Section 8 of the ESOS Act - Are you at risk?

Due to an increase in the number of enquiries at RTO Doctor, and to celebrate my book CRICOS CPR: Top 5 Tips to Rescue Your RTO being published, I thought it would be a great time to share an extract of some information critical to all education and training providers across Australia, regardless of whether they are registered on CRICOS (Commonwealth Register of Institutions and Courses for Overseas Students) or not.

The most common area of offences under the ESOS Act in recent times are breaches of Section 8. Now, for those unfamiliar with this section of the ESOS Act, it is reproduced below as reference:

“8 Offence: providing or promoting a course without a registered provider

1)    A person commits an offence if the person:

(a) provides a course at a location to an overseas student; or

(b) makes an offer to an overseas student or an intending overseas student to provide a course at a location to that student; or

(c) invites an overseas student or intending overseas student to undertake, or to apply to undertake, a course at a location; or

(d) holds himself, herself or itself out as able or willing to provide a course at a location to overseas students;

unless:

(e) the person is registered to provide that particular course at that particular location; or

(f) the person does so in accordance with an arrangement that the person has with a registered provider for that particular course for that particular location.

Penalty: Imprisonment for 2 years.

Note 1: This means that, if 2 or more providers jointly provide a course, then only one of the providers needs to be registered.

Note 2: However, a provider of a course who is not registered must identify the registered provider in any written material promoting the course (see section 107) and must not engage in misleading or deceptive conduct in relation to the course (see subsection 83(2)).

Note 3: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

2)    The prosecution bears a legal burden in relation to the matter in paragraph (1)(e) (despite subsection 13.3(3) of the Criminal Code).

Note: A defendant bears an evidential burden in relation to the matter in paragraph (1)(f): see subsection 13.3(3) of the Criminal Code.

Defence: surveys etc. to assess demand for a course.

3)    A person does not commit an offence under paragraph (1)(d) if:

(a) the relevant conduct was only for either or both of the following purposes:

(i) carrying out surveys or other investigations to assess the demand for the course; or

(ii) negotiating with another institution or other body or person in connection with designing or developing the course; and

(b) the person took reasonable steps to ensure that:

(i) overseas students and intending overseas students who were, or might become, interested in undertaking the course; and

(ii) any institution or other body or person who might also provide the course; were aware that:

(iii) the person was not a registered provider for the course for the location; and

(iv) the relevant conduct was not carried out in accordance with an arrangement that the person had with a registered provider for the course for the location; and

(c) the person neither invited nor accepted any amount for the course from overseas students or intending overseas students, or from the students’ (sic) agents.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code.”

One of the more common non-compliances we are seeing currently that is catastrophic for some providers is that the regulatory interpretation of what constitutes a ‘course’ has changed although there was little, and nor has there been, a very much public announcement of this fact.

Whilst PRISMS, (Provider Registration and International Student Management System), the database that is used by providers, regulators and immigration and effectively is the backbone of the CRICOS register) is not designed to cater for ‘courses’ in accordance with the current interpretation by regulators, make no mistake, there has been increased and quite significant scrutiny (some might even call it a witch hunt) on providers who are delivering ‘courses’ without being registered on CRICOS to do so or without the course being registered on CRICOS. While some providers came to us for help to get them out of this mess and we have so far been successful in achieving it, there are many other providers who just cannot afford the cost of fighting the regulatory decision and accept the notice to cancel their registration and/or cancel statements of attainment and qualifications.

While it is acknowledged that there are the occasional providers who knowingly enrol international students on a student visa and are in breach of Section 8 (they are certainly not our clients), there are increasingly more and more clients who have been impacted by this decision. Effectively, the regulator, specifically ASQA, has begun interpreting the word ‘course’ in Section 8 of the ESOS Act to mean any course of education and training under the Australian Qualifications Framework. In other words, if it is a skill set but not a full qualification, you’re in breach, if you’re delivering a single unit short course, you’re in breach of Section 8 of the ESOS Act, if you’re delivering a first aid course and you’re not CRICOS registered, you’re in breach of the ESOS Act, the same goes for short courses including, for example, RSA (Provide responsible service of alcohol) and RSG (Provide responsible gambling services).

What is fast becoming a greater risk for providers is the international student on a student visa in Australia who does not declare that they are an international student. We’ve seen a number of education providers who, during audit have produced evidence of trainer and assessor qualifications for example that were issued by a provider and yet that provider is not CRICOS registered! The stance by regulators on this issue is that it’s your responsibility to ensure that the student is telling the truth and it is your responsibility to ensure that you are not enrolling international students on a student visa. 

I recently wrote another article for LinkedIn on a related issue that outlined how 1 desktop audit unravelled an unbelievable amount of non-compliance, including exposing a non-CRICOS registered provider as offering a course to an international student on a student visa without being registered to do so on CRICOS.

So what are you waiting for? Why don't you check to see if your systems are putting you at risk? Get your copy of this MUST read from Amazon to help you make sure that your registration is not at risk.