EXPLANATORY STATEMENT
Issued by the authority of the Assistant Minister for International Education
Education Services for Overseas Students Act 2000
Education Services for Overseas Students (Notice Requirements—Student Defaults) Instrument 2026
AUTHORITY
Subsection 47H(5) of the Education Services for Overseas Students Act 2000 (the Act) provides that the Minister may, by legislative instrument, specify requirements for a notice given under section 47H in relation to a default by an overseas student or intending overseas student who requires a refund under section 47E.
Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary such instrument. The repeal of the Education Services for Overseas Students (Student default – discharge of obligations – requirements for a notice) Specification 2015 (No. 1) (the Former Instrument) by the Education Services for Overseas Students (Notice Requirements—Student Defaults) Instrument 2026 (the Instrument) relies on this provision.
PURPOSE AND OPERATION
Section 47H of the Act requires that a registered provider must give a notice in accordance with that section, whenever an overseas student or intending overseas student defaults in relation to a course provided by the provider and the provider is required to provide a refund under section 47E. Subsection 47H(3) of the Act provides that the notice must include information about:
- whether the provider has provided a refund under section 47E;
- details of the student to whom the provider provided the refund; and
- details of the amount of the refund provided.
Subsection 47H(4) of the Act stipulates that the notice must also comply with requirements set out in the legislative instrument made by the Minister under subsection 47H(5).
This Instrument is made under subsection 47H(5) of the Act, and sets out the further requirements for a notice that a provider must give under section 47H. The Instrument replaces the Former Instrument. The Former Instrument was the instrument under which the Minister set these requirements from 11 December 2015. However, the Former Instrument was due to sunset on 1 April 2026, and, as such it needed to be remade. The Instrument includes very similar requirements to the Former Instrument, with some minor changes to clarify how the notice is to be provided.
Information about whether refunds have been paid to students in relation to student defaults supports the effectiveness of Australia’s tuition protection arrangements. This information helps to facilitate prompt and effective responses by providers and by the Tuition Protection Service (TPS) if necessary. It enables regulatory authorities to monitor provider compliance with the refund provisions under the Act, or other bodies to investigate complaints about refunds.
COMMENCEMENT
The Instrument commences on the day after it is registered on the Federal Register of Legislation.
CONSULTATION
The International Education Stakeholder Forum (IESF) and Education Visa Consultative Committee (EVCC) were consulted in early 2026 on the draft of the Instrument. The IESF and EVCC comprise of relevant Australian Government agencies, peak international education bodies, state and territory representatives, business groups, and unions. All stakeholders who provided feedback as part of this process were broadly supportive of the Instrument.
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 (Notice Requirements—Student Defaults) Instrument 2026
The Education Services for Overseas Students (Notice Requirements—Student Defaults) Instrument 2026 (the 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
Section 47H of the Education Services for Overseas Students Act 2000 (the Act) requires that a registered provider must give a notice in accordance with that section, whenever an overseas student or intending overseas student defaults in relation to a course provided by the provider and the provider is required to provide a refund under section 47E. Subsection 47H(3) of the Act provides that the notice must include information about:
- whether the provider has provided a refund under section 47E;
- details of the student to whom the provider provided the refund; and
- details of the amount of the refund provided.
Subsection 47H(4) of the Act stipulates that the notice must also comply with requirements set out in the legislative instrument made by the Minister under subsection 47H(5).
This Instrument is made under subsection 47H(5) of the Act, and sets out the further requirements for a notice that a provider must give under section 47H. The Instrument replaces the Former Instrument. The Former Instrument was the instrument under which the Minister set these requirements from 11 December 2015. However, the Former Instrument was due to sunset on 1 April 2026, and, as such it needed to be remade. The Instrument includes very similar requirements to the Former Instrument, with some minor changes to clarify how the notice is to be provided.
Information about whether refunds have been paid to students in relation to student defaults supports the effectiveness of Australia’s tuition protection arrangements. This information helps to facilitate prompt and effective responses by providers and by the Tuition Protection Service (TPS) if necessary. It enables regulatory authorities to monitor provider compliance with the refund provisions under the Act, or other bodies to investigate complaints about refunds.
Human rights implications
The Instrument supports the right to education contained in Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 13 provides that ‘higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education’.
The Instrument supports the right to education by enhancing protections for overseas students studying or intending to study in Australia. By setting out requirements for providers when those providers report on their refund obligations to students under section 47E of the Act, the Instrument ensures that regulatory authorities have access to important information about provider compliance. Monitoring and ensuring that providers comply with their obligations to provide refunds under the Act ensures intending overseas students and overseas students are protected, and supports the right to education.
Conclusion
The Instrument is compatible with human rights because it supports the right to education.
Assistant Minister for International Education, the Hon Julian Hill MP
EDUCATION SERVICES FOR OVERSEAS STUDENTS (NOTICE REQUIREMENTS—STUDENT DEFAULTS) INSTRUMENT 2026
EXPLANATION OF PROVISIONS
Section 1: Name
- This is a formal provision specifying the name of the Education Services for Overseas Students (Notice Requirements—Student Defaults) Instrument 2026 (the Instrument).
Section 2: Commencement
- This provision provides that the Instrument commences on the day after it is registered on the Federal Register of Legislation.
Section 3: Authority
- This provision provides that the Instrument is made under subsection 47H(5) of the Education Services for Overseas Students Act 2000 (the Act).
Section 4: Definitions
- This provision sets out definitions of terms used in the Instrument and provides that any other expression used in the Instrument that is used in the Act, has the same meaning in the Instrument as it has in the Act.
Section 5: Schedules
- This is a technical provision that explains that each instrument that is specified in a Schedule to the instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
Section 6: Requirements for a notice on student default
- This section outlines the requirements that a notice under section 47H of the Act must comply with.
- This section provides that a provider must provide a notice to the ESOS agency and the TPS Director under section 47H, by entering the following information into PRISMS for each overseas student or intending overseas student that defaults in relation to a course provided by the provider and for whom the provider is required to provide a refund under section 47E:
- if the provider has not provided a refund in accordance with section 47E – the reason why it has not done so;
- if the provider has provided a refund in accordance with section 47E: the date the refund was paid by the provider to the student, confirmation that the refund amount was calculated in accordance with subsection 47E(4) of the Act, and the date when the student default occurred.
- The note under the section provides that the notice must also include the information required by subsection 47H(3) of the Act.
Schedule 1—Amendments
Education Services for Overseas Students (Student default – discharge of obligations – requirements for a notice) Specification 2015 (No. 1)
Item 1: The whole of the instrument
- This item repeals the Education Services for Overseas Students (Student default – discharge of obligations – requirements for a notice) Specification 2015 (No. 1) because it is replaced by the Instrument.