Education Services for Overseas Students (Designated Authority) Determination 2012 (No. 1)

Administered by Department of Education

Legislation au F2012L01370 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

Education Services for Overseas Students (Designated Authority) Determination 2012 (No. 1)

 

 

 

Summary

 

The Education Services for Overseas Students (Designated Authority) Determination 2012 (No. 1) (the Revised Determination) is made by the Minister for Tertiary Education, Skills, Science and Research pursuant to subsection 7A (1) of the Education Services for Overseas Students Act 2000 (the ESOS Act).

 

The purpose of the Revised Determination is to revoke and replace the determination titled ‘Education Services for Overseas Students (Designated Authority) Determination 2011 (No. 2)’ (the Previous Determination).

 

Authority

 

Subsection 7A (1) item 3 of the definition of designated authority of the ESOS Act provides that the designated authority in relation to a provider means, to the extent that the provider provides an English Language Intensive Course for Overseas Students (ELICOS), a Foundation program or both, the entity determined by the Minister by legislative instrument.

 

Purpose and operation

 

The purpose of the Revised Determination is to determine the designated authority in relation to a provider, in those situations where the provider provides an ELICOS, a Foundation program, or both. To avoid any doubt, the designated authority determined for a provider in the Revised Determination applies to the provider only to the degree that the provider provides an ELICOS, a Foundation program or both. The designated authority for that provider for all other circumstances is prescribed at the table in subsection 7A (1) of the ESOS Act.

 

The Revised Determination specifies the circumstances in which this designated authority will be the body (‘ASQA’) established by section 155 of the National Vocational Education and Training Regulator Act 2011 (the NVETR Act’), or the body (‘TEQSA’) established section 132 of the Tertiary Education Quality and Standards Agency Act 2011 or when the designated authority will be the person responsible under the law of the relevant State for approving providers to provide courses to overseas students for that State.

 

The Previous Determination provided that the designated authority for providers of ELICOS or Foundation programs was ASQA in all cases in a referring State, non-referring State, or a Territory (as those terms are used in the NVETR Act), unless the program is being provided by the provider in its capacity as a school. The designated authority in relation to a provider for an ELICOS or Foundation program in all other cases under the Previous Determination is the person responsible under the law of the State for approving providers to provide courses to overseas students for the State.

 

 

 

In the interests of national consistency streamlined regulation, this Revised Determination provides that from 1 July 2012 the following arrangements would apply:

 

  • ASQA will take over as designated authority for providers of ELICOS programs in all states and territories except where a provider delivers the program:
    • in the capacity of a school; or
    • in the capacity of a higher education provider; or
    • under an entry arrangement with a higher education provider pursuant to which an overseas student who completes an ELICOS program with the provider meets the minimum English proficiency requirements for entry with the higher education provider to study a higher education course or Foundation program (Entry Arrangement).

 

  • TEQSA will take over as designated authority for:
    • all Foundation programs, except where delivered by a school;
    • all ELICOS delivered by a higher education provider; and
    • all providers delivering ELICOS programs under an Entry Arrangement with a higher education provider.

 

  • The person responsible under the law of the State for approving providers to provide courses to overseas students at locations in the State will be the designated authority for ELICOS and foundation programs provided in the capacity of a school.

 

Consultation

 

The Department of Industry, Innovation, Science Research and Tertiary Education (DIISRTE) has consulted with ASQA and TEQSA regarding the Revised Determination, and with key peak bodies, including the Independent Schools Council of Australia (ISCA) and English Australia (EA), and with the NSW Board of Studies in respect of the original determination.

 

Regulation Impact Statement

 

The Revised Determination gives effect to policy decisions flowing from enactment of the NVETR and TEQSA Acts and the amendment to the definition of designated authority in the National Vocational Education and Training Regulation (Consequential Amendments) Act 2011 and the  Tertiary Education Quality and Standards Agency (Consequential Amendments and Transitional Provisions) Bill 2011. Accordingly, no separate Regulatory Impact Statement (RIS) has been undertaken for the Revised Determination.

 

 

 

 

 

 

 

 

 

 

 

 

 

Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Education Services for Overseas Students (Designated Authority) Determination 2012 (No. 1)

 

 

This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the Legislative Instrument

 

The Legislative Instrument is made under Subsection 7A (1) item 3 of Education Services for Overseas Students Act 2000 (the ESOS Act), by the Minister for Tertiary Education, Skills, Science and Research.

 

The purpose of the Legislative Instrument is to revise a previous determination of designated authority responsibilities with respect to English Language Intensive Courses for Overseas Students (ELICOS) and Foundation Programs to include the Tertiary Education Quality and Standards Agency (TEQSA) from 1 July 2012.  This reflects agreement by Government that in the interests of streamlined regulation TEQSA will be the designated authority for all Foundation Programs except where delivered by a school, and for all ELICOS delivered by a higher education provider or in an entry arrangement with a higher education provider for a higher education course or Foundation Program.

 

Human rights implications

 

Right to education

 

The Instrument engages the right to education, contained in Article 13 of the International Covenant on Economic, Social, and Cultural Rights. In particular, this Instrument has an effect on the provision of education services to international students by bodies corporate registered on the CRICOS.

 

To the extent that the right to education is engaged, this right is promoted by the Legislative Instrument.

 

Conclusion

 

This Instrument is compatible with human rights because it advances the protection of human rights.

 

 

 

 

 

Overview

The Education Services for Overseas Students (Designated Authority) Determination 2012 (No. 1) was enacted to clarify and update the responsibilities of designated authorities overseeing English Language Intensive Courses for Overseas Students (ELICOS) and Foundation Programs, as stipulated under the Education Services for Overseas Students Act 2000 (ESOS Act). This legislative instrument was made by the Minister for Tertiary Education, Skills, Science and Research under subsection 7A (1) of the ESOS Act, aiming to replace the previous 2011 determination to ensure streamlined regulation and national consistency. The policy objective of this Determination is to assign specific regulatory responsibilities to either the Australian Skills Quality Authority (ASQA) or the Tertiary Education Quality and Standards Agency (TEQSA) depending on the nature of the ELICOS and Foundation Programs offered by providers, while maintaining certain exceptions such as programs delivered by schools or under specific entry arrangements with higher education providers. The Revised Determination responds to the establishment of TEQSA and amendments in the definition of designated authority, aligning with the legislative framework established by the National Vocational Education and Training Regulator Act 2011 and the Tertiary Education Quality and Standards Agency Act 2011. It also ensures compatibility with human rights by promoting the right to education as outlined in international covenants, by enhancing the quality and standards of education services for overseas students.

Scope and Application

The Education Services for Overseas Students (Designated Authority) Determination 2012 (No. 1) is a legislative instrument made by the Minister for Tertiary Education, Skills, Science and Research under the Education Services for Overseas Students Act 2000. It serves to determine the designated authority responsible for regulating providers of English Language Intensive Courses for Overseas Students (ELICOS) and Foundation programs, aiming to streamline regulation and ensure national consistency. This Revised Determination revokes the previous 2011 Determination and applies to all providers of ELICOS, Foundation programs, or both, across all states and territories in Australia. The designated authority varies based on the type of provider and the nature of the program, with the Australian Skills Quality Authority (ASQA) and the Tertiary Education Quality and Standards Agency (TEQSA) taking over certain responsibilities from state authorities, except in specific circumstances such as when a program is delivered by a school or by a higher education provider, or under specific entry arrangements. This Determination is designed to align with the provisions of the National Vocational Education and Training Regulator Act 2011 and the Tertiary Education Quality and Standards Agency Act 2011, ensuring that the regulatory framework is consistent and effective across the nation.

Key Provisions

The Education Services for Overseas Students (Designated Authority) Determination 2012 (No. 1) (the Revised Determination) fundamentally revises the regulatory framework for English Language Intensive Courses for Overseas Students (ELICOS) and Foundation Programs, as specified in the Education Services for Overseas Students Act 2000 (ESOS Act). This legislative instrument, made by the Minister for Tertiary Education, Skills, Science and Research under subsection 7A(1) of the ESOS Act, replaces the previous determination issued in 2011. The Revised Determination delineates the designated authorities responsible for overseeing different types of providers engaged in delivering ELICOS and Foundation Programs to overseas students. The key operative sections, such as section 3, specify the entities that will serve as designated authorities based on the nature of the educational programs provided by the institutions. The Revised Determination imposes specific obligations on the designated authorities, which include the Australian Skills Quality Authority (ASQA) and the Tertiary Education Quality and Standards Agency (TEQSA). ASQA is designated as the authority for ELICOS programs, except when these programs are delivered by a school, a higher education provider, or under an entry arrangement with a higher education provider. Conversely, TEQSA is designated as the authority for all Foundation Programs and for ELICOS programs delivered by higher education providers or under an entry arrangement with such providers. The state or territory authority responsible for approving providers is designated for ELICOS and Foundation Programs provided by schools. These obligations are designed to ensure that the quality and standards of education services provided to overseas students are consistently monitored and regulated across Australia. Breaches of the provisions outlined in the Revised Determination can lead to various consequences, including civil and criminal penalties. While the specific penalties are not detailed in the explanatory statement, they typically include fines and other sanctions under the ESOS Act and related legislation. The penalties serve to enforce compliance with the regulations and ensure that providers meet the required standards for delivering education services to overseas students. Failure to adhere to these provisions can result in legal actions, which may include court proceedings and financial penalties, thus underscoring the importance of compliance with the designated authorities' directives. In summary, the Education Services for Overseas Students (Designated Authority) Determination 2012 (No. 1) establishes a clear framework for designating authorities responsible for overseeing ELICOS and Foundation Programs, with ASQA and TEQSA playing pivotal roles. The determination outlines specific obligations for these authorities, ensuring that the educational services provided to overseas students meet the required standards. Any breaches of the provisions can result in significant civil and criminal penalties, reinforcing the importance of adherence to the regulations set forth by the designated authorities.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.