EXPLANATORY STATEMENT

Issued by the authority of the Minister for Education

Education Services for Overseas Students Act 2000

National Code of Practice for Providers of Education and Training to Overseas Students Amendment (Education Agent Commissions) Instrument 2026

AUTHORITY

Subsection 33(1) of the Education Services for Overseas Students Act 2000 (the Act) provides that the Minister for Education (Minister) may make a national code by legislative instrument. Subsection 33(2) of the Act provides that the code is to be called the National Code of Practice for Providers of Education and Training to Overseas Students.

Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make, 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 any such instrument. The amendments to the National Code of Practice for Providers of Education and Training to Overseas Students 2018 (the National Code) made by the National Code of Practice for Providers of Education and Training to Overseas Students Amendment (Education Agent Commissions) Instrument 2026 (the Amendment Instrument) rely on this provision.

PURPOSE AND OPERATION

The Amendment Instrument amends the National Code to complement amendments made to the Act by the Education Legislation Amendment (Integrity and Other Measures) Act 2025 (ELA Act) in relation to education agents and education agent commissions.

The Amendment Instrument amends Standard 4 of the National Code, relating to education agents, to provide that a registered provider must not give an education agent commission to an education agent, where the commission is in relation to the recruitment of an overseas student who has commenced studying in a course with another registered provider. There are three exceptions to this:

• where a student is recruited for a course and becomes an accepted student (as defined in the Act) of the provider on or before 31 March 2026; or
• where a student is recruited for the course delivered by the provider, as specified in the confirmation of enrolments (CoE) (as defined in the National Code), for which the student’s student visa was granted;
• where a student is recruited for a course that commences after the student has completed their principal course of study with the other registered provider.

The first exception permits providers to give education agent commissions to education agents in relation to students who may be in the process of transferring between providers when the amendments commence and become accepted students with that provider on or before 31 March 2026. After 31 March 2026, the amendments will apply to all student transfers at all registered providers.

The second and third exceptions are not considered to be student transfers so providers can still give an education agent commission to an education agent in the following situations:

• in relation to the recruitment of the student in courses for which the student has been granted a student visa, i.e. the courses which are part of the student’s package of courses for which they applied for their visa. Progression to the next course in a package is not considered a transfer, so commissions may be paid for each course in a package.
• where the new course would begin after the student has completed their principal course of study, as this would not constitute a ‘transfer’ for the purposes of the new provisions. Commissions may be paid in this situation because a student may need the assistance of an education agent where they are exploring possible types of further study.

The amendments aim to remove incentives for education agents, through education agent commissions, to facilitate unnecessary transfers of students between providers. Education agent commissions have been identified as an area of significant concern with regard to integrity problems in the international education sector. As international student fees are generally much higher than domestic student fees, providers are incentivised to pay high value commissions to education agents in order to enrol both onshore and offshore international students. Commissions can vary significantly between providers, including some providers reported to be offering commissions as high as 50 per cent of a student’s annual tuition fee. Where students are already onshore in Australia (i.e. they have already been granted a student visa) there is comparatively less labour required in enrolling that student with a new provider and thus earning a commission. This means there is a particularly strong incentive for education agents to facilitate transfers of onshore students.

Concerns have also been raised about onshore student transfers. Analysis conducted by the Department of Education (department) suggests that there are high levels of transfers taking place. While transfers can occur for genuine reasons, for example, due to changed study goals or personal needs, transfers may also be facilitated by unscrupulous education agents and providers for financial benefits, where this may not be in the best interests of the student. By banning the payment of commissions to education agents in relation to the recruitment of a student who is transferring, unscrupulous education agents will not be incentivised to target onshore students for financial gain. This change acknowledges the role of high-quality education agents in providing overseas students with guidance that is in the students’ best interests, particularly before these students arrive onshore.

The commission ban will not prevent genuine transfers from taking place. Once onshore, it is expected that students are more capable of navigating Australian systems, including enrolment and transfer processes, and have sufficient English language skills to transfer providers independently; that is, without the involvement of an education agent. If students would like further guidance and are willing to pay for the service, education agents will still be able to charge students a direct fee to facilitate their transfer. Additionally, there are requirements on providers under the National Code to provide support services to students, which means that providers may have a role in supporting their students in genuine transfer situations.

The Amendment Instrument also removes the definition of ‘education agent’ in the National Code as that term has been defined in the Act following the commencement of the ELA Act.  

IMPACT ANALYSIS

The Office of Impact Analysis (OIA) advised that an Impact Analysis (IA) is required for this change. This IA has been published as an addendum to the ‘Improving Integrity in the International Education Sector' IA, OIA reference number OIA23-05969.

COMMENCEMENT

The Amendment Instrument commences the day after it is registered.

CONSULTATION

The Government announced its intent to prohibit the payment of education agent commissions for onshore student transfers in October 2023. The Senate Education and Employment Legislation Committee’s inquiry into the Education Services for Overseas Students (Quality and Integrity) Bill 2024 (ESOS Bill) provided stakeholders with the opportunity to provide written submissions and appear at four public hearings to voice their feedback on the measures included in the ESOS Bill. A number of submissions presented feedback on the proposed ban on onshore transfer commissions, with some sector representatives signalling support for the measure.

The Senate Education and Employment Legislation Committee’s inquiry into the Education Legislation Amendment (Integrity and Other Measures) Bill 2025 provided another opportunity for stakeholders to make written submissions. Some submissions were supportive of the ban, particularly if it did not apply to genuine student movement, e.g., to further study.

The department established a dedicated working group with expert practitioners from the sector to consult on the proposed ban on onshore transfer commissions. In four meetings in November and December 2025, working group members were able to provide feedback on the drafting of the Amendment Instrument and future implementation of the ban. This feedback was considered in drafting the Amendment Instrument.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

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

National Code of Practice for Providers of Education and Training to Overseas Students Amendment (Education Agent Commissions) Instrument 2026

The National Code of Practice for Providers of Education and Training to Overseas Students Amendment (Education Agent Commissions) Instrument 2026 (the Amendment 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 Amendment Instrument amends the National Code of Practice for Providers of Education and Training to Overseas Students 2018 (National Code) to complement amendments made to the Act by the Education Legislation Amendment (Integrity and Other Measures) Act 2025 (ELA Act) in relation to education agents and education agent commissions.

The Amendment Instrument amends Standard 4 of the National Code, relating to education agents, to provide that a registered provider must not give an education agent commission to an education agent, where the commission is in relation to the recruitment of an overseas student who has commenced studying in a course with another registered provider. There are three exceptions to this:

• where a student is recruited for a course and becomes an accepted student (as defined in the Act) of the provider on or before 31 March 2026; or
• where a student is recruited for the course delivered by the provider, as specified in the confirmation of enrolments (CoE) (as defined in the National Code), for which the student’s student visa was granted;
• where a student is recruited for a course that commences after the student has completed their principal course of study with the other registered provider.

The first exception permits providers to give education agent commissions to education agents in relation to students who may be in the process of transferring between providers when the amendments commence and become accepted students with that provider on or before 31 March 2026. After 31 March 2026, the amendments will apply to all student transfers at all registered providers.

The second and third exceptions are not considered to be student transfers so providers can still give an education agent commission to an education agent in the following situations:

• in relation to the recruitment of the student in courses for which the student has been granted a student visa, i.e. the courses which are part of the student’s package of courses for which they applied for their visa. Progression to the next course in a package is not considered a transfer, so commissions may be paid for each course in a package.
• where the new course would begin after the student has completed their principal course of study, as this would not constitute a ‘transfer’ for the purposes of the new provisions. Commissions may be paid in this situation because a student may need the assistance of an education agent where they are exploring possible types of further study.

The amendments aim to remove incentives for education agents, through education agent commissions, to facilitate unnecessary transfers of students between providers. Education agent commissions have been identified as an area of significant concern with regard to integrity problems in the international education sector. As international student fees are generally much higher than domestic student fees, providers are incentivised to pay high value commissions to education agents in order to enrol both onshore and offshore international students. Commissions can vary significantly between providers, including some providers reported to be offering commissions as high as 50 per cent of a student’s annual tuition fee. Where students are already onshore in Australia (i.e. they have already been granted a student visa) there is comparatively less labour required in enrolling that student with a new provider and thus earning a commission. This means there is a particularly strong incentive for education agents to facilitate transfers of onshore students.

Concerns have also been raised about onshore student transfers. Analysis conducted by the Department of Education suggests that there are high levels of transfers taking place. While transfers can occur for genuine reasons, for example, due to changed study goals or personal needs, transfers may also be facilitated by unscrupulous education agents and providers for financial benefits, where this may not be in the best interests of the student. By banning the payment of commissions to education agents in relation to the recruitment of a student who is transferring, unscrupulous education agents will not be incentivised to target onshore students for financial gain. This change acknowledges the role of high-quality education agents in providing overseas students with guidance that is in the students’ best interests, particularly before these students arrive onshore.

The commission ban will not prevent genuine transfers from taking place. Once onshore, it is expected that students are more capable of navigating Australian systems, including enrolment and transfer processes, and have sufficient English language skills to transfer providers independently; that is, without the involvement of an education agent. If students would like further guidance and are willing to pay for the service, education agents will still be able to charge students a direct fee to facilitate their transfer. Additionally, there are requirements on providers under the National Code to provide support services to students, which means that providers may have a role in supporting their students in genuine transfer situations.

The Amendment Instrument also removes the definition of ‘education agent’ in the National Code as that term has been defined in the Act following the commencement of the ELA Act.  

Human rights implications

The Amendment Instrument engages the following rights:

• the right to education; and
• the right to work.

Right to education

Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognises the important personal, societal, economic and intellectual benefits of education. Article 13 also provides that secondary education in all its different forms, including higher education, shall be made generally available and accessible to all by every appropriate means. Article 13(2)(c) of the ICESCR 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 Amendment Instrument amends the National Code to disincentivise education agents from facilitating unnecessary student transfers between providers. These amendments promote the right to education by limiting the ability of providers and agents to recruit non-genuine students to Australia and ensuring that those students who are seeking education in Australia are protected from unscrupulous providers or education agents, who facilitate transfers for their own profit and gain. Overseas students will still have the freedom to transfer between providers if they wish to in pursuit of receiving the highest quality of education. However, providers must not give education agent commissions to education agents if the transfer occurs prior to the student completing their principal course of study, to ensure that the transfer is not just for the benefit of providers and agents.

Right to work

The Amendment Instrument engages the right to work contained in Article 6 of the ICESCR. Article 6(1) recognises the right to work, which includes the right of everyone to the opportunity to gain one’s living by work which one freely chooses or accepts. The amendments aim to protect overseas students and Australia’s international reputation of offering quality education services by disincentivising education agents from facilitating student transfers between providers for their own profit and gain and that are not necessarily in the students’ best interests. However, education agents can still assist students in transfers and charge them a fee for their services. Any limitations on the right to work by restricting the ability of education agents to be paid education agent commissions by providers in the confined circumstances outlined in the Amendment Instrument are reasonable, necessary, and proportionate to the purpose of protecting Australia’s international education sector.

Conclusion

The Amendment Instrument is compatible with human rights because it supports human rights and to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

Assistant Minister for Education, the Hon Julian Hill MP

NaTIONAL CODE OF PRACTICE FOR PROVIDERS OF EDUCATION AND TRAINING TO OVERSEAS STUDENTS AMENDMENT (EDUCATION AGENT COMMISSIONS) INSTRUMENT 2026

EXPLANATION OF PROVISIONS

Section 1: Name

1.       This provision specifies the name of the instrument as the National Code of Practice for Providers of Education and Training to Overseas Students Amendment (Education Agent Commissions) Instrument 2026 (the Amendment Instrument).

Section 2: Commencement

1.       This section provides that the Amendment Instrument commences the day after it is registered on the Federal Register of Legislation.

Section 3: Authority

1.       This section provides that the Amendment Instrument is made under subsection 33(1) of the Education Services for Overseas Students Act 2000 (the Act).

Section 4: Schedules

1.       This is a technical provision that explains that each instrument that is specified in a Schedule to the Amendment 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.

Schedule 1—Amendments

National Code of Practice for Providers of Education and Training to Overseas Students 2018

Item 1: After Standard 4.6

1.       This item amends Standard 4 of the National Code of Practice for Providers of Education and Training to Overseas Students 2018 (National Code) to set out a new standard in relation to education agent commissions.
2.       New Standard 4.7 provides that, unless Standard 4.8 applies, the registered provider must not give an education agent commission to an education agent, where the education agent commission is in relation to the recruitment of an overseas student who has commenced studying in a course with another registered provider.
3.       New Standard 4.8 provides the exceptions to Standard 4.7, being that the registered provider is permitted to give an education agent commission to an education agent where the education agent commission is in relation to the recruitment of an overseas student:
   1.       who becomes an accepted student of the provider on or before 31 March 2026; or
   2.       for the courses delivered by the provider, as specified in the confirmation of enrolments (CoEs), for which the student’s student visa was granted; or
   3.        for a course that commences after the student’s completion of their principal course of study with the other registered provider.
4.       The intent of these new standards is to disincentivise the facilitation by education agents of unnecessary student transfers between providers once the overseas student arrives in Australia and commences studying. The intent is to prohibit providers from giving education agent commissions for transfers in the time between a student commencing their first course onshore and completing their principal course of study.
5.       Overseas students are still able to transfer between providers, as long as their transfer restricted period has ended or they receive a release from their provider (see Standard 7 of the National Code), but providers will be prohibited from giving an education agent commission to an education agent in that situation.
6.       These new standards rely on the definitions of ‘education agent’ and ‘education agent commission’ in the Act, as introduced in the Education Legislation Amendment (Integrity and Other Measures) Act 2025 (ELA Act). The definition of ‘education agent commission’ includes both monetary and non-monetary commissions. It includes considerations and benefits paid for a wide variety of activities, but this ban only prohibits commissions to be given in relation to the recruitment of overseas students and not other activities that may be undertaken by education agents.
7.       The ban will prevent providers from giving education agent commissions in relation to the recruitment of an overseas student, after that student has commenced study with another provider. This applies both while the student is still studying with another provider, and after they have completed or withdrawn from a course with the other provider, until that student completes their principal course of study.
8.       There are three exceptions to the ban on commissions. Commissions will still be able to be given to education agents for the recruitment of a student after the student has commenced studying with another provider in the following cases:
   1.       The student becomes an accepted student of a provider on or before 31 March 2026. This creates a short transitional period to allow providers to adjust their practices and contractual arrangements, and fulfil existing contractual arrangements where there are student transfers underway. Commissions cannot be given if a student becomes an accepted student of a provider after 31 March 2026.
   2.       The course for which the commission is given is a course which is part of the package of courses for which the student was granted a student visa, as specified in the CoEs supporting their student visa application. Progression between courses in a package, where the student is studying the particular courses at particular providers specified in the CoEs for which the student visa was granted, does not constitute a transfer. This does not apply where a student transfers to a similar course at a different provider, even where the course has the same name and leads to the same courses in the package.
   3.        The course for which the commission is given commenced or will commence after the student has completed their principal course of study. Agents can provide valuable services to students considering further study after they have completed their package of courses, particularly where the further study is of a different type or at a different AQF level to their initial courses. This would not constitute a transfer, and students will generally require a new student visa in this case, so it is appropriate that commissions are allowed to be given.

Item 2: In the table under the heading Definitions

1.       This item omits the row with the definition of “education agent” as that term is now defined in the Act following the commencement of the ELA Act.