Written agreements with overseas students
Standard 3 of the National Code requires ESOS providers to enter into a written agreement with overseas students. The written agreement formalises the student’s enrolment and ensures the obligations and rights of both the provider and student are clearly set out.
A positive student experience is crucial to building and maintaining a strong, resilient, and highly respected international education and training sector in Australia. The quality of a student’s course and the associated support services offered by the provider are often central to achieving this outcome.
This guidance material is designed to assist providers registered under the Education Services for Overseas Students Act 2000 (ESOS Act) to understand their obligations when negotiating and recording written agreements with overseas students.
Regulatory obligations relating to written agreements are outlined within Part 5 Division 2 of the ESOS Act and Standard 3 of the National Code of Practice for Providers of Education and Training to Overseas Students 2018 (National Code).
Why do we need written agreements between overseas students and Australian education providers?
Agreed terms and conditions relating to an overseas student’s enrolment in a training course must be formalised into a written agreement.
A written agreement is a contract between the provider and overseas student and should be fair and reasonable, particularly regarding refund terms in the event that either party defaults on agreed arrangements.
A written agreement formalises the student’s (or intending student’s) enrolment and ensures the obligations and rights of both the provider and the student are clearly set out, including the course and services the provider is obliged to supply, tuition and non-tuition fees payable, and refund policies. The provider must enter into a written agreement with the student before (or at the same time as) accepting course money from the student.
Registered providers must:
- have a written agreement with overseas students or intending overseas students they enrol, which may take any form, as long as it meets the requirements under the ESOS Act and the National Code;
- ensure the written agreement is signed or otherwise accepted by the overseas student, or their parent or legal guardian if they are under 18 years of age;
- include information in the written agreement about course details, entry requirements, and conditions on enrolment (if applicable), fees, refund and cancellation policies, and the provider’s complaints and appeals processes; and
- advise overseas students of required information.
Structure of a written agreement
In addition to all requirements in the ESOS Act, the written agreement must, in plain English:
- outline the course or courses in which the student is to be enrolled, including:
- the expected course start date,
- the location(s) at which the course will be delivered,
- the offered modes of study for the course, including compulsory online and/or work-based training, placements, and/or other community-based learning and/or collaborative research training arrangements
- outline any prerequisites necessary to enter the course or courses, including:
- English language requirements
- list any conditions imposed on the student’s enrolment
- list all tuition fees payable by the student for the course, including:
- the periods to which those tuition fees relate, and
- payment options (including, if permitted under the ESOS Act, that the student may choose to pay more than 50 per cent of their tuition fees before their course commences)
- provide details of any non-tuition fees the student may incur, including:
- as a result of having their study outcomes reassessed,
- deferral of study,
- fees for late payment of tuition fees, or
- other circumstances in which additional fees may apply
- set out the circumstances in which personal information about the student may be disclosed by the registered provider to the Commonwealth including the Tuition Protection Service (TPS), or state or territory agencies, in accordance with the Privacy Act 1988
- outline the registered provider’s internal and external complaints and appeals processes, in accordance with Standard 10 (Complaints and appeals)
- set out the refund requirements that apply in the case of student default and provider default, including:
- amounts that may or may not be repaid to the overseas student (including any tuition and non-tuition fees collected by education agents on behalf of the registered provider)
- outline a process for claiming a refund, including:
- any specified person(s) who can receive a refund (other than the overseas student).
- an explanation of what happens in the event of a course not being delivered, including the role of the TPS
- contain a statement advising that the agreement does not affect the rights of an overseas student to take action under Australian Consumer Law, where applicable
- contain advice to overseas students that they are required to notify the registered provider of current contact details, any changes to contact details, and who to contact in an emergency, while in Australia and studying with that registered provider
- state that the student is responsible for keeping a copy of the written agreement as supplied by the registered provider, and receipts of any payments of tuition fees or non-tuition fees
- only use links to provide supplementary material.
Registered providers must retain records of all written agreements, as well as receipts of payment made under the written agreement, for at least two years after the overseas student ceases to be an accepted student. This is consistent with the record keeping requirements under section 21 of the ESOS Act and section 13 of the Education Services for Overseas Students Regulations 2019.
Overseas students enrolled in consecutive courses with the one provider do not need a separate written agreement for each course. If the terms of the agreement are the same for each course, the registered provider may have a single written agreement covering all the courses.
The Commonwealth Ombudsman has published an Issues Paper on Improving fairness in written agreements between international students and Australian education providers that:
- includes case studies of potentially unfair and unreasonable outcomes observed in complaint investigations
- explores how the Australian Consumer Law applies to international student written agreements,
- considers potentially problematic terms and other issues, and
- better practice suggestions for avoiding disputes.
ASQA has published a Guide to provider default obligations under the ESOS Act, which details information on tuition assurance for overseas students for courses for which they have paid, and refunds where applicable.