New ESOS Code has been released

21 September 2017

Previously in School Governance, we have reported and extensively monitored the status of the National Code of Practice for Providers of Education and Training to Overseas Students (ESOS National Code).  Over the last seven months, the National Code has been in a constant state of flux during consultation processes, the repeal of the National Code 2007 and the introduction of the interim National Code 2017.

Last Friday the Federal Government released the National Code 2018.  To ensure schools have sufficient time to respond to the changes, the National Code will commence from 1 January 2018. Ahead of the 1 January 2018 deadline, the Commonwealth Department of Education will work to comply with peak sector bodies to develop system changes, explanatory material and host webinars to assist the education sector with the changes.

The Consultation Process

In February 2017, the Commonwealth Department of Education and Training released a revised Consultation Draft to propose changes to improve and replace the National Code 2007.  These improvements included changes to:

  • better support students to succeed in their studies
  • improve regulatory requirements.

After considering nearly 100 submissions from universities, schools and  international, national and state/territory education bodies, the Federal Government has finally released the National Code 2018. The National Code 2018 adopts the Consultation Draft’s suggestion to streamline and reduce the regulatory burden of the current National Code. The new Code is essentially the same as the Consultation Paper.

The National Code 2018

The National Code 2018 is now divided into Parts A and B.  Part A explains the Education Services for Overseas Students (ESOS) Framework and the operation of the National Code 2018.

Part B has 11 standards which schools must comply with by the deadline.  The current 15 standards in the Interim National Code 2017 and the superseded National Code 2007 have been streamlined and compressed into the 11 standards. In March 2017, when the Consultation Draft for a new National Code was released, Craig D’Cruz, National Education Consultant with CompliSpace noted the “reduction of the 15 current standards to 11 will not only reduce the compliance burden on schools, the changes seem to better reflect and group the requirements of the Education Services for Overseas Students Act 2000 (ESOS Act).” Other than this new format the content is resembles the Consultation Paper

Summary of the National Code 2018 standards

A major change between the National Code 2017 and National Code 2018 is the format of the National Code itself. The structure of the National Code goes from Parts A-D in the National Code 2017 to just having Parts A and B in the National Code 2018. Part A of the National Code condenses previous parts A, B, and C to provide an overview of the National Framework and summarises the purpose of the National Code. Part B has the 11 standards.

Standard 1: Marketing information and practices.
This standard ensures schools uphold the integrity and reputation in the Australian education sector by ensuring that the marketing of services by schools or persons acting on behalf, are not false or misleading. The standard makes reference to the Australian Consumer Law, which prohibits false or misleading claims about products or services and provides other consumer protections.

Standard 2: Recruitment of an overseas student. Schools must recruit responsibly, prior to accepting overseas students for enrolment.  The recruitment information must be comprehensive, up to date, and in plain English. This standard ensures schools assist potential overseas students to make an appropriate and informed decision. It requires documented policies and procedures for assessing students’ English language proficiency, qualifications or experience to enter a course.

Standard 3: Formalisation of enrolment and written agreements. This standard regulates enrolment agreements and gives general guidance on what needs to be in the agreement. Schools are required to formalise the enrolment of students through written agreements which protect the rights of the overseas students and the school. These agreements need to set out the responsibilities of each party, services to be provided, fees payable and refund policies.

Standard 4: Education agents. Schools must comply with this standard when engaging an agent to represent them.  Schools must ensure their agents are acting ethically, honestly and in the best interests of the overseas student. If the school knows or reasonably suspects that an agent acts dishonestly or unethically, the standard sets out how to cope with such a situation.

Standard 5: Younger overseas students. This standard sets out requirements for providers, such as schools who enrol students under 18, to ensure younger students maintain continuous welfare arrangements during their study in Australia. The standard requires schools to: ensure they abide by state and territory child protection laws, staff have appropriate state and territory working with children clearances, give children a list emergency contacts, and have age and needs appropriate accommodation for younger overseas student.

Standard 6: Student support services. This standard specifies what student support services must be provided to overseas students to enable them to adjust to study and life in Australia.  The standard requires providers to have and implement a documents policy and process for managing critical incidents that can affect students’ ability to undertake or complete the course. Ensuring schools may effectively assist overseas students to adjust to life and study in Australia.

Standard 7: Overseas student transfers. This standard prohibits schools from knowingly enrolling another overseas student from another school prior to the student completing six months of their school course.  Schools should have a transfer policy in place to deal with this type of circumstance. This requirement is in place to reduce poaching of overseas students by other agents once they arrive in Australia.

Standard 8: Overseas student visa requirements. Schools must have clear measures in place for monitoring overseas students’ attendance and progress. This is to safeguard the integrity of Australian migration laws by supporting overseas students to complete their course within the required duration and fulfil the visa requirements specifically relating to satisfactory course attendance and course progress.

Standard 9: Deferring, suspending or cancelling the student’s enrolment. This standard requires schools to have processes in place for assessing requests to defer or suspend overseas student enrolment in limited circumstances.

Standard 10: Complaints and appeals. School must protect overseas students’ rights to natural justice through access to a professional, timely, inexpensive and documented complaints and appeals process. This represents the Federal Government’s commitment to ensuring overseas students have access to external and internal complaints and appeals processes.

Standard 11: Additional registration requirements. This standard ensures schools continue to meet the requirements for ESOS registration and ensure that ESOS agencies approve and hold up to date information on specific aspects of the schools and take appropriate enforcement action.

Important things for schools to note

The current National Code 2017 will remain in force until 31 December 2017.  When the National Code 2018 commences, there will be no transition period for compliance, so by that date, schools will need to ensure they have updated their policies and procedures to comply with the revised standards. But they should not panic as overall, there are less standards to comply with!

William Kelly

William is a Legal Research Coordinator at CompliSpace. He assists with drafting and reviewing policies and procedures, as directed, for CompliSpace clients as well as writing regular articles for the School Governance blog. William is a lawyer and an officer of the Supreme Court of Victoria.