Provider default notices: the evidence checklist for agents in 2026

A provider default notice under section 46B of the Education Services for Overseas Students Act 2000 (ESOS Act) has to do three things at once: set out the circumstances of the default, list the details of the students affected, and state whether — and if appropriate how — the provider intends to discharge its obligations to those students under section 46D. That checklist comes from the Act as published on the Federal Register of Legislation (sections 45, 46A, 46B and 29), as at the September 2026 official page. This article describes the general framework and how an education agent can read such a notice as evidence; it is general information only, not personalised advice about any individual matter, and the current text of the Act together with any ministerial legislative instrument remains the controlling source.

What exactly must a provider default notice contain?

Section 46B(3) sets three mandatory contents, and section 46B(5)–(6) adds a fourth layer that sits outside the Act itself: any notice must comply with requirements specified in a legislative instrument the Minister may make. In practice this means the statutory three are the floor, not the ceiling — a notice can be complete for the Act's purposes and still fail a form requirement imposed later, so the current instrument should always be checked against the notice received.

Notice element	What the Act requires	What it gives an agent
Circumstances of the default (s 46B(3)(a))	The facts of what happened	A dated, written account of the trigger: failure to start, cessation mid-course, or a Part 6 sanction
Details of the students (s 46B(3)(b))	The students in relation to whom the provider has defaulted	The link between a named student and the specific course at the specific location
Advice on section 46D obligations (s 46B(3)(c))	Whether the provider intends to discharge those obligations, and if appropriate how	An early signal of whether the provider is heading toward refund or toward an alternative course at its own expense

The third element is the one most often reduced to a sentence. Read it closely: the Act asks two questions, not one — intention, and then the method. "We will meet our obligations" without the "how" leaves the agent without the information that determines which stage of the ESOS framework the student moves to next.

When does a provider default — and when does it not?

Section 46A(1) defines default by two triggers plus one condition. The trigger is either that the provider fails to start providing the course at the location on the agreed starting day, or that the course ceases to be provided at that location after it starts but before it is completed. The condition is that the student has not withdrawn before the default day.

Two carve-outs matter for evidence. First, section 46A(2) removes doubt: a provider defaults if it is prevented from providing a course at a location because a sanction has been imposed on it under Part 6. A closure driven by regulatory action is still a default. Second, section 46A(3) says a provider does not default where the failure to start or the cessation happens because the student defaults in relation to the course under paragraph 47A(1)(c). The distinction turns on causation, so the "circumstances of the default" element is where an agent should look for the reason the provider itself gives.

Section 46A(4)–(5) covers a quieter scenario: where the registered provider for a course at a location has changed to become an entity of a different kind, the ESOS agency may notify the provider in writing that the course is not taken to have ceased merely because of the change. In deciding whether to give that notice, the agency must have regard to the effect of the change on course delivery and student outcomes, any advice from another ESOS agency, and — for an approved school provider — any advice of the State designated authority.

Who has to be told, and how quickly?

Two audiences, and the Act treats them differently.

Under section 46B(2), the provider must notify in writing, its ESOS agency and the TPS Director of the default within 3 business days of the default occurring. "Business day" takes its meaning from section 2B of the Acts Interpretation Act 1901, which is worth remembering when a closure lands near a public holiday and the calendar days and business days diverge.

Under section 46B(4), the provider must also notify, in writing, the students in relation to whom it has defaulted. The provision does not attach its own separate deadline to that student notice, so the 3-business-day clock should be read as the one the Act states expressly, for the ESOS agency and the TPS Director.

Section 46B(1) carries a note: if a provider breaches the section, the ESOS agency may take action against the provider under Division 1 of Part 6. That is the enforcement hook, and it belongs to the agency rather than to the agent.

What if the notice never arrives, or arrives thin?

The duty sits on the provider, and other records exist independently of it. Section 29 requires a registered provider that receives tuition fees for a course before the student has begun it to pay those fees to the credit of an account maintained under section 28, within 5 business days of receiving them. It must then keep a sufficient "protected amount" standing to the credit of that account to repay all tuition fees to every student who has paid and has not yet begun. Withdrawals that would drop the balance below the protected amount are permitted only for a narrow set of purposes: a refund under section 46D, 47D or 47E; payment to an alternative provider where the provider has arranged an alternative course at its own expense under section 46D; or payment to the TPS Director under section 50C. The protected amount is also expressly not available to pay a provider's creditors, and is not liable to be attached or taken in execution at the instance of a creditor.

The absence of a notice also does not remove a student from the framework described in the section 45 guide. That guide sets out the ladder: Division 2 imposes the refund obligation on registered providers, with the option of instead providing alternative courses at the provider's own expense; Division 3 requires the TPS Director to provide a student with options for suitable alternative courses (if any such courses are available) where a provider defaults and fails to discharge its Division 2 obligations; Division 4 allows payments out of the Overseas Students Tuition Fund to refund students and to reimburse providers who provide alternative courses — described as making a call on the OSTF.

How does the notice feed into a student's remediation file?

Each of the three elements does different work in a file.

The circumstances element fixes the default day and the trigger. A default is defined "in relation to an overseas student or intending overseas student and a course at a location", so the trigger is always tied to a particular course at a particular location — which is why a notice that only names the institution is weaker than one that names the campus and course.

The student details element fixes who is covered. Because the definition requires that the student has not withdrawn before the default day, the list in the notice also implicitly records who the provider treats as still enrolled.

The section 46D advice element fixes the direction of travel. An intention to offer an alternative course points to Division 2; silence, or an intention the provider does not then carry out, is what opens the TPS Director step under Division 3.

Suppose an applicant is two terms into a course that stops being delivered at its campus. The notice the provider issues should record that the course ceased to be provided after it started and before completion, name the applicant among the affected students, and say whether the provider will arrange an alternative course at its own expense or refund. Where the notice says only that the provider "is working with the regulator", the two questions the Act actually asks remain unanswered, and the file has a gap that no later correspondence fills as cleanly as the original notice would have.

That gap matters precisely because the notice is the one document the provider is legally required to produce about the event, on a stated timeline, in writing. Nothing here guarantees any particular outcome for a student: whether suitable alternative courses exist, and whether the matter ends at a provider-funded place, a TPS Director option, or a call on the OSTF, turns on the statutory steps rather than on the paperwork an agent assembles.

Frequently Asked Questions

What are the three things a provider default notice must include?

Section 46B(3) requires the circumstances of the default, the details of the students in relation to whom the provider has defaulted, and advice on whether the provider intends to discharge its obligations to those students under section 46D — plus, if appropriate, how it intends to do so. A notice must also comply with any requirements in a legislative instrument made by the Minister under section 46B(6).

How quickly must the provider notify the authorities?

The provider must notify its ESOS agency and the TPS Director in writing within 3 business days of the default occurring, under section 46B(2). "Business day" is defined in section 2B of the Acts Interpretation Act 1901.

Are affected students notified directly?

Yes. Section 46B(4) requires the provider to notify, in writing, the students in relation to whom it has defaulted. That subsection does not set out its own separate deadline, so the expressly stated 3-business-day period applies to the ESOS agency and TPS Director notice.

Does a regulatory sanction that stops teaching count as provider default?

Yes. Section 46A(2) states, to avoid doubt, that a registered provider defaults if it is prevented from providing a course at a location because a sanction has been imposed on it under Part 6. The underlying default definition in section 46A(1) still requires that the student has not withdrawn before the default day.

When is a course not being delivered not a provider default?

Section 46A(3) provides that a provider does not default where it fails to start, or the course ceases to be provided, because the student defaults in relation to the course under paragraph 47A(1)(c). Separately, under section 46A(4), where a provider has changed to become an entity of a different kind, the ESOS agency may notify that the course is not taken to have ceased merely because of that change.

Does the notice itself determine who pays — the provider, the TPS Director, or the OSTF?

Not by itself. The section 45 guide describes the sequence: Division 2 obligations on the provider (refund, or alternative courses at the provider's expense), Division 3 where the TPS Director must provide options for suitable alternative courses if any are available following an undischarged provider default, and Division 4 payments from the Overseas Students Tuition Fund, known as making a call on the OSTF.

What if the provider never issues a notice at all?

The obligation remains the provider's, and the note to section 46B(1) records that breach may lead the ESOS agency to take action under Division 1 of Part 6. Independent records also exist under section 29, which governs tuition fees received before a course begins, the protected amount held in the section 28 account, and the limited purposes for which that amount may be withdrawn.