If the proposed 2025 ESOS amendments are ‘substantially the same’ as the 2024 Bill, with the exception of removing enrolment caps, what impact did consultation have?
As The Koala reported last week the Minister for Education, Jason Clare tabled a new Education Legislation Amendment (Integrity and Other Measures) Bill 2025 proposing amendments to the Education Services for Overseas Students Act 2000 (ESOS Act) and other legislative instruments (TKN 091025).
According to the Explanatory Memorandum (EM) tabled with the Bill, “Parts 1‒7 of Schedule 1 are substantially the same as Parts 1‒6 and 8 of the Education Services for Overseas Students Amendment (Quality and Integrity) Bill 2024”, although there has been some “fine-tuning” to wording to provide clarification about the meaning of some ambiguous terms.
The EM goes on to acknowledge that an inquiry into the 2024 Bill received “196 submissions and held four hearings” as well as receiving feedback on the Draft International Education and Skills Strategic Framework through a public consultation process (noting that submissions for this process have not been published).
“The views put forward over the course of these public consultation processes have been taken into account to fine-tune the measures in the Bill”.
It’s true that a significant proportion of the sector feedback in 2024 related to opposing international student enrolment limits; a significant proportion, but not all.
This raises the question that if the Bill remains largely unchanged, aside from scrapping enrolment caps, how meaningfully did consultation shape the legislative outcome?
What remains unchanged?
(Note that minor changes to number and replacement of Part for Division are not considered changes in the context of this article.)
Part 1-Education agents and commissions
Remains unchanged except for some minor word replacements that are insignificant. After enrolment caps, this probably received the most feedback during the consultation process.
Part 1 includes a definition of ‘education agent commission’, with the Minister flagging back in 2023 that amendments to the ESOS Act would lead to a ban on paying onshore agent commissions through changes to the National Code of Practice for Providers of Education and Training to Overseas Students 2018 (National Code). He reiterated this during his speech introducing the Bill to parliament.
“This will allow for complementary amendments to be made to the National Code of Practice for Providers of Education and Training to Overseas Students 2018 to ban commissions from being paid to education agents for onshore student transfers,” Clare said.
Part 2-Giving information to registered providers
There are no changes to the 2025 Bill Part 2 which allows for information to be provided to government agencies about education agents, transferring students, and commissions paid.
Part 3-Management of provider applications
Other than removal of references to enrolment limits, there are no substantive changes to Part 3, which “provides for the Minister to suspend the making or processing of applications for registration or adding courses to registration”.
Part 6-Investigation of offences
There are no changes between the two Bills.
What has changed?
Changes to Part 4 and 5 are the ‘fine-tuning’ changes referred to in the EM.
Part 4-Registration requirements
The 2025 Bill clarifies that a provider may be exempted from the requirement to deliver courses to domestic students before being eligible to teach international students if they deliver one or both of an ELICOS or a Foundation Program, whereas the 2024 Bill limited the exemption to providers offering only an ELICOS or a Foundation Program.
Part 5-Automatic cancellation of registration
The 2025 Bill expands the scope so that the automatic cancellation trigger occurs if a provider fails to deliver any courses at any location to any overseas students in a 12-month period, whereas automatic cancellation was triggered in the 2024 Bill when the provider does not deliver a course at a location to an overseas student.
Timing for the start of the trigger in the 2025 Bill is 1 January 2026, whereas the 2024 Bill back dated the trigger commencement to 1 January 2024.
During the 2024 Bill inquiry, stakeholders argued that the trigger was disproportionate, especially for smaller or niche providers who may run courses intermittently.
Part 7-Automatic cancellation of specified courses
Part 7 of the 2024 Bill proposed enrolment caps, whereas the 2025 Bill empowers the Minister to cancel or prohibit entire classes of courses from being offered to overseas students, if they are satisfied that:
- there are systemic issues in relation to the standard of delivery of the courses included in the class
- there is limited value to Australia’s skills and training needs and priorities
- it is in the public interest to do so.
Part 8-Internal review
This new clause provides for internal review of certain decisions and did not appear in the 2024 Bill.
What else did the sector want?
While it’s not possible to cover all 196 submissions to the 2024 Bill inquiry, the following highlights some of the key issues raised by the sector at the time.
Agent commissions and regulation
Other than enrolment caps, changes to the regulation of education agents and commissions was one of the most contested elements of the 2024 Bill. Providers, peak bodies and representative groups broadly accepted the need for reform, but argued that the proposed approach risked overreach, unintended consequences, and uneven impacts.
- Submissions argued that banning onshore commissions would disrupt legitimate student support channels and create unintended compliance risks:
“…prohibiting all agent commissions for onshore transfers fails to 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.” (Independent Higher Education Australia submission to the 2024 Bill inquiry)
- Some called for clearer definitions:
“The definition of an education agent as proposed under this clause is too broad. This
definition would appear to include every entity, other than an education provider’s directly
employed staff, that have pre-enrolment engagement with international students.” (International Education Association of Australia submission to the 2024 Bill inquiry)
- The 2024 Bill proposed that ESOS agencies consider whether a provider is owned by, or linked to, an education agent when assessing if it is “fit and proper” for the purposes of provider registration. Stakeholders argued this could unfairly penalise legitimate providers with complex ownership structures, and that the criteria were too vague, creating uncertainty and compliance risks:
“UA agrees collusive and deceptive practices are not acceptable and that transparency of provider-agent relationships is important but urges that further consideration is made to ensure that there are no unintended consequences when considering this inclusion.” (Universities Australia submission to the 2024 Bill inquiry)
- Submissions also raised concerns about the requirement to provide details of agent commissions and the commercially sensitive nature of that information:
“Any requests for education agent commission information should be based on thorough risk
assessments by regulators, made so as not to impose a significant additional administrative red tape
burden on business and reveal commercially sensitive information. The provision of such information
mandated by regulators must be prevented from being shared with competing registered providers.” (Independent Tertiary Education Council Australia submission to the 2024 Bill inquiry)
Registration requirements
The new legislation will requirement that new providers must deliver courses exclusively to domestic students for two years before applying to register to deliver to overseas students. Stakeholders argued that this would create barriers to entry, stifle competition, and disadvantage those without large domestic cohorts.
“The arrangement is discriminatory, anti−competitive and disadvantages independent higher education providers”. (Independent Higher Education Australia submission to the 2024 Bill inquiry)
“Rather than having an automatic requirement of a minimum two years teaching domestic students, before being eligible to apply for CRICOS registration, allowance should be made for Ministerial discretion in certain cases such as innovative course design.” (International Education Association of Australia submission to the 2024 Bill inquiry)
Back to the original question
If the proposed 2025 ESOS amendments are ‘substantially the same’ as the 2024 Bill, with the exception of removing enrolment caps, what impact did consultation have?
Based on the analysis, the answer appears to be: not much.
Perhaps any influence was absorbed entirely by the submissions opposing enrolment caps.
