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International Education

National Code Part D, Standard 3

Formalisation of enrolment

Explanatory Guide for Standard 3

Please note this explanatory guide applies to the National Code 2017 and will not apply after 1 January 2018. Factsheets on the National Code 2018 are available here.

Frequently asked questions on this page:

Written agreement
Course money
Refunds
Privacy
Provider default

Written agreements between registered providers and students set out the services to be provided, fees payable and information in relation to refunds of course money.

This standard ensures the obligations and rights of both the provider and the student are clearly set out, including the course money payable and services the provider is obliged to supply.

Key requirements for all sectors:

The provider must enter into a written agreement with the student before (or at the same time as) accepting course money from the student.
The written agreement must contain, as a minimum, the information specified in 3.1.
Information about the refunds of course money must cover, as a minimum, the information specified in 3.2.
Under the National Code 2007, providers are required to have a written agreement with each student, whereas under the National Code 2001 written agreements were optional. The provider must not accept course money from the student before this agreement has been signed or otherwise accepted (for example, through online acceptance).
The written agreement must:

include information about the provider’s refund policy;
set out the circumstances in which personal information about the student may be shared with others; and
advise the student of his or her obligation to notify the provider of a change of address while enrolled in the course.

What this standard involves:

3.1	The registered provider must enter into a written agreement with the student, signed or otherwise accepted by that student (or the student’s parent or legal guardian if the student is under 18 years of age), concurrently with or prior to accepting course money from the student. The agreement must:
	a.	identify the course or courses in which the student is to be enrolled and any conditions on his or her enrolment
	b.	provide an itemised list of course money payable by the student
	c.	provide information in relation to refunds of course money
	d.	set out the circumstances in which personal information about the student may be shared between the registered provider and the Australian Government and designated authorities and, if relevant, the Tuition Protection Service. This information includes personal and contact details, course enrolment details and changes, and the circumstance of any suspected breach by the student of a student visa condition; and
	e.	advise the student of his or her obligation to notify the registered provider of a change of address while enrolled in the course.

The provider and students must enter into a written agreement that includes all the detail outlined in Standards 3.1 and 3.2. This agreement must be signed or otherwise accepted. This means students can sign a form or indicate their acceptance online. Students under the age of 18 will need their parent or legal guardian to sign/accept on their behalf. If a provider is going to recognise online acceptances, it will need to consider how to verify the authenticity of an online acceptance. While providers’ systems for receiving online acceptances do not have to be approved by the Department of Education prior to implementation, providers using such systems must be able to demonstrate that the student entered into the agreement with them.
The provider cannot accept course money from the student until the student (or the student’s parent or legal guardian if the student is under 18) has signed or otherwise accepted the agreement. The provider may accept course money received at the same time as the verification of acceptance (for example, if a student sends a signed acceptance with an accompanying payment or brings the payment along with the accepted agreement into the provider’s office). The provider can speed up the agreement/payment process by enclosing with the letter of offer the written agreement and a note informing students that they must not pay until the provider receives the accepted agreement.
If a student or agent in the same physical location as the provider offers the provider course money, the provider should not accept this money if it has not received the accepted written agreement. In this case, the provider should tell the student or agent that it cannot accept course money until the accepted written agreement has been received. If the student or agent is unable to supply the accepted written agreement at that time, the provider must not accept the payment.
If the provider receives course money sent by mail (for example, by cheque or money order) before receiving the accepted written agreement, the provider should not use the money. The provider should immediately contact the student or agent to inform them that the payment cannot be processed (and the enrolment cannot progress) until the provider receives the accepted written agreement.
As some providers will accept payments by direct payment into their bank accounts, it is possible that payments may inadvertently be received in the account prior to the accepted written agreement reaching the provider. In this case, providers should not use the course money received and should immediately contact the student or agent to inform them that the payment cannot be processed (and the enrolment cannot progress) until the provider receives the accepted written agreement. For compliance purposes providers should record on file the action taken to notify the student that their enrolment cannot be progressed and keep evidence that the money has not been used. Providers should also consider at what point they would consider returning money if no agreement is forthcoming. Providers should actively discourage the receipt of money into their accounts prior to the receipt of the written agreement by instructing students (for example, in a note enclosed with the letter of offer) to send the accepted agreement through to the provider before arranging electronic payment. Providers may choose to accept a faxed copy of the accepted agreement as notification of acceptance.
As well as identifying the course/s in which the student is to be enrolled, the provider must also identify any conditions on the enrolment. Examples of conditions on enrolment are when acceptance of the student is conditional upon the student completing a pre-requisite course or on attaining a certain level of English language proficiency.
Students must be made aware of their obligation to notify the provider if they change address while enrolled in the course, so a statement of this obligation must be included in the agreement.
Standard 3.1 b. requires that the agreement must provide an itemised list of course money payable by the student. Section 7 of the ESOS Act states that course money means money a provider receives, directly or indirectly from:

an overseas student or intending overseas student;
or
another person who pays the money on behalf of an overseas student or intending overseas student;

for a course that the provider is providing, or offering to provide, to the overseas student. This includes tuition fees, any amount received by the provider for overseas student health cover, and any other amount that the student had to pay to the provider in order to undertake the course.

3.1 d. requires the provider to set out the circumstances in which personal information about the student may be shared with others. The Department of Education has created suggested wording (pdf 22kb, rtf 56kb) that providers may use to meet this requirement. This wording is based upon:

The National Code 2007 – Standard 3.1 d.
The ESOS Act 2000 (as amended 1 January 2007) – Sections 19 and 175
The ESOS Regulations 2001 – Regulations 3.01, 3.02 and 3.03
The Privacy Act 1988, Section 14 – Information Privacy Principles
Plain English Guidelines to Information Privacy Principles 8–11.

For more information about the requirements under Standard 3.1 d., please see the Q & A below.

For guidelines to the Information Privacy Principles which underpin this requirement, please visit the Office of the Australian Information Commissioner website: under Guidelines – Information Privacy Principles (there are three guideline documents).

3.2	The registered provider must include in the written agreement the following information, which is to be consistent with the requirements of the ESOS Act, in relation to refunds of course money in the case of student and provider default:
	a.	amounts that may or may not be repaid to the student (including any course money collected by education agents on behalf of the registered provider);
	b.	processes for claiming a refund;
	c.	a plain English explanation of what happens in the event of a course not being delivered; and
	d.	a statement that “This agreement, and the availability of complaints and appeals processes, does not remove the right of the student to take action under Australia’s consumer protection laws”.

The content of a provider’s written agreement does not have to be limited to the requirements under Standard 3.2 – these are minimum requirements. A provider’s agreement may contain additional content, as long as this content does not contradict the requirements of the ESOS Act 2000 and the ESOS Regulations 2001.
For details of the requirements of the ESOS legislative framework in relation to refunds of course money in the case of student and provider default, please see the ESOS Act 2000, Sections 27–32 and the ESOS Regulations 2001, Regulation 3.19.
Standard 3.2c requires providers to include in the written agreement a plain English explanation of what happens in the event of a course not being delivered. This explanation does not have to be lengthy – the intention is to let students know about the consumer protection offered to them under the ESOS legislative framework.

Compliance tips

For a provider to show it is complying with Standard 3, it may need some of the following as evidence:

signed agreements or printouts of online agreements on student files
the current written agreement template (and historical versions if the agreement template has changed since its inception)
a copy of the provider’s refund policy, if separate from the written agreement.

Common questions and answers

Please note: The principles in examples below can be applied to all sectors.

Written agreement

Q	Does a student sign more than one written agreement if they are enrolling in a package of courses being offered by different providers?
A	The student must enter into a written agreement with each provider they are enrolled with. A package may comprise multiple CoEs or CoEs and a letter of offer. The student must sign an agreement with each provider before, or at the same time, as they give course money to the provider.
Q	Will a provider be compliant with Standard 3 if they refer students to other information sources and get the student to tick a box to confirm they understand the components of a Written agreement?
A	No. A provider will not be compliant if they simply refer a student to where they can find the information on the matters specified in 3.1 and 3.2. Information that MUST be included in the written agreement includes: the provider’s refund policy the circumstances in which personal information about the student may be shared with others the need to advise students of their obligation to notify the provider of a change of address while enrolled in the course.

Q	How does a provider who accepts electronic payment for course fees maintain compliance with the Standard 3.1 requirement to enter into a written agreement with the student “concurrently with or prior to accepting course money” ?
A	Students should not pay any course money until they have signed their written agreement. The following procedure would ensure compliance with Standard 3.1: 1) Student completes an application form 2) University XYZ sends an Offer of enrolment and pre-enrolment information 3) Student sends a Response to offer 4) University XYZ sends a CoE/invoice/written agreement (with advice that payment should only be made after the written agreement has been returned) 5) Student signs and returns written agreement 6) University XYZ receives written agreement 7) Student pays online.
Q	Can a provider accept money from a student before entering into a written agreement with the student?
A	No. Standard 3.1 requires that a provider must enter into a written agreement with the student, signed or otherwise accepted. This agreement must be accepted by the student at the same time as, or before, the provider can accept course money from the student.

Timing of acceptance of course money

Blackwood College offers qualifications in Security Service Studies to both domestic and overseas students. Marwan has decided to pursue a career in security services and, having read through Blackwood College’s promotional materials and pre-engagement information, is ready to enrol in the Advanced Diploma of Security Service Studies. Marwan sends through a money order for his first semester’s tuition. Shortly afterward, the college contacts Marwan and tells him that he must acknowledge (by signature or online) that he accepts the terms of the written agreement before the college can accept his payment. The college does not process the money order until it receives Marwan’s acknowledgement.

Note:

The college has taken appropriate action by contacting Marwan and clarifying that his payment cannot be accepted until he accepts the terms of the written agreement. If the college accepted his payment without a written agreement in place, it would be in breach of the National Code.

Q	If a student will be enrolled in a number of consecutive courses with the one provider, will the provider and student need to enter into a written agreement for each of the courses?
A	Not necessarily. The written agreement may relate to one or more courses to be undertaken with the same provider as long as the terms of agreement are the same for each of the courses. However, if a provider and student enter into a single agreement for more than one course, all of the courses to which the agreement applies, and any conditions upon enrolment in each of the courses, must be clearly listed in the agreement. In addition, an itemised list of fees payable for each course the agreement covers must be included. If all of the terms of agreement are the same for each of the courses in which the student will be enrolled, both providers and students may find it more convenient to have just the one agreement to cover all of the courses. If a provider chooses to enter into separate agreements for each of the courses, it would be logical to link each agreement to the CoE to which it applies.
Q	Standard 3.1 d requires providers to set out the circumstances in which information about the student may be shared between the registered provider and the Australian Government and designated authorities and, if relevant, the Tuition Assurance Scheme and the ESOS Assurance Fund Manager. Which circumstances are covered by this requirement?
A	Information may be shared between the above agencies for the purposes of: promoting compliance with the ESOS Act and the National Code assisting with the regulation of providers promoting compliance with the conditions of a particular student visa or visas, or of student visas generally facilitating the monitoring and control of immigration.

The following are examples of situations in which information sharing may occur:

when there is concern about a student breaching visa conditions relating to attendance or course progress
when there are changes to the student’s enrolment
when a provider fails to offer a course in which the student is enrolled.

Note:

Providers may be subject to the Privacy Act 1988 and/or state or territory privacy legislation. In either case, exemptions to information sharing exist, particularly in case of emergencies or law enforcement activities.

For further information about circumstances in which information may be shared, please see:

Sections 19 and 175 of the ESOS Act
Section 488A of the Migration Act 1958; and
Section 14 (Information Privacy Principles) and Schedule 3 (National Privacy Principles) of the Privacy Act 1988.

The Office of the Privacy Commissioner has prepared Guidelines to the National Privacy Principles and information sheets relating to the application of the Privacy Act by organisations. Please visit the website.

For the Plain English Guidelines to the Information Privacy Principles, please visit the website: under Guidelines – Information Privacy Principles (there are three guideline documents).

Standard 3.1 e. requires providers to advise the student of his or her obligation to notify the registered provider of a change of address while enrolled in the course. Why is this necessary?

Providers must have a student’s current address. Section 21 of the ESOS Act requires an Education Provider to maintain a students current address and to update the address in PRISMS every six (6)months. Under subsection 19(2) of the ESOS Act providers are required to report to the Secretary breaches of a student visa as soon as practicable after the breach occurs. This report is automatically sent to DIBP. Under Standards 10 and 11 of the National Code providers are required to send students a written notice of intention to report them for visa breaches relating to attendance and course progress.

DIBP will consider all the information and if they decide to consider cancellation will send a Notice of Intention to Consider Cancellation (NOICC) to the address. This will give the student an opportunity to respond to the NOICC and explain their situation.

Note:

Student visa condition 8533 requires student visa holders to notify their education providers of any change to their residential address. For further information about student visas, please visit the DIBP website.

Under Section 21 (2) of the ESOS Act, providers are required to keep records of each accepted student’s current residential address, as supplied by the student.

Course money

Can a school enrol a student without assessing their English language level prior to enrolment? Can the school then charge additional fees for English language tuition in school hours?

If a minimum level of English language is required for enrolment the provider must assess the level before accepting the student.

If there is no minimum level the provider may accept the student and offer English language support. If this support is in school hours – and the provider intends to charge additional fees for this – they must inform the student before the student enrols.

Refunds

What information about refunds should be provided in the written agreement?

Under Standard 3.2, providers are now required to include information about what would happen in the case of both student and provider default. This information should include: amounts which may or may not be refunded; processes for claiming a refund; a plain English explanation of what happens should a course not be delivered; and the statement that “This agreement, and the availability of complaints and appeals processes, does not remove the right of the student to take action under Australia’s consumer protection laws”.

If the provider neglects to include this information, it is breaching the National Code. The refund policy would be deemed non-compliant and any refunds payable to students would need to be made under the provisions of Section 29 of the ESOS Act.

Does a provider give a student a refund if they have paid 12 months in advance but transfer to another provider after six months?

The student’s decision to transfer is considered “student default” because they are defaulting on their enrolment. The provisions of your refund policy will apply as long as the policy is compliant with the requirements of the ESOS Act 2000 and National Code 2007.

Standard 3.2(a) requires that the written agreement include amounts that may or may not be repaid to the student. Providers should ensure that students are aware of the transfer and refund policies when they enrol at their institution. Students should know if they will get a refund if they default on their enrolment.

Privacy

If a provider has obtained information from a student specifically for the purposes of compliance with ESOS and migration legislation, can that information be used for other purposes?

Under the Privacy Act 1988, information collected from individuals for one purpose may not be shared for purposes other than that for which it was collected without permission from the individuals affected.

When enrolling students, providers may find the information they ask of students (especially contact details) may be required for multiple purposes (for example, for general correspondence from the provider). Information provided by students may be used for multiple purposes as long as students were made aware of the purposes for which the information will be used, and they agreed to provide information for these purposes.

For the Plain English Guidelines to the Information Privacy Principles, please visit the privacy website: under Guidelines – Information Privacy Principles (there are three guideline documents).

The Office of the Privacy Commissioner has prepared Guidelines to the National Privacy Principles and information sheets relating to the application of the Privacy Act by organisations.

Provider default

How does Standard 3.2(c) apply to exchange and study abroad students studying on a student visa who are enrolled in subjects rather than courses?

The requirements apply to the course. When the student is enrolled in subjects – not a programme – the refund provisions apply if the provider defaults on offering the subject(s) the student enrolled in.

If the student has paid their home institution fees for the course, the onshore Australian provider must still explain what circumstances will prevail if the provider defaults.