National Code Part C: Explanatory guide for sections 3–5

 

3.   

Providers can only be registered on CRICOS where they have been approved by the designated authority to provide courses of education or training to overseas students in that state. This approval can only be given where the provider to be registered has been found to comply with all the requirements for registration under the relevant state or territory legislation and Section 9 of the ESOS Act. This includes complying with the requirements of the National Code.

4.

Registration on CRICOS is for a particular course for a particular state. A provider wishing to provide courses in more than one state must seek registration for each course in each state where it will be delivered.

5.

In the event that a change of ownership of the registered provider results in a change to the previous legal entity registered on CRICOS, the new entity must obtain its own CRICOS registration.

 

Key issues

  • Requirements may vary across jurisdictions due to non-ESOS differences in relevant state/territory legislation.
  • As of 1 July designated authorities will be able to consider registration of a course that includes an interstate component.

 

What Part C sections 3–5 involves

The CRICOS process builds on domestic accreditation and regulation processes for education providers and sectors, where such frameworks exist. Currently domestic accreditation frameworks have been established for schools, vocational education and training providers, and higher education providers. Frameworks are current being developed to cover the ELICOS and Foundation sectors.

In order to be registered to deliver education services to overseas students you need to be assessed by a state/territory designated authority as a school; a registered training organisation; a provider of foundation courses or ELICOS (English language intensive courses for overseas students); a self-accrediting or non self-accrediting Higher Education provider.

Providers should approach the designated authority in their state or territory in order to begin the registration process. Please see contact details for each of the designated authorities.

Section 9 of the ESOS Act refers to matters such as: residency, initial registration charges, fit and proper person test, and advice from the designated authority to DEST about compliance with the National Code 2007 and its recommendation that a provider be registered.

Change in legal entity

Section 5 of Part C of the National Code 2007 requires that in the event that a change of ownership of the registered provider results in a change to the previous legal entity registered on CRICOS, the new entity must obtain its own CRICOS registration.

Any change to the legal entity, regardless of how simple or straightforward the change may appear, constitutes provider default. While the course may continue to be offered at the same venue, with the same curriculum and teachers, the change in legal entity and corresponding change in CRICOS registration has the same effect as the provider ceasing to provide the course. 

Section 27(1)(b) of the ESOS Act, applicable where the course ceases to be provided at any time after it starts but before it is completed, entitles students to a refund of course money. Section 29 of the ESOS Act specifies conditions associated with the refund to be offered to affected students. While the ESOS Act requires that students must first be offered a refund, Section 31 allows the provider to satisfy its liability through alternative arrangements, such as offering the student a place in the equivalent course with the new provider. If the student elects to accept this offer, he or she must do so in writing and the provider and student must enter into a written agreement for the course. 

Where the change of ownership does not result in a new legal entity, any new owners or managers will be subject to the ‘fit and proper’ test required under Section 9(6) of the ESOS Act.

Terminology

ESOS Act stands for Education Services for Overseas Students Act 2000

Non self-accrediting higher education provider is a provider which is not established by or under relevant Australian Government or state or territory government legislation with the authority to accredit its own course, or a provider which is operating outside of its state/territory of establishment.

 

Questions and answers

 

Q   

Education Pty Ltd has sold its training provider business to Training Pty Ltd. Does Training Pty Ltd have to seek new CRICOS registration, if the same staff are delivering the same courses in the same building to the same students?

A

Yes. The training provider is now owned by Training Pty Ltd, a different legal entity. CRICOS registration is not transferable from Education Pty Ltd to Training Pty Ltd. Training Pty Ltd will have to seek CRICOS registration. If Training Pty Ltd is not already a Registered Training Organisation (RTO) it will first have to seek registration as an RTO.

As Education Pty Ltd can no longer provide students with the course, this is an example of provider default. Students will be entitled to a refund, or with the students’ agreement, placement in a suitable alternative course arranged by the provider or their tuition assurance scheme.

Q

A student is undertaking the Bachelor of Education with a University in the ACT. Can the University have an arrangement with schools in NSW for students to undertake teaching practicum?

A

Recent amendments to the ESOS Act 2000 mean that it is now open to designated authorities to consider registration of a course that includes an interstate arrangement. In considering whether to approve the arrangement, the designated authority will take into account monitoring of the arrangement, as the state authority that approved the arrangement will have responsibility for monitoring compliance with the requirements of the ESOS Act and the National Code 2007.

Part C Sections 3–5 links to Standard 15 and Sections 8 and 9 of the ESOS Act.