical recruitment practices.

Please refer to the Agent List 

Younger overseas students (Standard 5)

Standard 5 gives registered providers more guidance on the care and welfare of international students under the age of 18. Registered providers who enrol international students under the age of 18 must meet any Commonwealth, state or territory legislation, or other regulatory requirements relating to child welfare and protection appropriate to the jurisdiction(s) in which they operate.

This Standard also requires registered providers to give international students age and culturally appropriate information on who to contact in emergency situations and in seeking assistance in the case of actual or alleged abuse. Registered providers should deliver this in accordance with any state or territory requirements, particularly in a school context.

Standard 5 includes specific requirements for providers who take responsibility for a younger international student’s welfare. Where this is the case, it requires registered providers to regularly check that an international student’s accommodation is appropriate to the student’s age and physical needs. As a matter of best practice, it is expected that at least one initial physical check will be undertaken.

Registered providers must also have processes to monitor any third parties engaged by the registered provider to organise and assess welfare and accommodation arrangements.

Registered providers will also need to ensure all adults involved in providing international student accommodation or welfare arrangements have working with children clearances appropriate to the jurisdiction in which they operate.
Under this Standard, registered providers that are no longer able to approve welfare arrangements must take all reasonable steps to immediately notify the international student’s parent or relative.

Registered providers will need to report to the Department of Home Affairs through the Provider Registration and International Student Management System (PRISMS) if:

  • the international 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
  • the registered provider is no longer able to approve an international student’s welfare arrangements.

If the registered provider enrols an international student under 18 years of age who has welfare arrangements approved by another registered provider, it is the responsibility of the receiving registered provider to negotiate with the releasing provider to ensure there are no welfare gaps. This may mean the receiving provider may have to take on welfare earlier than anticipated or make alternative arrangements for the international student.

In accordance with Department of Home Affairs guidelines, international students under the age of 18 will only be considered by TOP if accommodation and welfare arrangements are deemed acceptable.

Overseas Student support services (Standard 6)

Standard 6 continues to focus on student support services. Registered providers must give international students information about support services to assist international students in adjusting to study andlife in Australia. In particular, registered providers must provide information about services international students can access for information on their employment rights and conditions and how to resolve workplace issues, such as through the Fair Work Ombudsman. This must be done through the orientation program, and the international student must be given information or a referral if they seek assistance from the registered provider.

Registered providers must also offer reasonable support at no additional cost to international students to assist them to achieve expected learning outcomes, regardless of the international student’s mode of study.

Standard 6 also clarifies that registered providers must have a documented policy and procedure to manage critical incidents that impact on an international student undertaking or completing a course. This includes incidents that may cause physical or psychological harm.

The registered provider will need to take all reasonable steps to provide a safe environment on campus and advise international students and staff on actions they can take to enhance personal security and safety.

The registered provider must also give general information to international students about safety and awareness of life in Australia, and how to seek assistance for and report an incident that impacts their wellbeing.

Please refer to the Student Handbook and Critical Incidents Policy.

Overseas Student transfers (Standard 7)

Standard 7 gives greater guidance for providers on when a transfer request should be granted. Registered providers are still required to have a policy for assessing student transfer requests before an international student completes six months of their principal course.

International students in higher education provider are restricted from transferring until they have completed 6 months of the principal course. International students wishing to transfer during this period must continue to meet an exception under Standard 7, for example by requesting a transfer from their provider.

Registered providers should grant a transfer request where they have assessed that:

  • the international student will be reported because they are unable to achieve satisfactory course progress
  • there are compassionate or compelling circumstances
  • the registered provider is not able to deliver the course
  • there is evidence that current courses do not meet international student’s expectations
  • there is evidence that the international student was misled by the registered provider or an education agent
  • an appeal (internal or external) on another matter results in a decision or recommendation to release the international student.

Transfers will be recorded in PRISMS from 1 January 2018 and registered providers are no longer required to issue release letters.

If a transfer is to be refused, the Standard now requires registered providers to notify an international student of their intention to refuse the request. The registered provider must not finalise the refusal in PRISMS until the international student has been given an opportunity to access the complaints and appeals process, the international student withdraws from the process, or if the process finds in favour of the registered provider.

A cancellation of a Confirmation of Enrolment (CoE) does not mean that the student has been released from the previous registered provider.

Please refer to the Transfer between Registered Providers Policy and Procedure

Overseas Student visa requirements (Standard 8)

General Requirements

Standard 8 requires registered providers to monitor international students’ compliance with their visa conditions relating to course attendance, progress and completion according to the sector of education. It continues to require that the expected duration of study specified on an international students’ CoE must not exceed the CRICOS registered duration.

Registered providers are also required to have policies and processes to identify, notify and assist international students at risk of not meeting course progress or attendance requirements based on evidence from their academic progress.

Monitoring course progress and attendance

Standard 8 requires registered providers to continue to have processes for determining the point at which an international student has failed to meet satisfactory course attendance or course progress.

Higher education providers must continue to monitor course progress regularly, and are not required to monitor attendance.

Reporting unsatisfactory course progress or course attendance

Under Standard 8, registered providers must continue to report international students who do not meet course progress and/or attendance requirements and ensure an international student is notified of the impending report and has the right of appeal.

The Standard continues to state that registered providers must only report a breach of course progress or attendance if the internal and external complaints processes have been completed and the breach has been upheld; or the international student has chosen not to access the internal or external appeals process; or the international student withdraws from the internal or external appeals process.

Online learning

Standard 8 maintains the existing provision that prevent exclusive online or distance learning for an international student on a student visa.

The Standard clarifies that online learning does not include the provision of online lectures, tuition or other resources that supplement scheduled classes or contact hours.

Standard 8 also requires registered providers to ensure that in each compulsory study period for a course, the international student is studying at least one unit that is not by distance or online learning, unless the international student is completing the last unit of their course.

Please refer to Student Progression Exclusion and Graduation Policy.

For Student visa requirements, please check the information on the
Department of Home Affairs website 

Deferring, suspending or cancelling the student’s enrolment (Standard 9)

Standard 9 clarifies some currentrequirements, but makes no significant changes to the policy.

Registered providers may suspend or cancel an international student’s enrolment on the basis of misbehaviour by the international student, the international student’s failure to pay an amount required to undertake or continue the course, or breach of course progress or attendance requirements by the international student.

Standard 9 still requires registered providers to inform international students of their intent to suspend or cancel an international student’s enrolment and advise the international student of their right to appeal the decision through the registered provider’s internal appeals process. The suspension or cancellation of an international student’s enrolment cannot take effect until the internal appeals process is completed.

Please refer to the Student Selection and Admissions Policy and International Students Enrolment Amendments and Variations Guideline.

Complaints and appeals (Standard 10)

Standard 10 outlines the requirements relating to complaints and appeals but contains no policy changes. Registered providers must continue to have an internal complaints and appeals policy and process that meet the requirements of Standard 10. International students must also be provided with comprehensive, free and easily accessible information regarding the policy and process.

If an international student is not successful in the registered provider’s internal complaints and appeals process, the registered provider must advise the international student of their rights to access external complaints and appeals process at minimal or not cost within 10 working days of completing the internal review.

Registered providers must immediately implement the decision or recommendation and/or take the preventative or corrective action required by the outcomes of the external complaints or appeal process made in favour of the international student.

Please refer to Student Complaints and Appeals Policy and Procedure.

Additional requirements (Standard 11)

Standard 11 incorporates requirements previously contained in Part C of the National Code 2017. It specifies that registered providers must seek approval from their ESOS agency regarding the course duration, modes of study,number of international students enrolled at the provider within the limit or maximum number, and arrangements with other education providers.

Standard 11 also includes criteria the registered provider must demonstrate to the ESOS agency in applying to register a full-time course at a location. A registered provider must submit any proposed changes to the registration of courses to its ESOS agency for approval at least 30 days prior to the change commencement date. Self-accrediting registered providers must undertake an independent external audit during their period of CRICOS registration, within 18 months prior to renewal of that registration to inform the re-registration of the provider.

To read the National Code 2018 in more detail, please visit https://www.legislation.gov.au/Details/F2017L01182.

The ESOS Agency for TOP is TEQSA.

Contact Details

Students and staff can contact TOP’s General Counsel for further information or explanation via policy@top.edu.au.

Reference List

National Code 2018 Factsheets
https://internationaleducation.gov.au/Regulatory-Information/Pages/National-Code-2018-Factsheets-.aspx