What does ‘return to compliance’ mean?
In 2020, the Tertiary Education Quality and Standards Agency (TEQSA) and the Australian Skills Quality Authority (ASQA) announced regulatory flexibility for the mode of delivery to overseas students of Australian qualifications. This announcement was made in recognition of the significant impact of the COVID-19 pandemic, including domestic lockdowns and international border closures. The flexibility allowed impacted overseas students, including those studying English language intensive courses, to continue their studies fully online.
With international borders re-opening and overseas students once again able to travel to Australia for study, TEQSA and ASQA reviewed these arrangements. On 19 October 2022, TEQSA and ASQA announced that providers are expected to return to full compliance with the National Code of Practice for Providers of Education and Training to Overseas Students 2018 (National Code) and the ELICOS Standards 2018 by 30 June 2023, where it is safe and practical to do so.
This means that after 30 June 2023, registered providers must not deliver more than one-third of the units in a course for overseas students by online or distance learning (Standard 8.19 of the National Code) and must ensure that overseas students study at least one unit that is not by distance or online learning in each study period (Standard 8.20 of the National Code), with the exception of the last unit of their course.
For ELICOS providers, ELICOS courses must return to a minimum of 20 hours face-to-face scheduled course contact per week (Standard P1.1 of the ELICOS Standards 2018).
How should providers return to compliance?
Noting that TEQSA announced its expectations in October 2022, we expect that all providers delivering courses under the ESOS Legislative Framework will have already commenced detailed planning for a return to compliance by 30 June 2023.
TEQSA’s primary interest is seeing providers demonstrate good practice surrounding governance and decision-making in any changes that occur. TEQSA expects providers to make their own assessments of risk and demonstrate effective self-assurance in planning and implementing a return to compliance. Specifically, TEQSA expects providers to:
- develop transition plans that identify, assess, and monitor risks for impacted student cohorts
- engage in robust self-assurance processes, accountable to academic and corporate governing bodies, to ensure these plans are appropriate, rigorous, transparent, fair and will achieve a return to compliance by 30 June 2023
- ensure that planning, decision-making and communication to students associated with the return to compliance is recorded and auditable by TEQSA
Providers should expect that TEQSA may request information about their return to compliance, including transition plans, records relating to decision-making and communication with students. This may occur as part of our routine regulatory assessments, or be based on concerns TEQSA has otherwise identified, including student complaints.
What does ‘safe and practical’ mean?
TEQSA expects providers to take a mature and considered approach in determining what is ‘safe and practical’ for different student cohorts and to support the safety of their students during this transition. These determinations need to be evidence-based, well-reasoned and auditable. Where relevant, these decisions must also be consistent with Section 2.3 (Wellbeing and Safety) of the Higher Education Standards Framework (2021).
Matters of convenience to the student or the provider, and broader market imperatives for the provider, are not relevant to considerations of whether the return to compliance is ‘safe and practical’.
What if we are unable to be fully compliant by 30 June 2023?
If a provider identifies it will not be able to fully return to compliance by 30 June 2023, TEQSA expects the provider to submit a material change notification, setting out the reasons, management of the impacts to students, and specific plans and timelines for a return to compliance. This will then inform further discussions with TEQSA.
TEQSA will determine an appropriate and risk-based regulatory response that takes into account the period during which regulatory flexibility applied, the particular circumstances of the provider, and the best interests of affected overseas students.
Does the ‘return to compliance’ apply to overseas students who have been studying fully online over the past couple of years?
The ESOS Framework applies delivery of courses to overseas students who hold an Australian student visa. This includes courses delivered to overseas students who hold an Australian student visa but who are currently offshore.
TEQSA expects providers to directly engage with these students to ensure they can make an informed decision about whether to transition to studying in Australia in compliance with the ESOS Framework, or to change their study status to ‘offshore’. TEQSA expects that providers will ensure their decisions in this respect are appropriately recorded in PRISMS. Providers should communicate with student visa holders about the possible implications for their student visa should they choose not to study onshore in Australia after 30 June 2023.
Providers may continue to deliver courses online and offshore to students who do not hold an Australian student visa as the ESOS Framework does not apply to these courses.
For some current students who will finish their degree in 2023 or 2024, a large proportion of their study will have been online. How can my provider be compliant for these cohorts?
TEQSA’s expects that, from 30 June 2023, providers ensure the delivery of courses and study undertaken by overseas student complies with all requirements of the National Code and the ELICOS Standards. Accordingly, the National Code requirements must be met for any remaining period of a student’s enrolment after 30 June 2023.
Some students are studying offshore and online and hold an Australian student visa, but do not want to travel to Australia. Can an exemption be applied for these students?
TEQSA understands that some student visa holders studying offshore may no longer wish to travel to Australia to complete their studies and may change their enrolment status to offshore and online. TEQSA expects that providers will ensure its decisions in this respect are appropriately recorded in PRISMS. Providers should communicate with student visa holders about the possible implications for their student visa should they choose not to study in Australia after 30 June 2023.
Some students studying offshore and online who hold an Australian student visa will have only one unit left to finish their degree by 30 June 2023. Is it practical to expect them to return to Australia?
TEQSA notes the purpose of an Australian student visa is to study in Australia. Australian borders opened to student visa holders regardless of vaccination status in July 2022, and TEQSA announced the return to compliance in October 2022. Given this context, we expect providers to be continuing to encourage all overseas students holding student visas to begin (or resume) studying in Australia at the earliest opportunity.
For some students who are part way through their course this may involve travelling to Australia earlier than June 2023. Some students may decide it is not practical to complete the remainder of their studies in Australia and may choose to transition their enrolment to complete the remainder of their studies online and offshore after June 2023. TEQSA expects that providers will ensure its decisions in this respect are appropriately recorded in PRISMS. TEQSA also expects providers to make reasonable, evidence-based and auditable decisions, and to provide clear advice to affected students. Providers should communicate with these students about the possible implications for their student visa should they choose not to study in Australia after 30 June 2023.
TEQSA also notes the following exception in Standard 8.20 of the National Code.
A registered provider must ensure that in each compulsory study period for a course, the overseas student is studying at least one unit that is not by distance or online learning, unless the student is completing the last unit of their course.
Some students are unable to leave their home country. What should we do in this instance?
TEQSA recognises that some students may be currently unable to leave their home country, or that the circumstances in a student’s home country may change after they enrol as an overseas student that prevents them from travelling to Australia. Providers should engage with these students to determine the most appropriate course of action. This may include students choosing to defer their studies, or deciding to transition their enrolment status to study online and offshore. TEQSA expects that providers will ensure its decisions in this respect are appropriately recorded in PRISMS. TEQSA expects providers to make reasonable, evidence-based and auditable decisions and to provide clear advice to affected students.
We have already begun our marketing campaigns and distributed materials. Can we have a grace period or an extension?
TEQSA will not grant any extension to the due date for the return to compliance. TEQSA announced its expectations on 19 October 2022, affording providers more than eight months to prepare and plan for a return to compliance by 30 June 2023. We note also that Australian borders have been open to student visa holders regardless of their vaccination status since July 2022.
TEQSA expects providers to set clear expectations for all current and prospective students. Providers are responsible for ensuring any marketing materials or recruitment activities that reference the arrangements afforded by TEQSA’s regulatory flexibility clearly stipulate that these are temporary and will shortly cease. Any references to overseas students’ ability to study offshore and obtain post-study work rights must stipulate that these arrangements are temporary and will cease on 30 June 2023.
My institution’s business model changed during the pandemic to incorporate online delivery. Can regulatory flexibility continue?
TEQSA’s approach reflects the current provisions set out in the ESOS Framework and ELICOS Standards.
TEQSA understands that the Department of Education is contemplating recommendations to government on regulatory reform in relation to the definition of modes of delivery, and restrictions on online and distance learning under the National Code and ELICOS Standards 2018.
TEQSA will work closely with the Department to understand the impact any amendments may have on its regulatory approach once those changes are proposed and a timeframe for implementation is set out. However, it is still expected that providers return to compliance by 30 June 2023.
Are students flying from China, Hong Kong and Macau still required to show evidence of a negative pre-departure test for COVID-19?
Australia’s pre-departure COVID-19 testing requirements for passengers arriving from China, Hong Kong and Macau ceased to apply on 11 March 2023.