Education Services for Overseas Students (Designated Authority) Determination 2011 (No. 2)

Overview

The Education Services for Overseas Students (Designated Authority) Determination 2011 (No. 2) was enacted to address the inaccuracies in the previous criteria for determining designated authorities under the Education Services for Overseas Students Act 2000. This determination was made by the Minister for Tertiary Education, Skills, Jobs and Workplace Relations, aiming to ensure that the designated authority accurately reflects the policy intent regarding providers of English Language Intensive Courses for Overseas Students (ELICOS) and Foundation programs. The revised determination seeks to clarify that the Australian Skills Quality Authority (ASQA) will be the designated authority for ELICOS or Foundation programs in referring states, non-referring states, or territories unless the program is being offered by a provider in its capacity as a school. For other cases, the designated authority will be the person responsible under the law of the relevant state for approving providers to offer courses to overseas students. The purpose of this revised determination is to align the regulatory framework with the current policy and legislative changes, particularly those stemming from the National Vocational Education and Training Regulator Act 2011 and the subsequent amendments. The determination ensures that the designated authority accurately reflects the legislative intent and the existing practical arrangements. The Department of Education, Employment and Workplace Relations has engaged in consultations with key stakeholders, including ASQA, Independent Schools Council of Australia, English Australia, and the NSW Board of Studies, to facilitate this determination.

Scope and Application

The Education Services for Overseas Students (Designated Authority) Determination 2011 (No. 2) applies to providers of English Language Intensive Courses for Overseas Students (ELICOS) and Foundation programs, specifically clarifying the circumstances under which the Australian Skills Quality Authority (ASQA) or a state-based authority acts as the designated authority. This determination is applicable to providers across Australia, taking into account whether the state has referred its vocational education and training powers to the Commonwealth. The Revised Determination specifies that ASQA is the designated authority for ELICOS or Foundation programs provided in states that have referred their powers or in the Australian territories, unless the program is being offered by a school that is not part of its core curriculum. Conversely, in states that have not referred their powers, the state-based authority remains the designated authority for such programs, unless they are being provided by a school that is also a registered training organisation. The Revised Determination aims to correct inaccuracies in the previous arrangement, ensuring that the designated authority aligns with the legislative intent and jurisdictional responsibilities.

Key Provisions

The main operative sections of the Education Services for Overseas Students (Designated Authority) Determination 2011 (No. 2) (the Revised Determination) are found within sections 2 to 5, which outline the criteria for determining the designated authority in relation to a provider of English Language Intensive Courses for Overseas Students (ELICOS) or Foundation programs. Specifically, section 2(1) revokes the Previous Determination, while section 3 specifies that the Australian Skills Quality Authority (ASQA) is the designated authority for providers of ELICOS or Foundation programs in those States that have referred their powers in relation to vocational education and training under the National Vocational Education and Training Regulator Act 2011 (section 3(1)). Section 4 then provides that for all other cases, the designated authority is the person responsible under the law of the relevant State for approving providers to provide courses to overseas students for that State (section 4(1)). Section 5, meanwhile, sets out the circumstances in which the Revised Determination applies. The Revised Determination imposes obligations on providers of ELICOS or Foundation programs to ensure that they are approved by the correct designated authority, as specified in the Determination. For providers in States that have referred their powers under the NVETR Act, this means that they must be approved by ASQA (section 3(1)). For providers in non-referring States or Territories, or for schools providing such programs as part of their school program or curriculum, the obligation is to be approved by the relevant State authority (section 4(1)). Providers must also ensure that they comply with any other relevant legislative requirements, such as registration as a training organisation if necessary. The Revised Determination does not create new offences or penalties, but it does clarify the consequences for providers who fail to comply with the Determination or with the requirements of the designated authority. Providers who do not obtain the necessary approval from the designated authority may be in breach of the ESOS Act, which could result in civil or criminal penalties under that Act. The maximum penalties for breaches of the ESOS Act can include fines of up to $27,500 for individuals and $137,500 for bodies corporate, as well as imprisonment for up to two years for serious offences (section 119 of the ESOS Act). Additionally, providers who fail to comply with the requirements of the designated authority may also be subject to penalties or sanctions under the relevant State legislation.