The National Code of Practice for Providers of Education and Training to Overseas Students 2007 (National Code 2007) has set the standards and procedures for schools and other providers registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) for many years. The National Code 2007 is under review and despite expectations that a revised, final Code would be released by mid-2017, no such Code has been released. According to the Consultation Paper, the new National Code was to be called the National Code 2016. Instead, the Federal Minister for Education and Training has released an Interim Code known as the National Code of Practice for Providers of Education and Training to Overseas Students 2017. Understandably, there is some confusion around the sequence of events surrounding the repeal of the National Code 2007, the proposed new National Code 2016 and now, the introduction of the Interim Code.
Reforming the National Code 2007
There is no doubt that all CRICOS registered schools with overseas students currently enrolled would be aware that the National Code 2007 is under review. The proposed changes were aiming to modernise and simplify the National Code and increase protections and support for international students following the amendments to the ESOS Act in December 2015 that took effect on 1 July 2016. A summary of proposed changes to the National Code can be found in a recent School Governance article. As noted within that article, ‘the changes that have been proposed seem to be a genuine attempt to streamline the current compliance requirements for schools. In addition, the language also seems to be a little more user friendly and in plain English.’
The consultation period for the new National Code followed intensive discussions with peak bodies in late 2016 and ran for roughly one month commencing on 13 February this year. There were nearly 100 submissions received from universities, schools, international, national and state and territory educational bodies, and bodies representing a variety of education sectors. The proposed changes in the Consultation Draft, including the reduction of the 15 Standards to 11 Standards, were broadly supported right across the sector.
However, despite expectations that the new National Code 2016 would be ready by mid-2017, its release has been delayed.
Repeal of the National Code 2007 and introduction of Interim Code
On 1 April 2017 the National Code 2007 was repealed by the Federal Government. Since that date another version of the Code has been released, the Interim Code. But are schools and other CRICOS providers, aware of the Interim Code?
There has been no announcement by the Federal Department of Education and Training (Department). Furthermore, the ESOS section of the Department's website references the fact that the Code is being revised but then when discussing the role of the Code, directs people to the repealed, outdated National Code 2007, not the Interim Code. This is somewhat confusing!
What does this all mean?
Ultimately, there is no reason to panic about the mixed messages come from the Department. Section 5 of the Explanatory Statement for the Interim Code, stipulates this important information: "Extensive consultation is being undertaken on the new National Code. Consequently, it is not necessary to consult on this instrument which substantially mirrors and replicates the National Code 2007 which was itself, the subject of extensive consultation."
Within this Ministerial Explanatory Statement, it is also noted that the Interim Code "makes a number of clerical changes to the National Code 2007 to update terminology for consistency with terms used in the ESOS Act as amended in 2015 and also to effectively align the National Code with legislative changes made to streamline the registration process under the ESOS Act, which took effect on 1 July 2016’. ‘This instrument is an interim measure pending the making and commencement of the new National Code later in 2017."
Missing Explanatory Guide
On its website, the Department describes an electronic Explanatory Guide for the Interim Code that is designed to provide assistance to all education providers. However, although there is commentary regarding this Guide and explanations as to how it works, there is no link to the Guide, nor can it be found on the website. CompliSpace has raised this matter with the Department but at time of publication of this article, no response was forthcoming.
Nonetheless, according to the Department, the Explanatory Guide mirrors the original National Code structure of Parts A, B, C and D, and places particular emphasis on the 15 standards in Part D, which cover:
- Standards 1–4: pre-enrolment engagement of students;
- Standards 5–6: care for and services to students;
- Standards 7–8: students as consumers;
- Standards 9–13: the student visa programme; and
- Standards 14–15: staff, educational resources and premises.
The Interim Code now includes references to national regulators as well as state and government authorities, the Education Services for Overseas Students (TPS Levies Act) 2012, The Tertiary Education Quality and Standards Agency (TEQSA), The Australian Skills Quality Authority (ASQA) and The Department of Immigration and Border Protection (formerly known as DIAC). More importantly, it includes references to schools in more detail throughout Sections A-C of the document. This in itself provides greater clarity for schools seeking to be compliant with the Interim Code.
Apart from the additions noted above and the Minister’s comments that the document "makes a number of clerical changes to the National Code 2007 to update terminology for consistency with terms used in the ESOS Act as amended in 2015", there are almost no changes in any of the 15 Standards (apart from replacement of out of date acronyms) between the National Code 2007 and the National Code 2017 (Interim Code).
Therefore, until the new National Code is introduced, the Interim Code will stand in its place. Interestingly, it has a ‘sunset clause’ date of 01 October 2027 but one would hope, given the consultation process and urgency to align with the changes to the ESOS Act in 2016, that the final National Code 2016 would be available within the next few months. We have to wait and see.