How Australia decides a provider is no longer 'fit and proper' in 2026

Under section 7A of the Education Services for Overseas Students Act 2000 (ESOS Act), a provider stops being "fit and proper" when the ESOS agency for that provider is no longer satisfied that it is fit and proper to be registered. The test is not one single red flag. Subsection 7A(2) sets out a list of matters the decision-maker must have regard to: current investigations for certain offences, any past conviction, past cancellation or suspension of registration, an Immigration Minister's suspension certificate, registration conditions, bankruptcy and insolvency steps, disqualification from managing corporations, involvement in another provider's business at the relevant time, ownership or control links with an education agent, anything specified by the Minister in a legislative instrument, and any other relevant matter. As at the 2 September 2026 official text published on the Federal Register of Legislation, this is the framework an adviser should walk a client through.

Who makes the decision, and what standard applies?

Section 7A(1) contemplates three decision points. The ESOS agency for a provider may have to decide whether it is satisfied — or is no longer satisfied — that the provider is fit and proper to be registered. It may instead have to decide whether it believes on reasonable grounds that the provider is not fit and proper. And for a provider that is an approved school provider in a State, the designated State authority may have to decide whether it is satisfied the provider is fit and proper.

The distinction matters in practice. "No longer satisfied" is the standard that drives the automatic suspension in section 89. "Believes on reasonable grounds" is the standard that appears in the sanctions power in section 83(1B). Either way, the same list in subsection 7A(2) guides the assessment.

What must the decision-maker consider?

Matter	What the Act asks the decision-maker to look at
Current investigations	Whether the provider or a related person is being investigated for an offence covered by subsection 7A(2AA)
Convictions	Whether the provider or a related person has ever been convicted of an offence
ESOS registration history	Whether registration has ever been cancelled or suspended under this Act or the old ESOS Act
Immigration Minister's suspension certificate	Whether the provider or a related person has ever been issued one
Registration conditions	Whether a condition has ever been imposed under this Act on the provider's or a related person's registration
Bankruptcy and insolvency	Whether the provider or a related person has ever become bankrupt, taken steps to take the benefit of a law for the relief of bankrupt or insolvent debtors, compounded with creditors, or assigned remuneration for the benefit of creditors
Corporate disqualification	Whether the provider or a related person has ever been disqualified from managing corporations under Part 2D.6 of the Corporations Act 2001
Involvement elsewhere	Whether the provider or a related person was involved in the course business of another provider covered by any of the above paragraphs, at the time of the events that gave rise to the relevant conviction or other action
Education agent ownership or control	Whether the provider or an associate owns or controls an education agent, directly or indirectly, and the value or extent of that interest; and whether an agent or its associate owns or controls the provider, and to what extent
Minister's instrument	Any matters specified by the Minister in a legislative instrument under subsection 7A(2A)
Anything else	Any other relevant matter

Two features of this list are worth pointing out to clients. First, several items are framed as "has ever been" — the history is not limited to a recent window. Second, the list ends with "any other relevant matter", so it is a minimum, not a ceiling.

Which investigations count before there is any conviction?

Subsection 7A(2)(aa) makes an ongoing investigation a mandatory consideration in its own right, and subsection 7A(2AA) limits the offences to four categories: an offence under the ESOS Act; an offence under Division 270 or 271 of the Criminal Code; an offence under section 590 of the Corporations Act 2001; and an offence specified in a legislative instrument made by the Minister for that purpose. The test is triggered by the existence of an investigation for one of those offences, not by a charge or a conviction.

Whose history is examined — who is a "related person"?

The list refers repeatedly to "a related person of the provider". Subsection 7A(3) defines that as an associate of the provider who has been, is, or will be involved in the business of providing courses, or a high managerial agent of the provider. Separately, paragraph 7A(2)(g) captures involvement in the course business of another provider that is covered by any of the above paragraphs, at the time of the events that gave rise to the relevant conviction or other action — so a person's record at a different institution can still be in scope.

In other words, the enquiry reaches past the corporate entity to the people who run it and to what those people did while running a different one.

How do spent convictions fit in?

Subsection 7A(4) states that nothing in subsection (2) affects the operation of Part VIIC of the Crimes Act 1914, which deals with spent convictions. Subsection 7A(5) adds a related mechanism: if the Minister determines that an entity is an ESOS agency under subsection 6C(2) or (3), and that entity is not otherwise a Commonwealth authority within the meaning of section 85ZL of the Crimes Act 1914, it is taken to be a Commonwealth authority for the purposes of Part VIIC. That pairing is what allows a non-Commonwealth body acting as an ESOS agency to receive spent conviction material on the same footing.

Why is education agent ownership on the list?

Paragraphs 7A(2)(gaa) and (gab) look at ownership or control in both directions: the provider or an associate holding a direct or indirect interest in an education agent, and an education agent or its associate holding a direct or indirect interest in the provider. In each case the decision-maker considers the value or extent of that ownership or control. Paragraph (ga) then brings in any matters the Minister specifies in a legislative instrument under subsection 7A(2A), so the detail can be expanded without amending the Act. For a client, the practical takeaway is that commercial links between a provider and the agents recruiting for it are a standing part of the fitness assessment, not an unrelated business matter.

What happens once a provider is no longer fit and proper?

Section 89 makes suspension automatic rather than discretionary. If the ESOS agency for a registered provider (other than an exempt provider) is no longer satisfied that the provider is fit and proper, the provider's registration is suspended for all courses for all locations by force of subsection 89(1). Where the trigger is a designated State authority telling the ESOS agency that it is no longer satisfied, and the provider is an approved school provider in that State, subsection 89(2) suspends registration for all courses for all locations in the State. Section 95 sets out the effect of that suspension.

The ESOS agency must then notify the provider of the suspension in writing, and may notify another ESOS agency for the provider where it considers that appropriate. A suspension is not necessarily permanent: if the agency becomes satisfied again, or the State authority tells the agency it has become satisfied again, the agency may give the provider a notice under subsection 89(4), and the suspension is removed by force of subsection 89(5) once the provider has paid the associated reinstatement fee. The amount of that fee is dealt with in section 171.

How is this different from sanctions for non-compliance?

Section 83 is a separate, discretionary power. The ESOS agency may act if it believes on reasonable grounds that the provider, or an associate or high managerial agent, is breaching or has breached the Act, the national code, the ELICOS Standards or Foundation Program Standards where they apply, or a condition of registration. It may also act where, because of financial difficulty or any other reason, the provider might not be able to provide courses to accepted students or to refund amounts under Division 2 of Part 5 — and in that financial case it must consider any relevant recommendation made by the TPS Director under paragraph 54B(fa).

Section 83(1B) is the bridge to the fit and proper test: the agency may act against a provider other than an exempt provider where it believes on reasonable grounds that the provider is not fit and proper, and must have regard to the subsection 7A(2) matters in forming that belief. Other grounds include the provider not having the principal purpose of providing education, not having clearly demonstrated capacity to provide education of a satisfactory standard, or not providing education of a satisfactory standard. The available actions are to impose one or more conditions on registration (section 86), to suspend registration for specified courses or locations (section 95), or to cancel registration for specified courses or locations. Under subsection 83(4), action can be taken against registration for a particular course even where the conduct or situation behind it does not relate to that course.

So the two pathways differ in scope and consequence: a section 83 sanction can be narrowed to particular courses and locations, whereas a section 89 suspension follows from the fit and proper finding itself and applies across the board.

Does one bad item decide the outcome?

The Act frames fitness as an assessment, not a checklist with a pass mark. Subsection 7A(2) requires the decision-maker to have regard to each listed matter, and paragraph (h) expressly allows any other relevant matter to be weighed. A historical item such as a conviction or a bankruptcy is therefore a factor to be considered, alongside whatever else is relevant — it is not, on the face of the Act, an automatic disqualification. What is automatic is the consequence under section 89 once the decision-maker actually reaches the conclusion that it is no longer satisfied.

This article describes how the Act frames the test and is general information only; it is not advice about any particular provider, registration or enrolment, and the official text as currently published on the Federal Register of Legislation remains the reference for anyone applying it to a specific situation.

Frequently Asked Questions

Does a past conviction automatically end a provider's registration?

No. Subsection 7A(2)(a) makes any past conviction of the provider or a related person a matter the decision-maker must consider, but the finding itself is a separate judgement that also weighs every other listed matter and anything else relevant. Registration is suspended automatically under section 89 only once the ESOS agency is no longer satisfied that the provider is fit and proper.

Can bankruptcy alone put a provider's registration at risk?

Bankruptcy is one of four insolvency-related items in paragraph 7A(2)(e), alongside taking steps under bankruptcy or insolvency relief laws, compounding with creditors, and assigning remuneration for the benefit of creditors. Each is a mandatory consideration rather than a self-executing outcome, and it is assessed together with the rest of the subsection 7A(2) list.

Who besides the provider itself is covered by the test?

Subsection 7A(3) defines a related person as an associate of the provider who has been, is, or will be involved in the business of providing courses, or a high managerial agent of the provider. Paragraph 7A(2)(g) also reaches involvement in the course business of another provider that is covered by any of the above paragraphs, at the time of the events that gave rise to the relevant conviction or action.

Are spent convictions taken into account?

Subsection 7A(4) preserves the operation of Part VIIC of the Crimes Act 1914, which deals with spent convictions. Subsection 7A(5) provides that certain entities determined to be an ESOS agency are taken to be a Commonwealth authority for Part VIIC purposes, so the spent convictions regime applies to them as well.

What happens immediately after a fit and proper finding goes against a provider?

Subsection 89(1) suspends the provider's registration for all courses for all locations by force of the subsection, and subsection 89(3) requires the ESOS agency to notify the provider in writing. Where the trigger comes from a designated State authority for an approved school provider, subsection 89(2) suspends registration for all courses for all locations in that State.

Can an automatic suspension be lifted?

Yes. Under subsection 89(4), if the ESOS agency becomes satisfied the provider is fit and proper again — or the designated State authority tells the agency it has become satisfied again — the agency may give the provider a notice to that effect. Under subsection 89(5), the suspension is then removed by force of the subsection once the provider has paid the associated reinstatement fee, the amount of which is dealt with in section 171.

Do education agent ownership links affect the assessment?

Yes. Paragraphs 7A(2)(gaa) and (gab) require consideration of ownership or control running in either direction between a provider and an education agent, including through associates and including indirect interests, together with the value or extent of that ownership or control. Paragraph (ga) adds any matters specified by the Minister in a legislative instrument under subsection 7A(2A).

Is a breach of the national code the same as failing the fit and proper test?

They are separate grounds. Section 83(1) allows sanctions where the agency believes on reasonable grounds that the provider, or an associate or high managerial agent, is breaching or has breached the Act, the national code, the ELICOS Standards or Foundation Program Standards where applicable, or a condition of registration. Section 83(1B) separately allows action where the agency believes on reasonable grounds the provider is not fit and proper, and requires regard to the subsection 7A(2) matters.

Can a sanction be limited to one course?

Yes. Under subsection 83(3), the agency may impose conditions on registration generally or in respect of specified courses and locations, suspend registration for specified courses and locations, or cancel registration for specified courses and locations. Subsection 83(4) confirms action can be taken against registration for a particular course even if the underlying conduct or situation does not relate to that course.