Foreign Bribery and Schools: Draft Legislation and Review of the Role of Education Agents

18 October 2018

Compliance with the 2018 National Code of Practice for Providers of Education and Training to Overseas Students 2018 (National Code), which took effect on 1 January 2018, is mandatory for all schools that provide education to overseas students as part of their CRICOS registration requirements. As part of that compliance, schools need to take account of their use, monitoring and reporting on the actions of any education agents they employ.

Background to the Legislative Framework

As discussed in our previous article, schools don’t just have to comply with the National Code to ensure that they maintain their CRICOS registration – they have to comply with the entire Education Services for Overseas Students (ESOS) Framework (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 National Code itself. Additionally, various jurisdictions have state or territory-based legislation and guidelines that schools must meet to ensure their continued registration to educate overseas students.

Education Agents

In the pre-enrolment stage, education agents are a key risk for schools when sourcing overseas students. Not only do obligations under the Migration Act 1958 (Cth) apply, but under the National Code (Standard 4), there are increased requirements imposed on schools in relation to their use, monitoring and reporting on the actions of education agents. Schools must require their education 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 it finds out that an education agent is dishonest or lacks integrity – this can happen if education agents guarantee successful education assessments or migration outcomes, in contravention of the National Code's rules about marketing messaging. An education agent is also not permitted to provide immigration advice unless they are a registered migration agent under the Migration Act 1958 (Cth), and must engage in honest recruitment practices by only enrolling suitable students.

Foreign Bribery

In April 2017, the Federal Government commissioned a consultation paper to identify weaknesses within Australia’s anti-bribery legislation, in line with domestic and international standards and expectations. The draft Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2017 (Bill) incorporates the consultation paper’s recommendations of:

  1. expanding the definition of foreign public official
  2. replacing the requirement that a benefit must be ‘not legitimately due’ with the concept of ‘improperly influencing’ a foreign public official
  3. removing the requirement that the bribe influenced the foreign official in the exercise of their official duties
  4. expanding the benefit sought to include benefits received by individuals i.e. personal advantage
  5. clarifying that the benefit sought could be for another person or business (not only the person who offered or provided the bribe)
  6. clarifying that the accused does not need to have a specific benefit in mind when offering or providing the bribe
  7. creating a new corporate offence of failing to prevent foreign bribery.

The Bill amends the Criminal Code Act 1995 (Cth) so that there will be two main foreign bribery offences – bribing a foreign official and failing to prevent the bribing of a foreign official. Each offence has different potential offenders and consequences. Any person can commit an act of bribing a foreign official, but only a body corporate or an associate of the body corporate (within the definition contained in the Bill) can be guilty of failing to prevent an act of foreign bribery. Schools with education agents for overseas students should be keenly watching the progress of the draft legislation to confirm the new applicability of the legislation related to bribing a foreign official to their education agents.

Federal Inquiry into Migration Agents and Education Agents

Additionally, on 27 June 2018, the federal government released the Terms of Reference for the inquiry into the efficacy of current regulation of Australian migration agents and education agents. The investigation includes the nature and prevalence of fraud, professional misconduct and other breaches by registered migration agents, the current review mechanisms for migration agents and the adequacy of penalties. The inquiry committee is also collecting evidence of the volumes and patterns of unregistered migration agents and education agents providing unlawful immigration services in Australia.

Both the Independent Schools Council of Australia and the Department of Education and Training have made submissions to the inquiry, which is in the midst of public hearings. In particular, they have focused on the new safeguards provided for schools through the Education Legislation Amendment (Provider Integrity and Other Measures) Act 2017 (Cth), which has allowed the Department of Education and Training to share information on the performance of education agents to the education providers that engage them. The reports show student enrolment outcomes and provider reliance in relation to particular agents, and encourage transparency about education agents’ performance. Despite the significant obligations placed on schools interacting with education agents (or migration agents who are also education agents) through the National Code, schools should also be aware of, and have a method for, assessing patterns of ‘unlawful’ or unethical behaviours by migration/education agents, and taking appropriate action, before the final report of the federal inquiry is released.

What Schools Can do to Prepare

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 the school deliver courses to overseas students. Schools should also be active users of the Department of Education and Training's reporting facilities on the outcomes and performance of education agents, and use this data to inform the selection, monitoring and reporting of their education agents employed to enrol appropriate overseas students.

Lauren Osbich

Lauren is a Content Development and Legal Research Consultant at CompliSpace. She has over ten years of experience in legal research and legal publishing, working nationally across Australia. She studied at Macquarie University completing a Bachelor of Laws with an Honours in English, followed by being admitted as a solicitor of the NSW Supreme Court. Lauren is also passionate about giving back to the community through the not for profit sector as well as donating time to mentor and coach young lawyers in their professional development and finding time to also be a member of a not for profit Board.