“Our members are voicing concerns that the powers the Bill proposes would allow the Minister to shut down significant parts of or the whole sector with little to no warning. These powers represent incredible levels of state control over a business sector – powers that would put those providers at legal and financial peril without recourse.” Ian Aird, CEO, English Australia
Part one of TKN’s analysis on the introduction of the first reading of the ESOS Amendment (Quality and Integrity) Bill 2024 in Parliament this week considers what the Bill says about education agents and enrolment limits, and you can read it here. In part two we examine the remaining parts of the Bill and Explanatory Memorandum (EM) and include initial comments from across the sector.
Automatic cancellation of specified courses
- The Minister may suspend and/or cancel specific classes of courses. The reasons for cancellation are:
- there are systemic issues in relation to the standard of delivery
- the courses provide limited value to Australia’s current, emerging and future skills and training needs and priorities
- it is in the public interest
Before this author rants again about the contradiction of a Government that wants to reduce net overseas migration tying courses to Australia’s skills needs, you are referred to part one and Andrew Norton’s excellent point and to Ian Aird’s comment below.
Management of provider applications
- The Minister will be able to suspend the making or processing of applications for registration or adding courses to registration.
TKN is not reassured by the EM, that the Minister “will only exercise this power in limited circumstances, for example, where the Minister has concerns relating to the integrity or sustainability of the international education sector”. Given the length of the suspension can be up to one year, existing providers wishing to introduce new courses or where courses must be re-registered due to material change could be impacted. TKN knows how long it already takes for new courses to be approved within an institution and then by the regulator.
One of the rationale’s given in the EM is that suspensions will allow for an ESOS agency’s main resources to investigating concerns in the sector, rather than processing activities. If our regulators were adequately resourced this would not be necessary.
Registration requirements
- A provider must provide one or more courses for consecutive study periods for two years in Australia to be registered.
- Providers that are teach only ELICOS or only Foundation Programs are exempt from this requirement.
- Table A providers (public universities) are also exempt from this requirement.
This is aimed at deterring non-genuine providers from entering the market as solely a migration pipeline or “trafficking people into bonded labour”.
The exemption of ELICOS and Foundation-only providers makes complete sense. The exemption of Table A providers will leave some other higher education institutions a bit miffed, given that the rationale for the exemption is that Table A providers delivery quality education because they meet the standards to be able to self-accredit courses.
Automatic cancellation of registration
- A provider’s registration will be automatically cancelled if they have not provided a course at a location to international students in a 12-month period.
- Schools are exempt from this, given some schools have traditionally had very small international student numbers.
- Providers are able to apply for an extension of the measurement period.
Aimed at addressing integrity risks posed by dormant providers, TKN doesn’t see too many downsides to this.
Investigation of offences
- Where a provider is under investigation for certain offences has been included, for ESOS agencies when considering if a provider is fit and proper.
This includes under parts of the Criminal Code, Corporations Act 2001 or ESOS Act, among others. This continues the focus on integrity by the Government.
What the sector is saying
Ian Aird, CEO English Australia shares some further concerns, saying “English Australia also notes that giving the Minister the power to take whole course types off CRICOS because of integrity concerns about a number of providers offering them, appears to mean that good providers will be punished because government hasn’t equipped a regulator capable of ensuring providers abide by the rules. It also begs the question of how these decisions will be made and what recourse good providers would have when the government unilaterally voids the value of any investment in quality programs and delivery assets. The chilling impact on capital investment in Australia appears not to have been considered.
Universities Australia CEO, Luke Sheehy, says “a concerning aspect of the legislation, as drafted, is that it would give the Minister power to suspend providers who exceed their cap for a year. This level of overreach is appalling and contrary to risk-based and proportionate regulation, which I will be communicating to the Government”.
Vicki Thomson, Group of Eight CEO said the sector would consult with the government to agree on the exact number of students to be permitted under the caps. “The government has said it will consult and whatever the consultation outcome, Go8 universities have no intention of breaching that agreement,” she said.
The first reading of the legislation can be found here.
The explanatory memorandum can be found here.
