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Monash ESOS Compliance Manual

A INTRODUCTION

This manual outlines steps to be followed by Monash University organisational units in order to comply with the legislative requirements of the ESOS Act 2000, the associated National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 (National Code 2007), the Education Services for Overseas Students Act 2000 (Assurance Fund Contributions Act 2000), the Education Services for Overseas Students Act 2000 (Registration Charges) Act 1997 and the ESOS Regulations 2001.

What is the purpose of this manual?

Non-compliance with the ESOS Act can have serious consequences for the University. A breach of the obligations contained in the ESOS Act will expose the University (including the Chief Executive Officer) to penalty provisions. These provisions range from the imposition of fines, through suspension of courses to cancellation of registration to imprisonment. Non-compliance with the ESOS Act could lead to loss of reputation for the University, with a resulting impact on the operations of the University.

This manual sets out the rules, procedures and obligations of Monash staff concerning ESOS compliance. This manual is designed to provide information for both:

new staff members unfamiliar with the requirements of the Act and Code
existing staff members wanting to refresh their knowledge or wanting to check procedures in a particular area.

Why was the ESOS Act 2000 introduced?

The ESOS Act 2000 was introduced by the Government as a response to serious concerns about the effectiveness of the then existing ESOS Act to protect overseas students from institution collapses and fraudulent behaviour by individuals. The ESOS Act 2000 was passed in parallel with a major change to the Migration Act 1958 and the Migration Regulations 1994 which governs student visas.

The 2000 Act strengthened the accreditation and monitoring processes of both the State and Federal authorities, gave power to the Federal authorities (DEEWR) to act on its own accord when fraud etc is suspected and where the State authority has not acted. It also introduced a National Code of Practice for registration authorities and providers. The Code has the force of law and breaches of it can lead to prosecution.

The legislation aims at improving the accountability of providers through the provision of approved courses, services and facilities and to ensure students complete their course in the minimum time.

The ESOS Act requires of all education and training providers of courses offered to international students studying in Australia on a student visa to:

Register on CRICOS
Meet quality assurance standards
Comply with tuition and financial assurance requirements
Meet the obligations of registered providers
Report students who do not comply with student visa conditions.

The obligations contained in ESOS are found in the following sources:

ESOS commitment

Monash University acknowledges that the ESOS Act 2000, the National Code of Practice 2007, the ESOS Regulations 2001 and the student related provisions of the Migration Act 1958 are directed towards protecting the interests of the international education sector in Australia. The act, regulations and code, in specifying the registration requirements and obligations of higher education providers in Australia, are designed to ensure students receive the tuition and education quality assurance for which they have paid.

Monash University is committed to achieving full compliance with the ESOS legislative requirements. An active compliance program supports this commitment across all faculties and work units of the University.

Student Administration is charged with the primary responsibility for coordinating and overseeing the ESOS compliance program. The University as a whole and faculties in particular are responsible for ensuring the program is appropriately applied and resourced. Compliance, and the related commitment to continuous improvement, extends to identification of anomalies in the legislation and reference of such anomalies to the department or to representative bodies, such as Universities Australia, for clarification or amendment.

Student Administration strives to provide clear and consistent support and advice to the Monash community concerning its ESOS obligations and compliance mechanisms. Through legal and ethical action and consistent with available resources, it aims to achieve total ESOS compliance.

It should be understood that the ESOS Act places responsibility on the University not only for its own actions but also for the actions of third parties. Providers are responsible under the Act for the actions of agents and associates and this includes their "commercial arms" and "partners."

Responsibilities

Staff

All staff have a responsibility to ensure that their activities on behalf of the University, and those of their colleagues, comply with the ESOS Act. All staff are required to:

Comply with all relevant legislation
Familiarise themselves with University policies concerning compliance with specific areas of legislation that affect their workplace and activities
Report perceived breaches, risks, incidents and complaints
Refer to the ESOS manual or consult with the ESOS Compliance Manager before they act if they are uncertain as to what is legally compliant behaviour in a given situation
Implement the practices learned in training provided by the University on ESOS matters
Make use of faculty/administrative unit ESOS compliance officers.

The role of the faculty/work unit ESOS compliance officers is to:

Monitor ESOS compliance within the faculty and bring to the attention of the ESOS compliance manager any ESOS concerns, complaints or breaches
Represent the faculty on the university-wide ESOS Advisory Group
Keep a record of staff requiring training in their faculty and arrange for this training on a faculty basis or as part of university-wide training
Co-ordinate the annual sign off of faculty ESOS compliance
Ensure that the key ESOS compliance obligations of the faculty/work unit are being met
Communicate any significant ESOS developments to relevant staff .

Legal compliance officer

The University ESOS Compliance Officer[1], with reference to Australian Standard AS3806 ‘Compliance Programs' and using it as a benchmark for developing the ESOS Compliance Program, is expected to establish, maintain and continuously improve the program. Key duties include:

Promoting an ethical and positive compliance culture in relation to the law.
Communicating to those in the University expected to comply with the law or a related University policy the existence and behavioural requirements of the law or policy.
Identifying legal compliance risks for organisation-wide structures, systems and processes and facilitating the identification, assessment and management of risks at the level of cost centres.
The provision of generic policies, procedures, education and training to guide the behaviour of staff, and where appropriate, students and others.
Facilitating the development of specific and targeted policies, procedures, education and training at the cost centre level.
Monitoring compliance with the law and related University policies and procedures throughout the organisation.
Reporting on a biannual basis to Council via the Audit Committee on breaches, non-compliance risks and complaints and related actions undertaken or proposed.
Reporting on an annual basis to Council via the Audit Committee on proposed improvements to the compliance program to more closely align it with best practice as defined by AS3806.

Monitoring and reporting

Student Administration through the university compliance reporting process, presents its ESOS Risk Register to the University Audit and Risk Management Office. This ESOS register identifies alleged breaches and risks of non-compliance and outlines plans to remedy breaches and prevent their recurrence. The register also sets out strategies and controls in place, or being developed, to better manage compliance risks..

Complaints

Any staff member with a complaint about the University's compliance with the ESOS Act should contact the ESOS Compliance Manager to register his/her complaint.

The manager will attempt to resolve the complaint through direct communication with the party involved - either immediately or by a staff member to whom the complaint is referred. The complaint may be referred to the appropriate academic or administrative area for resolution.

If a written complaint is lodged, it should include:

Name and address of person lodging complaint
Outline of the issue.

The complaint will be acknowledged within 48 hours of receipt. The acknowledgement will:

Inform the complainant that an investigation will be conducted
And that a response will be received no later than 28 days after the complaint has been received.

The ESOS compliance manager will:

Refer the complaint if appropriate
Ensure that investigation of the complaint is commenced
Ensure that a response to the complaint is sent within 28 days of the complaint date.

Compliance certification

The compliance certification process is as follows:

ESOS certification for Monash annual report to Parliament in first fortnight of December
Statement of annual compliance with ESOS Act 30 November for Audit and Risk Management
Biannual Risk register to Audit and Risk Management in March and September
Compliance checklist sent to relevant organisational units in May and September of each year.

[1] Legal compliance officer for ESOS is the Director, Student Administration. Aspects of responsibility for ESOS compliance have been delegated to the Manager, ESOS and Visa Compliance based in Student Administration.

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