The ESOS legislative framework

Review of the framework

The ESOS legislative framework is currently undergoing a reform process.

A discussion paper, ‘Reform of the ESOS framework’, was released in October 2014 to seek views from international education stakeholders on opportunities to improve the ESOS framework, including the National Code.

 In December 2015, changes to the ESOS Act were passed by the Australian Parliament.

 The National Code is the next step in the reform process. Formal public consultations on the National Code are expected to commence in the second half of 2016. Key priority areas include:

  • providing more flexibility for digital learning and other innovative education delivery modes
  • clear and comprehensive welfare arrangements for students under the age of 18
  • clear and streamlined monitoring requirements for course progress and attendance
  • increased transparency in written agreements between an education provider and international student.

Education Services for Overseas Students Act 2000

The Education Services for Overseas Students Act 2000 (ESOS Act) sets out the legal framework governing delivery of education to international students in Australia on a student visa. The Australian Government, through the Department of Education and Training, administers the ESOS Act and its associated instruments.
The Education Services for Overseas Students Act 2000 (ESOS Act) governs:

  • the registration process and obligations of registered international education providers
  • the Tuition Protection Service
  • enforcement and compliance arrangements. 

In December 2015 changes to the ESOS Act passed by the Australian Parliament removed unnecessary red tape and streamlined the Act with domestic quality assurance frameworks administered by the Tertiary Education Quality and Standards Agency (TEQSA) and the Australian Skills Quality Authority (ASQA).
Three measures in the new legislation came into effect on 14 December 2015 to directly reduce administrative costs for education institutions. For more information see fact sheets outlining the changes to:

Other changes that simplify registration and regulatory processes take effect from 1 July 2016 and can be found here:

National Code of Practice for Providers of Education and Training to Overseas Students

The National Code of Practice for Providers of Education and Training to Overseas Students (the National Code) provides nationally consistent standards for the conduct of registered providers and the registration of their courses.

The standards set out requirements and procedures to ensure providers of education and training courses to international students can clearly understand and comply with their obligations under the National Code.


ELICOS Standards

English Language Intensive Courses for Overseas Students (ELICOS) are central to Australia’s international education sector. Students come from overseas to study the English language for a variety of reasons. Some need to improve their English for work or career purposes, some have a personal interest in becoming fluent in English, and some intend to travel. Other students may want to continue their education in English, either in Australia or elsewhere, and need to develop the necessary language skills to undertake further study. The ELICOS Standards enhance Australia’s reputation as a provider of world class international education and help attract high quality international students to Australia.

The 2011 ELICOS Standards were developed by the Australian Government and state and territory governments in consultation with the ELICOS sector. The ELICOS Standards became an enforceable legislative instrument under the Education Services for Overseas Students Act in 2011. ELICOS providers wanting to be registered on CRICOS need to meet the Standards.

Proposed amendments to the English Language Intensive Courses for Overseas Students (ELICOS) Standards

The ELICOS Standards are used by regulatory authorities to make decisions on the acceptance of providers to be registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) under the ESOS legislative framework.

The ELICOS Standards are being reviewed to address issues relating to the delivery and registration of English courses on CRICOS.
The Australian Government is of the view that to uphold Australia’s strong quality international education standards and maintain an appropriate level of intensity and support in English courses which are delivered to overseas students, all English language courses should fall under the ELICOS Standards, regardless of the sector in which they are registered on CRICOS.

Broadening the definition of ELICOS in the Standards will ensure that all providers of intensive English language courses to overseas students are bound by the requirements of the ELICOS standards.

A number of other changes are proposed including clarifying that the scheduled course contact hours for ELICOS is 20 hours of face-to-face tuition per week; strengthening requirements in relation to student assessment and how providers should structure courses for under 18 students; and clarifying the strategy for assessing achievement of learner outcomes, samples of certification of completion and partial completion, and course syllabus.
The Australian Government invites all international education stakeholders and interested parties to comment on a consultation draft of the revised ELICOS Standards. The consultation draft and submission template are available on the ELICOS Review page on the education website.

The closing date for submissions is 5.00 pm AEST, Friday 11 August 2017.


Foundation Program Standards

Foundation programs are courses designed for international students to equip them with the skills and capabilities to seek entry into higher education programs in Australia. Generally, foundation programs provide an academic entry pathway to first year undergraduate study or its equivalent.

The Foundation Program Standards must be met by all foundation program providers wanting to be registered on CRICOS.


Education Services for Overseas Students Regulations 2001

The Education Services for Overseas Students Regulations 2001 (ESOS Regulations) support the implementation of the ESOS Act by setting out:
  • information that must be entered on the register about the provider and each course by location
  • student details that providers must include on the Provider Registration and International Student Management System (PRISMS)
  • information about students that providers must give relating to student visa conditions
  • penalties and infringement notices
  • student records that a provider must keep.
From 1 July 2016 the ESOS Regulations will be updated to reflect amendments to the ESOS Act and to remove duplicative or unnecessary data items, including:
  • details of the Immigration office where the student’s application for a student visa was made
  • institutions’ fax numbers.
The reference in the ESOS Regulations to Overseas Students Health Cover (OSHC) information has been removed as this is a requirement under the Migration Regulations. More information on changes to the way OSHC is verified by the Department of Immigration and Border Protection is available from their website:
The Regulations will also now require a provider to inform the ESOS agency of any changes in course location to ensure course location data is up-to-date.

Education Services for Overseas Students (Registration Charges) Act 1997

The Education Services for Overseas Students (Registration Charges) Act 1997 imposes registration charges in relation to Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS). All registered providers are liable to pay an annual registration charge for the year. The relevant charges are detailed in this Act.  New entrants may pay an entry to market fee for the first three years.

The Education Services for Overseas Students (TPS Levies) Act 2012

The Education Services for Overseas Students (TPS Levies) Act 2012 contains provisions to require providers to pay fees and levies to fund the Tuition Protection Service. The first annual TPS levy was applied in 2013.

Key Legislative Instruments

This legislative instrument appoints the National VET Regulator, ASQA, as the ESOS agency for some non-VET aviation providers until the end of March 2018, while those providers transition to new regulatory arrangements under the amended ESOS Act.
Education Services for Overseas Students (Calculation of Refund) Specification 2014
International students are entitled to receive a refund from their provider if:
  • the provider defaults
  • the student’s visa application is refused.
The refund instrument sets out requirements for refunds and are available. Education providers cannot retain more of students’ unspent tuition fees than the refund instrument or their written agreement with the student allows.
Students will be eligible for a refund of ‘unspent tuition’ fees. This specification outlines a method for working out the amount of ‘unspent tuition fees’ for the purposes of calculating refunds.