According to the Minister for Education, the number of overseas students taking advantage of Australia’s world-leading education system has already broken through the half-a-million mark for 2018 with overseas student numbers growing 12 per cent to 509,610 in the year to February 2018, on top of a 54 per cent increase over the previous five years.

With this general increase in overseas students, it is important that schools are aware of their new compliance obligations under the National Code and the major risks which need to be addressed when providing education to overseas students in accordance with their CRICOS registration requirements.

Background to the Legislative Framework

As discussed in our previous article, schools don’t just have to comply with the 2018 National Code to ensure that they maintain their CRICOS registration – they have to comply with the entire Education Services for Overseas Students (ESOS) Framework.

The ESOS Framework is made up of seven key laws, regulations and legislative instruments:

• Education Services for Overseas Students Act 2000 (Cth)
• Education Services for Overseas Students Regulations 2001 (Cth)
• National Code of Practices for Providers of Education and Training to Overseas Students 2018 (National Code)
• Migration Act 1958 (Cth)
• Migration Regulations 1994 (Cth)
• English Language Intensive Courses for Overseas Students (ELICOS) Standards 2018
• ESOS (Calculation of Refund) Specification 2014 (Cth).

Various Standards in the National Code directly require compliance with elements of the ESOS Framework in addition to the Code itself. It is up to schools to understand what parts of the legislation they need to comply with. Additionally, various jurisdictions have state or territory-based legislation and guidelines that schools must meet to ensure their continued registration to educate overseas students.

Prior to Enrolling Overseas Students

There are two key risk areas for a school prior to enrolling an overseas student: marketing messaging and the use of education agents.

Marketing Messaging

There is a new requirement in the National Code (Standard 1) for any marketing materials distributed, or communications made, by the school or an agent of the school (this includes education agents) to not be false or misleading, make no false promises and provide no guarantees of success in education assessments or migration outcomes. There is a particular risk here as, for most students and parents, English will not be their native language, and some marketing messages may be distorted or unclear. Schools should consider having marketing materials translated into the most common native languages of their targeted overseas students markets to avoid conveying a potentially misleading message.

Education Agents

In the pre-enrolment stage, education agents are a key risk for schools when sourcing overseas students. Under the National Code (Standard 4), there are increased requirements on schools in relation to their use, monitoring and reporting on the actions of education agents. Schools must require their agents to:

• declare and avoid conflicts of interest
• observe appropriate levels of confidentiality and transparency
• act honestly and in good faith, and in the student’s best interest
• have knowledge of the international and Australian education systems.

A school must also act immediately if they find out an education agent is dishonest or lacks integrity - this can often happen if education agents guarantee successful education assessments or migration outcomes, in contravention of the National Code rules about marketing messaging. Education agents are unable to provide immigration advice unless they are a registered Migration Agent under the federal Migration Act 1958 (Cth), and must engage in honest recruitment practices including only enroling suitable students. Schools should consider mitigating their risks with education agents by personally vetting their agents (and potentially their subcontractors) and providing approved speaking points or a script to education agents about the school and how they deliver courses to overseas students.

The Enrolment Contract

A school's enrolment contract with an overseas student, despite mirroring many non-government school enrolment contracts, has new compliance obligations imposed by the National Code. Specifically, the enrolment contract must now be in writing, in plain English, and include nine mandatory provisions which include items like course dates, prerequisites, privacy information and tuition fees (all listed in Standard 3 of the National Code).

It is important for a school to manage parents' expectations at the outset of the relationship, especially before signing the enrolment contract, and the same issues with English as a second language apply to the understanding of the enrolment contract by the parents or student. Schools should consider outlining to parents personally some of the following elements of the school's operations:

• active monitoring of the student visa and when a student is at risk of unsatisfactory course progress or attendance
• education requirements are as applicable to overseas students as they are to other students currently enrolled at the school
• welfare support is available to the student
• ESL support is available to the student
• expectations regarding homestay or other accommodation arrangements
• payment of school fees and when refunds or defaults will apply.

Hosting the Overseas Student

A key risk for schools once an overseas student commences at the school is the provision of welfare and accommodation arrangements as outlined in the National Code (Standards 5 and 6). The National Code, as mentioned in our previous article, has:

• introduced additional measures to strengthen the welfare of younger overseas students
• referenced other regulatory requirements, including state and territory child protection requirements
• created a new requirement to provide child protection training to students, including information on who to contact in emergency situations and in cases of abuse
• increased accommodation approval and verification requirements for schools
• increased requirements for supporting students to achieve expected learning outcomes
• created a new requirement to take all reasonable steps to provide a safe environment on campus and give students information on seeking assistance and reporting incidents impacting on their wellbeing, and safety and awareness relevant to life in Australia.

Schools need to be aware that they will have a continuing role in the welfare and accommodation of overseas students, including:

• staying in touch with host families and inspecting the host premises regularly
• responsibility for managing critical incidents
• maintaining contact with the student's parents.

Schools should consider ways of staying in touch with homestay parents which are not intrusive, as well as innovative ways to communicate policies and procedures with overseas students and their parents which take account of any language or cultural barriers. This could include using visual aids, repetition or interpreters where necessary.

What Schools Should do Now

If your school is, or is planning to be, CRICOS-registered, implementing policies and procedures is essential to minimise risk, as is training staff in the implementation and practice of those policies and procedures. Schools must review all their overseas students policies and procedures in light of the significant National Code changes and develop specific risk management procedures for the key risk areas outlined in this article.