Regulation of education providers
The international education industry is Australia’s third-largest export sector and the country’s leading service export sector. International students studying and living in Australia contributed $30.3 billion to the Australian economy in 2017.
Under the Education Services for Overseas Students Act 2000 (ESOS Act), international students can only enrol and study in Australia on a student visa with education providers registered under the ESOS Act and listed on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS).
In Australia education agents are not directly regulated. Education providers however are responsible for the regulation of education agents under the ESOS Act and National Code of Practice for Providers of Education and Training to Overseas Students 2018 (National Code).
The Department of Education and Training (DET) is responsible for administering the ESOS Act which:
…establishes legislative requirements and standards for the quality assurance of education and training institutions offering courses to international students who are in Australia on a student visa. This includes regulation of education providers that engage education agents to recruit overseas students.
An issues paper published by the Commonwealth Ombudsman on complaints about an education agent noted that the ‘governance of agents’ actions are monitored through their contractual relationship with education providers.’
The DET reported in their submission that in 2017, there were 624,001 students studying in Australia. During that period ‘education providers reported that education agents were involved in almost three-quarters of all international enrolments.’
International students generally engage the services of an education agent for a variety of reasons including their geographic distance from Australia; ease of communication through a common language; helping understand options for studying and living in Australia and any cultural differences; and help with the admission or visa application process if required.
Information published by the DET in the 2018 International Student Survey found that ‘education agents are seen as trusted sources of information, and useful in helping prospective students reach their study destination.’ Austrade similarly stated that education ‘agents are an important decision-making influencer for intending international students.’
The DET commented that education agents played a key role in Australia’s international education sector and provide ‘prospective international students with high quality advice.’
The DET noted that there was currently no legal requirement for international students to engage the services of an education agent, stating that ‘education providers often engage education agents to recruit students on their behalf.’
Registered education providers are required to ‘have a written agreement with each education agent that formally represents their education services.’
Unless registered as a migration agent with the Office of the Migration Agents Registration Authority (OMARA), it is against the law for education agents to provide immigration assistance.
On 16 August 2017 the Government passed legislation to facilitate the sharing of information on the exercise of functions by education agents between the DET and international education regulators and providers of education services for overseas students: the Education Legislation Amendment (Provider Integrity and Other Measures) Act 2017 (Provider Integrity Act).
The Explanatory Memorandum accompanying the legislation sets out the policy objective relating to the sharing of information on education agents stating that it would assist education providers to make an informed choice:
This supports due diligence by enabling providers to make an informed choice about which agents they work with, and assisting providers to meet their obligation to work with ethical education agents under Standard 4 of the National Code.
An additional provision within the Provider Integrity Act enables the DET and international education regulators to publish information on education agents to promote compliance with the ESOS Act and National Code with the aim of significantly increasing:
…the transparency of education agents’ performance and assist both international students and education providers to identify and use high quality agents.
In its supplementary submission, the DET commented that it was taking a whole of government approach to improve self-regulation by education agents:
The department, Austrade, the Department of Home Affairs and the national regulators is facilitating joint discussions with the provider of the Education Agent Training Course, PIER Online, the new education agent peak body, the International Student Education Agents Association, and Education New Zealand. The group will to work together to develop a data-sharing platform and other levers to encourage and reward best practice. This data-sharing platform will enhance self-regulation of the education agent sector by publishing information on agent training, on integrity and performance expectations and by providing information resources to support agents.
National Code of Practice for Providers of Education and Training to Overseas Students
The National Code, a legislative instrument under the ESOS Act, sets national standards for registered education providers.
The National Code sets out a number of requirements that education providers must comply with in order to ‘maintain their registration to provide education services to international students.’ These requirements include the regulation of education agents that formally represents their education services.
Under the National Code, education providers are responsible for the actions of each education agent they engage with and:
…must ensure that their education agents act ethically, honestly and in the best interest of overseas students and uphold the reputation of Australia’s international education sector.
In particular, Standard 4 of the National Code provides that an education provider must:
have a written agreement with each education agent they engage with;
enter and maintain education agent details in Provider Registration and International Student Management System (PRISMS);
ensure education agents have appropriate knowledge and understanding of the Australian International Education and Training Agent Code of Ethics;
ensure education agents act honestly and in good faith;
take immediate corrective action, or terminate a relationship if an agent (or an employee or subcontractor) is not complying with the National Code; and
not accept overseas students from an education agent if it knows or suspects that the education agent is engaging in unethical recruitment processes.
It is incumbent on the education provider to monitor the activities of their education agents and undertake corrective action in circumstances where:
…the registered provider becomes aware that, or has reason to believe, the education agent or an employee or subcontractor of that education agent has not complied with the education agent’s responsibilities.
In instances where an education agent is found to have breached any of the provisions in the National Code, the education provider must immediately:
…terminate its relationship with the education agent, or require the education agent to terminate its relationship with the employee or subcontractor who engaged in those practices.
Registered education providers must not accept international students from an education agent if they are aware that the agent provides immigration advice; engages in dishonest recruitment practices; or facilitates non bona fide confirmation of enrolments or students.
Enforcement action for breaches of the ESOS Act and National Code are taken against the registered education providers rather than education agents:
Enforcement action can be taken against a provider if the regulator has reasonable grounds to believe the provider is breaching or has breached the National Code 2018. Sanctions include the suspension or cancellation of a provider’s registration.
The Tertiary Education Quality and Standards Agency (TEQSA), the Australian Skills Quality Authority (ASQA) and designated State authorities monitor education providers’ compliance with the National Code.
Agent Code of Ethics
In 2010, Australia, the United Kingdom, New Zealand and Ireland met for talks to discuss the development of an international code of ethics for education agents. On 16 March 2012, the countries agreed on seven principles for education agents, the London Statement:
The London Statement sets out seven principles that agents must adhere to in an effort to ensure they practise responsible business ethics and provide current, accurate and honest information to prospective students so students can make informed choices.
The London Statement’s principles, aimed at promoting best practice, include:
Agents and consultants practice responsible business ethics.
Agents and consultants provide current, accurate and honest information in an ethical manner.
Agents and consultants develop transparent business relationships with students and providers through the use of written agreements.
Agents and consultants protect the interests of minors.
Agents and consultants provide current and up-to-date information that enables international students to make informed choices when selecting which agent or consultant to employ.
Agents and consultants act professionally.
Agents and consultants work with destination countries and providers to raise ethical standards and best practice.
Based on principles in the London Statement, the Australian Government provided funding to the International Education Association of Australia (IEAA) to develop a set of Australian specific standards for Australia’s education agents aimed at raising ethical standards and promoting best practice: the Agent Code of Ethics (ACE).
Announced in October 2016, the ACE provides:
…a guide to the expected professional behaviour of individual agents and agencies working with Australian international students, parents, providers and fellow agents across the sector.
The ACE places an expectation on education agents to adhere to seven ethical principles: integrity, objectivity, professional competence and behaviour, transparency, confidentiality, and professionalism.
The National Code places a requirement on education providers to ensure that their education agents have:
… appropriate knowledge and understanding of the international education system in Australia, including the Australian International Education and Training Agent Code of Ethics.
Complaints about education agents
The DET provided an overview of the complaints process should an international student wish to make a complaint against an education agent. They noted:
Students should raise any concerns about their education agent with their education provider in the first instance. Education providers must respond to complaints about their education agents and are required to have an internal complaints handling and appeals process, as set out in the National Code 2018.
In circumstances where a satisfactory outcome is unable to be reached for the student, the education provider must advise the student about external appeals processes:
If the internal complaints handling and appeals process does not result in a satisfactory outcome for the student, the provider must advise the student that they can access an external complaints handling and appeals process and give the student the appropriate contact details.
The Office of the Commonwealth Ombudsman investigates complaints from international students about private education providers in Australia such as a school, college or university.
External complaints and appeals about public education providers are investigated by the relevant State or Territory ombudsman.
The OMARA is the regulatory authority that investigates complaints regarding education agents who have registration as a migration agent.
At a public hearing the DET advised that it had no role in investigating or handling complaints about education agents, kept no data about complaints, and generally did not receive complaints. The DET commented that any complaints it does receive are passed onto either the education provider or international education regulators:
If the department receives complaints about an education agent, these are passed on to the education providers who those agents represent, where no legal issues arise in the department's doing so, and the complaints are passed on to the international education regulators, ASQA and TEQSA, as well as to state and territory school regulators as necessary, the Department of Home Affairs and Austrade. Regulators may issue breaches of standard 4 of the national code.
The DET advises international students to report any unlawful activity by unscrupulous agents to the police.
The Commonwealth Ombudsman has a number of oversight roles which includes investigating complaints about private registered education providers.
In its submission, the Commonwealth Ombudsman outlined its functions in this regard stating that it:
investigates complaints about the actions and decisions of private registered education providers in connection with intending, current and former international students
provides information about best practice complaint-handling to help private education providers manage internal complaints effectively, and
publishes reports on problems and broader issues in international education that we identify through our investigations.
The Commonwealth Ombudsman noted that since it commenced its oversight role of registered international education providers in April 2011, it had received over 5,000 complaints from international students about a number of issues, the most common being:
…fees and refunds, complaints about an education providers’ intention to report a student to the Department of Home Affairs for unsatisfactory course progress or attendance and education providers refusing to release a student to transfer to another education provider.
The Commonwealth Ombudsman commented that the number of complaints it received each year about education agents was relatively small compared to other issues, with the possible exception of 2017:
Complaints about education agents have constituted around 1–2 per cent of all complaint issues each year, with the exception of 2017 when education agent complaints made up 10 per cent of complaints due to problems with one particular agent.
The Commonwealth Ombudsman identified that since 2011 it had received nine complaints about registered migration agents who were also education agents; four complaints about education agents operating in Australia; and eleven complaints about education agents operating overseas.
International education regulators
As noted above, TEQSA and ASQA monitor international education providers’ compliance with the National Code.
These regulatory authorities conduct compliance audits to assess how education providers manage the activities of their education agents.
Role of the Tertiary Education Quality and Standards Agency
Having assumed responsibility in January 2012, TESQA is the regulatory agency for the higher education sector and has the authority to investigate complaints about a provider’s compliance with the ESOS Act and National Code.
TESQA undertakes an annual risk assessment on all higher education providers. If TESQA determines a provider is at risk of not complying with their requirements, they will instigate an investigation which could involve a visit to the provider; a more detailed and structured investigation; a compliance assessment; and, if required, taking enforcement action.
Depending on the severity of the breach against the ESOS Act or National Code, enforcement action TESQA could take includes:
the provision of advice or guidance to reduce the risk of non-compliance with the relevant standards;
administrative action such as applying conditions on a providers registration or accreditation, reducing the length of registration, cancel the registration of a course or provider; or
civil or criminal action.
TESQA investigates complaints from international students studying in Australia at a higher education provider. In order to investigate a complaint, the international student first needs to provide evidence that they have gone through their provider’s internal and external grievances and complaints processes.
If the complaint is accepted, TESQA may:
use the information to inform future regulatory assessment of a provider
broaden the scope of future regulatory assessment of a provider
commence an assessment of the compliance of a provider against the HES Framework.
Due to confidentiality obligations, TESQA will not advise the person who filed the grievance about any action it takes.
TEQSA, in 2017, established a Student Expert Advisory Group (SEAG) with the aim of collaborating with international students ‘on approaches and strategies to engage students in regulatory and quality assurance activities.’
To date the SEAG has met twice and discussed issues such as international student complaints and assessments of provider registration.
Role of the Australian Skills Quality Authority
ASQA regulates registered international education providers in the vocational education and training (VET) sector including English Language Intensive Courses to Overseas Students (ELICOS) providers.
ASQA’s role includes registering education providers to ‘deliver training to international students on student visas’ and ‘ensuring that organisations comply with the conditions and standards for registration, including by carrying out compliance audits.’
In circumstances where ASQA becomes aware of serious concerns about an education provider it will conduct a compliance audit to examine the provider’s ongoing compliance with the ESOS Act and the National Code. During the conduct of an audit, ASQA examines the education provider’s relationship with their education agents against the requirements set out in the National Code.
If an education provider is found to be non-compliant with the requirements of the National Code, ASQA has ‘the power to suspend or cancel a provider’s registration.’
ASQA reported that since its establishment in July 2011 it had ‘not encountered a high incidence of non-compliance with Standard 4 [on education agents] across the VET or ELICOS industry’:
Of the 8992 audits completed up until 1 March 2018, 1616 (or approximately 18% of the total number of audits) included a CRICOS component and assessed compliance with either the National Code 2007, the National Code 2017 or the National Code 2018. However, of these 1,616 CRICOS audits, ASQA recorded non-compliance with the requirements of Standard 4 in only 24 audits (note: the non-compliance recorded in audits relates to all requirements of Standard 4, rather than specifically relating to any contravention of the Migration Act 1958 pursuant to Standard 4.6.1).
ASQA provided some information the actions it would take in circumstances where they are made aware of an education agent’s behaviour:
If ASQA was made aware of specific concerns about the behaviour of an education agent, ASQA would bring this to the attention of ASQA-regulated providers known to have an association with that education agent. In the first instance, ASQA would remind a provider of its obligations under Standard 4 to ensure its education agents act appropriately. If such concerns related to an education agent providing unlawful immigration services in Australia, ASQA would also bring this to the attention of the Department of Home Affairs through the ERIC Working Group process.
In its submission, ASQA noted that it had no powers to directly investigate or regulate education agents.
ASQA commented that it was collaborating with the DET to ‘improve the quality of data on education agents collected from registered providers’ in an effort to improve transparency and ‘mitigate the risks of unethical education agents operating in this space.’