Chapter 2Views on the bill
2.1International education is important to Australia's economy, culture and society, with international students contributing $51 billion to the national economy every year. Ensuring high quality and integrity in international education will strengthen this sector of the economy, give certainty to education providers, promote the future success of the sector, and enhance Australia's reputation for delivering high quality education to millions of international students.
2.2Recent reviews and parliamentary inquires have canvassed serious issues with the quality and integrity of international education, where some providers and agents have prioritised profit and achieving migration outcomes for non‑genuine students over provision of high quality education.
2.3The bill directly responds to the recommendations of those reviews and inquiries, as well as concerns expressed by organisations and individuals working in the international education sector. It promotes integrity and transparency in relation to the operations of, and commercial relationships between, education providers and agents and improves management of provider applications and registration.
2.4The bill also provides uncapped places for First Nations medical students, to address underrepresentation in the sector, improve health outcomes for First Nations people and communities, and work towards Closing the Gap targets for First Nations health.
2.5Further, the bill supports the Early Education Service Delivery Prices Project by providing the government with a data driven understanding of the reasonable costs of delivering safe and quality Early Childhood Education and Care (ECEC) services.
2.6This chapter discusses views expressed by organisations and individuals on the provisions of the bill.
General support for the bill
2.7Submitters were generally supportive of the intent of the bill, to promote high quality and integrity in the higher education sector, to increase access to medical education to First Nations students and to promote transparency and integrity in the ECEC sector. For example, the National Tertiary Education Union (NTEU) highlighted its agreement with the findings of the Nixon Review and submitted that the proposed amendments in the bill were 'a positive step towards better regulation and oversight of providers involved in international education and the arrangements they have with education migration agents'.
2.8UNSW Sydney welcomed the bill as 'a timely and forward‑looking reform that strengthens the foundations of integrity, equity, and quality in Australian education'. UNSW Sydney particularly commended the strengthened integrity measures for international education, the removal of caps on Indigenous medical student places; and the reinforcement of quality assurance in offshore delivery.
2.9The Group of Eight supported the government's intention to remove unscrupulous providers from the education system, to improve the integrity and transparency of Australia's international education sector.
2.10Queensland University of Technology welcomed government action on 'compromises to the quality and integrity of the wider Australian international education system' and agreed that 'the orderly and responsible conduct of international higher education must be protected'.
2.11The government's intent to enhance the integrity of the international education sector and eliminate unethical practices by rogue agents was strongly supported by Successful Graduate, which emphasised that 'a high-quality, sustainable sector benefits students, providers, and Australia'.
2.12Innovative Research Universities (IRU) welcomed 'continued government focus on quality and integrity in international education' and acknowledged 'the work that has been done by government to update and refine integrity measures to ensure that they are proportionate and risk-based'.
2.13Similarly, Universities Australia supported the overall intent of the bill, including proposed amendments to strengthen the quality and integrity of the international education sector and improve equity and access in higher education for First Nations peoples.
Amendments to the Education Services for Overseas Students Act 2000
Education agents and commissions
Definition of 'education agent'
2.14The Department of Education observed that the Nixon Review had 'brought urgent attention to unscrupulous activity in relation to student recruitment and established the imperative for legislated change'. The new definition of 'education agent' is based on their activity, rather than any formal relationship between an agent and a provider. According to the department:
This reflects a sharpened focus on problematic agent activity and behaviour, whether it occurs in the context of a formal arrangement with a provider or not. This definition will capture a range of activities and agents that the sector has brought to the attention of government including where providers use students to recruit other students. This definition will minimise the risk of loopholes that could be exploited by unscrupulous providers and agents.
2.15IRU observed that the proposed definition of 'education agent' was the same as was contained in the Education Services for Overseas Students Bill 2024, and did not incorporate feedback received from submitters to the inquiry into that bill.
2.16According to the Independent Tertiary Education Council Australia (ITECA), the expansion of the definition of 'education agent' to the point that it might include parents, employers, industry associations, and government bodies, could lead to 'confusion and new challenges'.
2.17Universities Australia suggested that the new definition could be taken to include individuals and organisations that support international student recruitment but are not involved in recruiting or representing students. These could include online admissions and payment platforms, and offshore staff employed through local third-party arrangements, presenting significant challenges for institutions and their operations.
2.18International Student Education Agents Association (ISEAA) and the Education Consultants Association of Australia's (ECAA) submission said that while they supported the introduction of clear and enforceable definition of education agent, the breath of its scope might 'inadvertently encompass social media platforms, marketing affiliates, or informal student networks that are not directly contracted by providers'. ISEAA and ECAA suggested that a relationship between and agent and provider should be defined under a signed contract, and that no commissions be paid in any manner outside an accountable and contracted relationship.
2.19Navitas supported the intent to include a more precise definition of 'education agent' in the ESOS Act. However, they also indicated that the new definition could capture a wider range of entities and partnerships than intended. Navitas observed that providers in partnership with universities do not act as education agents for those universities, but work as partners with universities to deliver education (though partners may give universities access to their own agent network). Navitas suggested that an 'unduly broad' definition ' would have a negative impact on the effectiveness and efficiency of regulation, as well as imposing extra administrative burden on providers to no useful end'.
2.20The University of Melbourne suggested that the new definition could include an overseas institution, such as an exchange partner of a network of secondary schools, that promotes study at an Australian institution under a partnership agreement, with no financial connection between the two. As a consequence, reporting requirements could be made more complicated. The University of Melbourne recommended that:
[T]he definition should be amended to state that 'an education agent is not an education institution with whom an Australian provider has an agreement for the provision of education (i.e. teaching activities) unless the institution receives monetary or non-monetary remuneration from the Australian provider.'
2.21The Australian Catholic University (ACU) submitted that a range of entities could be captured under the new definition, including:
vendors of software solutions to support application management and processing, student enquiry management or digital resources such as online brochures or information; and
offshore contracted representatives who do not receive commissions and are not considered employees of ACU.
2.22The Regional Universities Network (RUN) commented that the new definition would create 'complex and unworkable implications for good faith university providers and their prospective students'. RUN suggested that a 'more nuanced' definition of 'education agent' would be confined to 'an entity that is engaged by a provider to recruit overseas students and in doing so supports the overseas student to submit their application for admission to that provider', with specific exclusions for government agencies and employees of the provider, including those engaged overseas through a third party.
2.23ACU also observed that education providers would be required to report information on agent commission fees they have paid to an education agent. This would require significant intensive, manual work for many providers, who might have to draw commission and student enrolment data from multiple systems across their organisation, presenting a significant administrative burden.
2.24Independent Higher Education Australia (IHEA) noted that, while full-time and part-time employees of a provider are excluded from the definition, casual and contract employees would not be, presenting 'what may be seen as an arbitrary and potentially confusing distinction'.
2.25Similarly, Bond University submitted that including individuals engaged under fixed-term contracts in the scope of 'education agent', while excluding permanent employees, presented a challenge for institutions that employ staff offshore to support recruitment and engagement. Due to local employment regulations, such staff are often employed on fixed-term contracts but are subject to the same oversight and obligations as other employees.
2.26Successful Graduate supported the goal of closing loopholes, but suggested that the broad definition of 'education agent' might inadvertently capture ' legitimate B2B technology vendors who are fundamentally different from education agents'. Successful Graduate gave the example of a software-as-a-service company to which education providers pay a licence fee to use the software company's platform and course content, which is then offered by the education provider to its students. If such companies were to be classified as 'education agents', Successful Graduate indicated that this would impose an 'untenable regulatory burden', and stifle innovation in the education sector.
2.27The Explanatory Memorandum clarifies that the new definition of 'education agent' is not intended to capture sector peak bodies or government entities, noting that 'while these organisations may, for example, provide information, advice or assistance to overseas students, they do not do so "in relation to a provider", that is, on behalf of a specific provider'.
2.28The Department of Education submitted that it had listened to concerns expressed by the sector that the new definition of 'education agent' was too broad. The department observed that:
Due to the seriousness of integrity issues raised in the Nixon Review and other reviews and inquiries, and the importance of discouraging business models which facilitate poaching and poor advice to students, this definition provides the best approach to disrupt these unscrupulous behaviours.
2.29In addition, the department indicated that policy guidance would be provided to the sector to clarify for providers and agents as to what does and does not constitute an 'education agent' under the new definition.
'Fit and proper' requirements
2.30As outlined in Chapter 1, the bill expands the fit and proper considerations and require ESOS agencies to take into consideration any ownership or control between providers and education agents, and the extent of that ownership.
2.31Several organisations expressed their support for strengthening the 'fit and proper' requirements under the ESOS Act.
2.32Navitas supported including cross-ownership between education providers and education agents as a factor in the 'fit and proper' test, while reiterating its reservations regarding the breadth of the new definition of 'education agent'.
2.33English Australia observed that many education providers have ownership stakes in recruitment organisations, and that the Nixon Review had indicated that problematic and illegal conduct co-occurred with cross-ownership, not that co-ownership was causative of such conduct. English Australia recommended that the government either amend the bill to clarify precisely what conduct and fault elements, including any specific measures or thresholds, would lead an ESOS Agency to find that a provider is not 'fit and proper', or enact provisions that detail these elements in an alternate legislative instrument.
2.34ITECA observed that the current criteria for the 'fit and proper' test were already quite broad, encompassing multiple pieces of legislation and government programs:
Current regulatory requirements for providers registered on Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) already include comprehensive fit-and-proper person assessments, with additional requirements for those offering education or training through Commonwealth or state-funded programs, under which there are rigorous fit and proper requirements. In addition, there are existing requirements for independent providers to meet under the CorporationsAct2001 and other Commonwealth and state regulators.
2.35Independent Schools Australia expressed general support for reforms to the 'fit and proper' requirements, while suggesting that:
requirements to report changes to ownership should not be applied retrospectively where there is also a limited timeframe for compliance; and
regulators should be adequately prepared and funded to perform their functions in assessing 'fit and proper' requirements prior to legislation commencement dates.
2.36ISEAA and ECAA submitted that the vertical integration of some provider‑agent business models was damaging, and supported regulation to end collusion impacting the student visa system. ISEAA and ECAA supported including consideration of provider-agent relationships in 'fit and proper' assessments to improve integrity safeguards,
2.37The Department of Education clarified that cross-ownership does not in itself provide grounds for an ESOS agency to refuse to register a provider, but that an ESOS agency will consider the existence of any cross-ownership arrangements when making their overall determination of whether a provider is fit and proper to be registered.
Definition of 'education agent commission'
2.38The Department of Education also explained that it had considered feedback from the sector when drafting the definition of 'education agent commission', and their concerns that unscrupulous providers will seek to hide commission payments as other types of payments or incentives. The department indicated that:
The provision has been drafted to cover all forms of agent remuneration, including non-monetary incentives, to prevent some providers and agents changing their practices to avoid new reporting obligations and theintended ban on payment of commissions for onshore transfers. Greater transparency around education agent commissions will support stronger integrity in the sector.
2.39The International Students Representative Council of Australia (ISRC) submitted that the substantial commissions that institutions pay to agents would be better used to 'improve teaching quality, student support and research capacity, rather than being channelled off-campus through large-scale commission payments'. ISRC also observed that the widespread use of per-head and percentage based commissions created 'strong incentives for volume-driven recruitment', presenting systemic risks for students, including 'misleading advice, information asymmetry and poor course fit'.
2.40English Australia supported the intention of introducing a definition of 'education agent commission', but suggested that the definition in the bill could 'make enforcement and compliance highly problematic'. English Australia suggest that the breadth of the new definition of 'education agent' would have a consequential impact on the definition of 'education agent commission'.
Further, the nature of pricing practices at many institutions with respect to tuition services for overseas students, such as varying tuition fees between different regions and countries, will make monitoring compliance with the provisions stemming from this definition highly problematic.
2.41The University of Melbourne strongly supported clearer definitions and reporting requirements for agent commissions, but submitted that 'consideration should be given to genuine student-initiated transfers to avoid unintended consequences'. The University indicated that providers would require clear guidance and a consistent definition of 'onshore commission' to understand which activities fell within its scope.
2.42ISEAA and ECAA noted that the bill avoids a complete ban on commissions and prioritises transparency and data-sharing while protecting student services. ISEAA and ECAA observed that commissions fund services including ongoing advice, cultural support, dispute mediation, and course‑progression counselling. They suggested that banning transfer commissions in the case of legitimate and genuine course transfers could ' cause widespread closure of small and medium agencies employing thousands of Australians'.
2.43Independent Higher Education Australia (IHEA) submitted that while commissions on course transfers may financially incentivise unscrupulous behaviour of agents, a blanket ban might have unintended consequences, including disruption of current, legitimate arrangements. IHEA indicated that:
… prohibiting all agent commissions for onshore transfers does not recognise the appropriate and valuable role that agents generally play in supporting students to appropriately transition to new courses. It does not acknowledge that for quality agents, their relationship with students often continues throughout the life of their study in Australia through delivering a significant range of services other than simply assisting in selecting a course and provider.
2.44ITECA suggested that the expanded definition of 'education agent commission' could create 'significant ambiguity and uncertainty, potentially labelling scholarship payments and membership fees paid to industry association and peak body as commissions'.
2.45The Migration and Education Consultants Alliance Australia proposed that a 'uniform, capped and regulated' structure for education agent commissions would be a balanced solution.
2.46In response, the Department of Education submitted that it had considered feedback from sector representatives when drafting the definition of 'education agent commission' and their concerns that unscrupulous providers will seek to hide commission payments as other types of payments or incentives. The department indicated the definition had therefore:
… been drafted to cover all forms of agent remuneration, including non-monetary incentives, to prevent some providers and agents changing their practices to avoid new reporting obligations and the intended ban on payment of commissions for onshore transfers. Greater transparency around education agent commissions will support stronger integrity in the sector.
Giving information to registered providers
2.47As discussed in Chapter 1, the bill expands the ability of the Secretary, or an ESOS agency, to give information about education agents to registered providers, to help providers make better decisions about which agents to engage.
2.48The Department of Education submitted that providing information about factors including education agents' rates of course transfers, rates of visa refusals, and costs of commissions would 'help to correct the current imbalance between providers and agents, the secretive nature of payment of commissions and encourage fairer business practices'.
2.49IHEA supported increased transparency regarding education agent performance data, suggesting that enabling data to be shared would give education providers better visibility and understanding of agents' actions, performance and inappropriate behaviours, improving providers' ability to assess new potential agent partners. However, IHEA raised concerns that sharing information about agent commissions might 'negatively impact individual providers as well as Australia's competitiveness in the global market'. Nevertheless, IHEA suggested that performance data sharing could be expanded to encompass visa success rates for individual agents across the whole sector, reasons for termination of agent agreements, and details on agents that are on the migration list regarding breaches or negative performance.
2.50English Australia was similarly supportive of sharing agent performance data, but concerned about 'any sharing of an individual provider's commercial‑in‑confidence data on business operations and supplier contracts with the sector at large'. English Australia suggested that this 'would amount to a form of anticompetitive market practice and is likely to have a range of negative consequences for the sustainability of the sector', along with 'complex legal repercussions' in international contact law, as provider-agent agreements and agent-student agreements are often made across international jurisdictions.
2.51Monash University also indicated concerns with sharing data on agent commissions among providers, suggesting that it might have the perverse effect of driving up agent commissions. Monash University recommended that this aspect of the legislation be reviewed two years after commencement to determine the impact on education agent commissions, student transfers and visa refusals.
2.52The University of Melbourne supported measures to improve data-sharing between providers and the Department of Home Affairs or TEQSA in relation to problem agents. The University suggested that:
This could include the development of an agent performance dashboard or reporting framework accessible to providers, displaying agent outcomes such as progression and completion rates, as well as integrity performance indicators (visa refusal rates, complaints, etc.). Given the need to review and amend existing agent agreements and partnership arrangements, the University recommends a clear transition period before new requirements take effect.
2.53The Department of Education highlighted that the Secretary and the ESOS agencies would not be allowed to publish information about education agents to the general public, only to make it available to registered providers in a controlled, access restricted platform. The department explained that:
Any personal or sensitive information collected will be used only for the legitimate purpose of helping providers to choose reputable education agents. The Department of Education, TEQSA and ASQA will adhere to the requirements set out in the Privacy Act and the Australian Privacy Principles when collecting, handling, using or disclosing any personal or sensitive information.
Management of provider applications
2.54As explained in Chapter 1, the bill enables the Minister to suspend the making or processing of initial applications for the registration of providers and applications for the registration of new courses by registered providers for a specified period of not more than 12 months.
2.55Navitas supported the policy intent of this measure, to the extent that it would 'allow strong regulatory action against non-genuine providers and to police market entry'. Considering this intent, Navitas suggested that it was therefore not reasonable to include ministerial powers to suspend applications by existing providers to add courses to their registration.
2.56English Australia noted the government's objective to better control the number of providers in the sector and ensure the ESOS Agencies have the capacity to focus on compliance activities without being overwhelmed by applications for new provider registrations or for amendments to existing providers' registrations. However, English Australia submitted that the Minister's authority to suspend applications was 'an arbitrary power', and that the bill provided no indication of what considerations and metrics will be applied in determining that suspension of processing applications is warranted, what procedures should be followed, what right to appeal such decisions will be available, or requirement for a notice period prior to such a suspension.
2.57ELT Support submitted that 'considerable time and expense' was involved in preparing an application to become a new ESOS provider. Writing a curriculum can take may months, and must be complete before submission. Applicants must also have leases on premises in place when the application is submitted. ELT Support indicated that ASQA was currently taking 'well over twelve months' to process applications, during which time leased premises remain empty, with potential costs of hundreds of thousands of dollars. ELT support indicated that the prospect of the Minister suspending applications for 12months would significantly increase commercial risk, even if such a suspension were never enacted.
2.58RTO Works noted similar concerns regarding ASQA's processing times, indicating waits of up to two years for processing initial applications and months for additions to scope. RTO Works suggested that the measure appeared to be redundant, as most applicants to become RTOs no longer wish to apply to be a CRICOS provider.
2.59IHEA expressed concerns regarding the 'breadth and subjectivity' of the ministerial suspension powers, indicating that 'no objective criteria, evidence thresholds, or mandatory consultation requirements are specified to guide a Minister's decision, creating the risk of arbitrary suspension of legitimate applications'. IHEA also suggested that the powers could undermine the roles of TEQSA and ASQA, which already have responsibility for ensuring the integrity and quality of the providers that they register.
2.60Queensland University of Technology (QUT) submitted that assurances in the Explanatory Memorandum—that the Minister would only exercise the suspension powers where there are concerns relating to the integrity or sustainability of the international education sector and urgent, decisive action is required—were 'rather hopeful'. QUT indicated that the Minister would not be legally constrained to act only for those reasons. QUT suggested that exemption of suspension instruments from disallowance was 'excessive and unwarranted', and would mean that Parliament would be incapable of preventing any abuse of these powers.
2.61The University of Melbourne took a similar view, noting that allowing the Minister to suspension applications by way of legislative instrument that were not subject to disallowance 'could set a concerning precedent'.
2.62Independent Schools Australia (ISA) observed that powers to suspend or manage registration applications were more relevant to other sectors and that school sector providers should therefore be exempt. ISA explained that new provider and course applications from school sector providers are managed by state and territory Designated State Authorities (DSAs)—not ASQA or TEQSA —which already have powers to manage applications. ISA supported delays in processing new provider registration applications only where there were specific concerns about a potential provider, and proposed that all providers should have the right to review of regulatory decisions regarding suspension and management of registration applications.
2.63The need for these ministerial powers was explained by the Department of Education, which clarified that the Minister would only exercise the suspension powers in limited circumstances, where there are concerns regarding the integrity or sustainability of the international education sector. This is intended to protect overseas students by ensuring that:
… where there are significant concerns associated with all, or a specified class of, registration applications, the Minister can direct the ESOS agencies to pause the processing of these applications, while allowing processing of other applications to continue as appropriate, or the Minister can determine that applications may not be made, in order to undertake further investigation.
2.64Regarding the issue that suspension instruments are exempt from disallowance, the Department of Education explained that:
Subjecting the legislative instruments to the disallowance process may result in further uncertainty in this period of change for the international education sector, in respect of affording providers with commercial and business certainty once an instrument has been made. The matters covered by an instrument are intended to be under Executive control, given the primary purpose of the instrument will go to the functioning and operations of ESOS agencies and their role in regulating providers where integrity risks are present.
Registration requirements
2.65As outlined in Chapter 1, the bill would require education providers seeking registration to first demonstrate their ability to provide one or more courses effectively to Australian domestic students for at least two consecutive years. Exemptions are provided for providers delivering only ELICOS or Foundation courses, as these are generally not provided to domestic students.
2.66IHEA submitted that, once a new provider is registered with TEQSA, they can apply to the Department of Education for approval to offer Higher Education Loan Program (HELP) loans, such as FEE‑HELP. In considering applications, the department gives weight to factors including whether the provider has sufficient experience in providing higher education, and whether the provider has been registered for more than three years. IHEA suggested the effect of this could combine with the requirement to enrol only Australian domestic students for two years to mean that an independent education provider would need to operate without enrolling students with access to FEE‑HELP or international students. Therefore, the provider could only enrol domestic students paying full fees up front, while competing against providers who can offer loans. This could make a new provider's operations unsustainable and discourage new independent higher education providers entering the market. IHEA submitted that this situation was 'discriminatory, anti-competitive and disadvantages independent higher education providers'.
2.67The International Education Association of Australia (IEAA) took a similar view, expressing concern that the two year requirement to teach domestic students prior to being able to achieve CRICOS registration (to teach international students) could disadvantage innovative and specialist providers attempting to gain market entry. IEAA also indicated that government policy in relation to free tuition public TAFE courses for domestic students ' significantly reduces the ability of any new non-government provider being able to first attract domestic students'.
2.68The Department of Education submitted that the requirement for new providers to teach only domestic students for two years is:
… aimed at ensuring high quality education delivery by education providers, deterring non-genuine providers from entering the international education sector purely for facilitating migration outcomes or trafficking people into bonded labour rather than providing a quality education outcome. It further addresses a recommendation in the Interim Report of the Joint Standing Committee to require operation and delivery to domestic students prior to registering as an education provider under the ESOS Act.
Automatic cancellation of registration
2.69As set out in Chapter 1, the bill introduces a new provision specifying that a provider's registration is automatically cancelled if they have not provided any course at any location to any overseas students in a period of 12 consecutive months. According to the explanatory memorandum, this amendment is intended to address integrity issues posed by dormant providers who may be using their registration for non‑genuine or fraudulent purposes, and providers that are not demonstrating a genuine commitment to delivering courses to overseas students.
2.70While many submitters welcomed the intent of the provision, and the clarity that has been made to the drafting since the original ESOS bill, some submitters were concerned about the automatic aspect of the powers, and whether this would provide procedural fairness and achieve the desired outcome.
2.71IHEA welcomed the revised wording of this clause from the original ESOS bill, which could have been interpreted as 'requiring continuous enrolment across all campuses and courses'.
2.72English Australia were similarly supportive of the change to what they termed, 'an issue with the original drafting'. However, they were less clear on the so‑called 'integrity issues' that the explanatory memorandum refers to, and therefore they were unclear on the unclear on the benefits to the sector:
English Australia commends the government on responding to the feedback English Australia and ITECA provided regarding the 2024 version by amending this provision thereby removing the issue with the original drafting…
Notwithstanding the statement in the bill that this will address integrity issues with dormant providers, no indication of what these integrity issues are has been provided to the sector. Thus, the benefit of these provisions is unclear.
2.73Conversely, Navitas appeared clear on the integrity issues that the bill could address but expressed concern about the automatic element of the power. Navitas supported the intent of the measure, submitting that automatic cancellation of the registration of inactive providers was 'a powerful move against underhand business practices in the international education industry', which would 'significantly improve integrity in international education'. Navitas argued, however, that automatic cancellation of registrations would not accommodate legitimate pauses in business operations, and suggested that there should be some notification of a 'pending cancellation'. In addition, Navitas recommended that some form of hibernation provision be introduced that could be accessed in those circumstances where a genuine case can be made for the pause in operations.
2.74ITECA's concerns were centred around the ability of 'non-genuine providers' to circumvent the powers by enrolling a single student for a short time in any campus or location. This could be mitigated by registered only being cancelled following a risk-based examination.
2.75The National Aboriginal and Torres Strait Islander Education Corporation (NATSIEC) were concerned that the powers could have a disproportionate impact of smaller providers:
Automatic suspension/cancellation of providers could disproportionately affect First Nations students enrolled in smaller or alternative institutions that are more likely to be captured by integrity actions.
2.76The Explanatory Memorandum explains that education providers may seek an extension of a measurement period from their ESOS agency, more than once, but not for a total period of not more than 12 months. The Department of Education also submitted that any decision to not extend a measurement period is an exercise of administrative power by an ESOS agency and is subject to merits and judicial review.
Investigation of offences
2.77As explained in Chapter 1, the bill requires ESOS agencies to consider whether a provider or related person is under investigation for a specified offence, when determining whether a provider is fit and proper to be registered under the ESOS Act.
2.78English Australia supported the intent to prevent education providers who lack integrity or who engage in illegal activities gaining or maintaining CRICOS registration. However, English Australia opposed automatic suspension of the registration of existing providers merely because they are under investigation and urged government to amend the provisions to maintain natural justice in administrative decision making.
2.79The Department of Education explained that investigations for serious offences can commence months or years after the event. Allowing ESOS agencies to consider these investigations as a relevant fact for the 'fit and proper' test would enable suspension of registration to ensure that vulnerable students are not further exploited or otherwise harmed.
Automatic cancellation of specified courses
2.80Chapter 1 outlines the measures in the bill that would enable the Minister to make legislative instruments to automatically suspend or cancel courses, where there are systemic issues in delivery, where the courses are of limited value to Australia's needs, or if it is in the public interest.
2.81IHEA observed that this provision would give the Minister power 'to cancel courses en masse, across multiple providers simultaneously'. IHEA warned that this power created uncertainty for the sector and presented a significant risk that compliant providers might be punished based on the behaviour of a minority of providers within the same class. IHEA suggested instead that TEQSA and ASQA should remain the primary authorities for regulating course quality.
2.82Navitas agreed that the Minister's powers to cancel courses were broad, and would therefore require clear guidelines and safeguards to avoid arbitrary or ill-considered use. Navitas suggested that it was important for the Minister to consider the impact of any course cancellation on the viability of businesses and on their employees.
2.83ITECA criticised the provision in terms of a 'brazen desire to centralise regulatory powers under the Minister' that 'actively undermines the existing roles of the ESOS agencies in ensuring compliance with regulatory standards across CRICOS-registered providers.
2.84The NTEU supported ministerial powers to suspend and cancel courses at providers that had been identified as failing to deliver an appropriate quality of education or where there was a public interest in cancelling their registration. The NTEU characterised this measure as:
… an important step in addressing the integrity problems within the private higher education and vocational education sector, where a series of education providers have exploited international students for illicit purposes and/or failed to provide quality education.
2.85The Department of Education submitted that the course cancellation powers would:
… enable the Minister to act on advice of the Department and other areas of government that can provide evidence of issues in the sector that engage the public interest. Concerns related to skills needs are better determined by cross-agency collaboration rather than regulator action.
Internal review
2.86Several submitters supported allowing ESOS agencies to stay the operation of decisions while internal reviews of those decisions were in progress.
2.87IHEA supported the interim stay provision, which allows an ESOS agency to temporarily suspend the effect of the original decision while an internal review is underway, and indicated that this would provide procedural fairness to the provider while the review decision was pending. However IHEA noted that extending the maximum period for an ESOS agency to make a decision from 90to 120 days would risk compounding the 'extensive delays that independent higher education providers face with respect to engagement with and decisions made by TEQSA'. IHEA recommended that TEQSA implement regular progress reporting and performance targets for review decisions to promote accountability and timeliness.
Amendments to the Tertiary Education Quality and Standards Agency Act 2011
2.88Amendments to the TEQSA Act are proposed to enhance the integrity and reputation of Australian higher education delivered offshore by requiring providers to receive authorisation before delivering Australian courses offshore and to provide TEQSA with information about the delivery of those courses.
2.89TEQSA observed that offshore delivery of courses had grown significantly since it came into being, in both number of providers and number and diversity of courses. TEQSA highlighted a range of risks to the reputation of offshore providers and Australian education, including poor course delivery, cybersecurity, privacy, management of third party providers and partners, and location-specific risks to student health and welfare. TEQSA indicated that the bill would ensure TEQSA is aware of Offshore Providers' activities and enable TEQSA to monitor sector level trends and risks.
2.90Some submitters suggest that particular types of educational institutions be exempt from the new authorisation and reporting requirements. For example, the RUN argued that Australian universities had proven their integrity and ability to reliably deliver high-quality education offshore. RUN recommended that all Table A university providers who currently meet the Higher Education Standards Framework (the Threshold Standards) be exempt from the need to seek authorisation for offshore course delivery.
2.91TAFE Directors Australia (TDA) took a similar view, submitting that more than half of its members delivered higher education, and were therefore subject the administrative burden of regulation by both TEQSA and ASQA. TDA recommended that TAFE Higher Education Providers be categorised as low‑risk and high trust, and therefore subjected to a reduced regulatory burden to eliminate duplication. Nevertheless, TDA welcomed the increased focus of government and regulators on integrity in the international education sector and appreciated the differentiated approach applied to TAFE as the trusted public provider
2.92The NTEU supported the proposed amendment to the TEQSA Act to support greater regulatory oversight of the delivery of higher education courses offshore by Australian education providers. The NTEU considered the changes to be 'both necessary an appropriate in scope', while suggesting that 'any undertakings made by TEQSA in relation to international education be publicly reported on for both clarity and transparency within the sector'.
2.93Similarly, Navitas supported requiring TEQSA authorisation of offshore education providers, in that it reflected and formalised current practice proposing that it would send a clear signal that education delivered offshore was subject the same standards and oversight as education delivered within Australia.
Amendments to the Higher Education Support Act 2003
2.94As mentioned in Chapter 1, the bill amends the HESA to uncap enrolments in medical courses for First Nations students, to address underrepresentation of First Nations people in medicine and improve health outcomes for First Nations patients.
2.95The National Aboriginal and Torres Strait Islander Education Corporation (NATSIEC) welcomed this as a positive measure, which recognised the value of enhancing First Nations excellence and leadership in health and medicine. NATSIEC also suggested ways in which the government might go further to address inequality, observing that while uncapping supported places would increase enrolment opportunities, appropriate, culturally safe educational supports should be implemented to assist First Nations students throughout their studies and complete their degrees.
2.96The NTEU took a similar view on the need for culturally safe supports, and suggested that the government consider uncapping all degree courses to increase opportunities for First Nations students.
2.97Universities Australia recommended that demand-driven places in medicine for First Nations students should be matched with investment in culturally safe supports and clinical placement capacity.
2.98RUN welcomed and supported the removal of caps on Commonwealth Supported Places for First Nations medical students, noting that regional universities stood to benefit the most from the equity objectives of current higher education policy direction. RUN observed that regional universities host the highest concentrations of enrolments of underrepresented student cohorts in the sector, and that 'one in every four First Nations students nationally are attending a RUN university'.
2.99IRU also supported uncapping Commonwealth-supported medical places for all First Nations students, to further enhance access and equity in the higher education system. Further, IRU welcomed ongoing government action to implement the recommendations from the Universities Accord Final Report to support First Nations self-determination, and to increase the benefits of higher education for Indigenous students and communities.
2.100The Lowitja Institute welcomed the measure, and recommended that the government:
… prioritise funding and resources to support Aboriginal and Torres Strait Islander medical students and doctors in training, and to implement strategies that promote diversity, inclusion and cultural safety in the medical workforce, to ensure that all Australians have access to high quality and culturally appropriate healthcare.
Amendments to the A New Tax System (Family Assistance) (Administration) Act1999
Cost and financial information
2.101Proposed amendments relating to collection of cost and financial information to support the Service Delivery Price (SDP) Project received provisional support from Goodstart Early Learning (Goodstart). Goodstart highlighted its strong support for the SDP Project and emphasised its importance in underpinning universal early childhood education and care (ECEC):
Goodstart has been a strong supporter of this project and the need for Government to better understand the cost drivers of high-quality provision. … The SDP Project is intended to gather evidence to enable the government to better understand ECEC quality service delivery costs to underpin future policy and funding reforms for the ECEC sector—this will be essential ensuring a sustainable universal ECEC system that improves children's educational and development outcomes while also continuing to support parents' workforce participation.
2.102Similarly, G8 Education acknowledged the Australian Government's 'commitment to high quality ECEC' and noted its active participation in the SDP Project. In doing so, it stated that 'robust transparency requirements' are essential for effective governance 'and for protecting the interests of families and the broader community'. Further, it urged the Australian Government to continue its through and timely consultation with the sector in the delivery of its ECEC reforms.
2.103While supportive of the amendment, Goodstart reflected on the need to balance the collection of sufficiently granular data with the potential compliance burden on providers, particularly given many providers are using data platforms that 'are not fit-for-purpose to engage in large scale data collection'. Further, it noted that while the proposed amendments require the Secretary to 'reasonably believe … the information is required' and that the provider is 'capable of giving the information', it does not require the Secretary to consider 'whether it is reasonable and not unduly burdensome on the provider to provide the data'.
2.104The potential administrative burden of the expanded data collection powers was also raised by the Australian Childcare Alliance (ACA) and NATSIEC, which noted the resource constraints on Aboriginal community controlled ECEC services. To this end, NATSIEC recommended not imposing 'disproportionate compliance pressures on community-controlled services' and that consideration be given to providing 'funding for compliance capacity if required'.
2.105Further, submitters such as Early Learning and Care Council of Australia (ELACCA) and the ACA urged the Australian Government to continue its current collaborative approach that maximises voluntary data collection opportunities before invoking its compulsory powers.
2.106In response, the department clarified its intention to seek information voluntarily 'to the greatest extent possible', with any decision to compel data 'based on the need to ensure robust, representative data for the project'. The department also stated that support will be available to help providers to 'provide the necessary information, including in response to a notice issued under the Secretary's new power'.
2.107ELACCA and the ACA also sought clarification about the potential for ongoing use of the new compulsion powers beyond the conclusion of the SDP Project.
2.108To this end, the department stated that information collected under the new power 'will only be used or disclosed for the purposes of the SDP Project'. The department also made clear that the power to compel information will have no application after the end of the SDP Project:
The power to compel cost and financial information is limited by other parts of the Family Assistance Administration Act dealing with protected information and will only be used to obtain information for the purposes of the SDP Project. Once the SDP project ends, the power to compel this information will have no further practical application.
2.109While not directly related to the proposed amendment in the bill, For Parents urged the SDP Project to explicitly consider 'costs associated with alternative childcare options' such as In Home Care, Family Day Care, and private arrangements. It also advocated for the SDP Project to 'assess economic, behavioural, and regulatory drivers across all care types, including in-home and small-scale settings'.
Protected information
2.110According to Goodstart, a number of the proposed amendments 'are sensible measures that will support transparent, public reporting about [the Child Care Subsidy] and the ECEC sector'. Goodstart provided the following examples from section 162, which 'carefully balances the need for transparency in the aggregate with the need for protecting personal information':
subsection 162 (2AA), which allows the Secretary to disclose information for the purposes of research, monitoring, evaluation and reporting, or for statistical analysis, or to support policy development (the provisions contain appropriate safeguards to protect personal information); and
subsection 162 (2A), which facilitates the release of information in an aggregated way (subclause 2B clarifies the threshold for this provision).
2.111However, Goodstart raised concerns about proposed subsection 162B(1A), which would allow the publication of information—including protected information—if the Secretary is satisfied that the information would:
promote transparency and accountability of the provider's administration of Child Care Subsidy and the Additional Child Care Subsidy;
promote quality and safety of the provider's child care services; or
encourage the provider's compliance with family assistance law.
2.112Goodstart suggested that 'the guardrails around the provision are not as strong as other provisions related to protected information'. Accordingly, it encouraged the Australian Government to engage with the sector on implementation of this provision and to consider providing stronger guardrails in ministerial rules.
2.113A similar view was expressed by ELACCA, which also encouraged the department to 'work with the sector to inform how this provision would be implemented, including development of subordinate legislation if required'.
2.114Further, NATSIEC recommended embedding 'Indigenous Data Sovereignty principles into all ECEC data, transparency, and publication powers' and ensuring that 'First Nations governance and advice from [Aboriginal Community Controlled Organisations] and First Nations ECEC experts is integrated into the development of data collection and accountability mechanisms'.
Technical amendments
2.115Goodstart noted that the amendments in Part 3 of the bill 'are technical in nature' and stated that 'these amendments should at least clarify the future rules around reconciliation'.
2.116While ELACCA welcomed the intention to end the misalignment of dates between administrative systems as 'welcome, and clearly necessary', it noted 'some concerns' about the 'decision to retrospectively declare that all relevant decisions for [Child Care Subsidy] reconciliations had been validly made'. It argued this may have the effect of extinguishing underpayments to families between 2018–2025.
2.117In response, the department confirmed that, in addition to waiving any debts resulting from the misalignment, the retrospective application of the amendments would also mean no families were underpaid. Evidence provided by the department also appeared to suggest that the majority of people affected would have been overpaid:
Most people impacted by the misalignment would have received an overpayment (a maximum of two weeks' CCS entitlement), and for those individuals who may have been underpaid (again a maximum of two weeks' CCS entitlement), they would have also initially received an overpayment.
2.118Nevertheless, the department indicated that individuals would be entitled to seek compensation where 'they can show that the retrospective amendments resulted in an acquisition of their property other than on just terms'.
2.119The department also noted that further information would be published on its website if the bill passes. This includes details of how people can contact the department if they believe 'they have been negatively impacted by these amendments'. The department stated it would work with anyone who makes contact to 'determine the appropriate course of action'.
Committee view
2.120The committee thanks the organisations and individuals who provided written submissions. The committee has considered the views expressed in submissions and welcomes their general support for reforms to improve the quality and integrity of the international education sector.
2.121There were aspects of the bill that attracted reservations from some submitters. These were mostly around the potential for the provisions to be too broad in who they applied to, whether the right balance was struck with regards to the Minister's powers to act in some circumstances, and whether procedural fairness was appropriately ensured in some parts of the bill.
Definition of 'education agent'
2.122As discussed above, several submitters were concerned that the new definition of 'education agent' was too broad and could capture a 'wider range of entities and partnerships than intended'.
2.123The committee notes the seriousness of integrity issues in the Nixon Review and other reviews, and the importance of addressing this behaviour robustly, while ensuring that the sector has clarity on the scope of the new definitions through policy guidance.
Management of provider applications
2.124The Minister's powers to make legislative instruments to suspend the making or processing of initial applications for the registration of providers, as well as applications for the registration of new courses by registered providers for a specified period of up to 12 months, was also queried.
2.125Some submitters were concerned about the lack of clarity about the criteria that would guide the Minister in their decision-making. 'The committee understands that the suspension powers would only be exercised in limited circumstances, where there are concerns regarding the integrity or sustainability of the international education sector. The committee also accepts that the intent is to protect overseas students.
Automatic cancellation of registration
2.126The committee also acknowledges concerns expressed by some submitters regarding the extent of ministerial powers to suspend applications to register providers and courses, and to automatically suspend or cancel courses.
2.127While the committee appreciates the concerns, it is of the view that the provision is appropriate given the integrity risks of unethical providers using their registration for non-genuine purposes.
2.128The committee is also assured that a provider is able to request an extension to their registration being cancelled, and that a decision not to extend the period before cancellation is subject to merits and judicial review.
2.129The committee is cognisant that the passage of the bill in 2025 is important to enable implementation of uncapped medical places for indigenous student commencing in 2026, as well as timely implementation of integrity measures in international education and therefore strongly encourages its passage in the 2025 calendar year.
2.130Overall, the committee considers the measures in the bill to be an important step in strengthening the quality, integrity and sustainability of the delivery of education in Australia, with commendable measures such as providing uncapped medical student places for First Nations students particularly welcome. The committee recognises the importance of having robust information from a broad cross-section of Australia's early childhood education and care sector to inform the Service Delivery Price Project. The bill will improve equity and access in higher education, and while noting the comments above, the committee therefore recommends that the bill be passed.
2.131The committee recommends that the Senate pass the bill.
Senator Marielle Smith
Senator for South Australia
Chair