What legally counts as 'tuition fees' in Australia when a refund is due in 2026?
In Australian law, "tuition fees" are not simply whatever a school invoices you. Under section 7 of the Education Services for Overseas Students Act 2000 (ESOS Act), the term means fees a provider receives — directly or indirectly — from an overseas student, an intending overseas student, or another person who pays on that student's behalf, where the fees are directly related to the provision of a course the provider is providing, or offering to provide, to the student. This is the definition published in the official text of the Act on the Federal Register of Legislation. That definition is the gatekeeper: it decides which of your payments fall inside the refund machinery of the Act, and which sit outside it. What follows is general information about how the provision is written, not personalised advice about your enrolment or your refund claim — for an actual dispute, rely on the current official text and on a professional who can look at your documents.
What does section 7 of the ESOS Act actually say?
Section 7 is a definition provision, and it does three things at once. It sets the positive test, then it expressly allows the regulations to widen or narrow that test.
| Part of s 7 | What it does |
|---|---|
| s 7(a) | Sets the core meaning: fees a provider receives, directly or indirectly, from the student, an intending student, or someone paying on their behalf, that are directly related to the provision of a course the provider is providing or offering to provide |
| s 7(b) | Without limiting (a), includes any classes of fees prescribed by the regulations |
| s 7(c) | Without limiting (a), excludes any classes of fees prescribed by the regulations |
Two words do most of the work in the core test: receives and directly related. Both have to be satisfied. A payment can be plainly connected to your course and still fall outside if it never reaches the provider, and money can reach the provider and still fall outside if its connection is to something other than delivering the course to you.
Does it matter who actually paid the money?
No, and the Act is unusually explicit about this. Section 7(a)(i) covers fees from an overseas student or an intending overseas student, and s 7(a)(ii) separately covers "another person who pays the fees on behalf of" that student. The phrase "receives, directly or indirectly" covers the situation where the funds take a route before landing with the provider.
Assume an applicant whose relative transfers the money straight to the provider from an overseas account, and another applicant whose fees are routed through a third party that then settles with the provider. Under s 7, the source of the funds and the number of hops are not what makes the payment tuition fees. What matters is that the provider received it, and that it is directly related to providing the course to that student.
The same reasoning cuts the other way. Money handed to someone who is not the provider for a purpose that is not the course — for example an unrelated service bought separately — is not caught by s 7(a) just because it was paid around the same time as your fees. Section 7 is about what the provider receives in connection with the course, not about the total cost of your move to Australia.
What does "directly related to the provision of a course" test?
It tests the link between the payment and the delivery of a specific course to a specific student. Three details in the wording are worth holding on to:
- The course must be one the provider is providing or offering to provide. The definition covers the stage where a course is merely offered, so a payment made before teaching begins can still be tuition fees. You do not need to have started classes.
- The student must be an overseas student or an intending overseas student. The definition is written for people in that position, not for domestic enrolments generally.
- The relationship is to provision, not to attendance outcomes. The test attaches to the provider's act of providing or offering to provide the course.
Because the test is a relationship test rather than a list, borderline items are decided by asking a single question: is this money the provider charging for providing this course to this student? If the honest answer is that the payment buys something else, it is not tuition fees under s 7(a) — unless the regulations bring it in under s 7(b).
Can the regulations add or remove fee categories?
Yes, and this is the part most summaries skip. Section 7(b) says that, without limiting paragraph (a), the definition includes any classes of fees prescribed by the regulations for the purposes of that paragraph. Section 7(c) says that, without limiting paragraph (a), it excludes any classes of fees prescribed by the regulations for the purposes of that paragraph.
Three consequences follow. First, the definition is not frozen at what s 7(a) catches: the regulations can add classes of fees in, and carve classes of fees out. Second, the regulations can only operate alongside s 7(a), not by rewriting it — the core test stays. Third, the Act text alone will not tell you the current list, because the list lives in a separate instrument. Anyone working out whether a particular charge counts has to read s 7 together with the regulations as currently in force, and treat the official, most recent text as the authority; older summaries may not reflect a class of fees that has since been prescribed in or out.
Why does this definition decide the size of a refund?
Because the Act's refund obligations operate on "tuition fees" as defined. The guide to the Act in section 7B states that there are obligations on registered providers when the provider or an overseas student of the provider defaults and does not start or finish a course, and that the provider is required to provide a refund to the student.
Section 7 does not itself set the refund amount or the formula. It sets the perimeter: only amounts that meet the definition are treated as tuition fees for the purposes of those obligations, so a payment that fails the definition is not part of the refundable pool, while a payment that meets it is inside the perimeter even if it arrived indirectly or from someone else.
Two adjacent points from the same guide are relevant to how a default ends up being resolved:
- Provider default. Instead of refunding, the provider may provide an alternative course for the student at the provider's expense.
- Provider does not discharge its obligations. The TPS Director must provide the student with options for suitable alternative courses, if any such courses are available. In the case of a default, a call is made on the Overseas Students Tuition Fund to pay for alternative courses, or to provide refunds to students, if providers have not already done so.
The same guide also notes that the Act, the national code, the ELICOS Standards and the Foundation Program Standards impose obligations on registered providers, including obligations relating to record keeping and financial requirements — which is why the paper trail of what you paid, to whom, and for which course is worth keeping.
How to test your own payments against section 7
Work through the payments one at a time rather than as a lump sum:
- Who received it? The definition turns on fees a provider receives.
- Who paid it, and how? Directly or indirectly; from you, or from another person on your behalf — all are covered.
- What was it for? It must be directly related to the provision of the course the provider is providing or offering to provide to you.
- Had the course started? Not required — "offering to provide" is enough.
- Check the regulations. A class of fees may have been prescribed in under s 7(b) or out under s 7(c).
- Then ask whether a default occurred. The refund obligations described in s 7B arise where the provider or the student defaults and the course is not started or finished.
Frequently Asked Questions
Does it matter that my parents paid my fees instead of me?
No. Section 7(a)(ii) expressly covers fees received from "another person who pays the fees on behalf of" an overseas student or intending overseas student, and s 7(a) covers receipt that is direct or indirect. The payer's identity does not take a payment out of the definition.
Are fees I paid before my course started still tuition fees?
Yes, potentially. The definition refers to a course the provider "is providing, or offering to provide" to the student, so the pre-commencement stage is within scope. The key remains whether the payment is directly related to the provision of that course.
Does section 7 list every fee that counts?
No. Section 7(a) gives the core test, while s 7(b) and s 7(c) allow the regulations to include or exclude classes of fees. That means the categories can change, and the answer for a particular charge depends on the regulations currently in force as well as on the Act.
Does the definition cover money paid to an agent?
Only if the provider received it and it was directly related to providing the course to you. Section 7 is framed around fees a provider receives, directly or indirectly; a payment for an unrelated service that never reaches the provider in connection with your course is not tuition fees under s 7(a).
Is a refund always paid in cash when a provider defaults?
Not necessarily. Under the section 7B guide, for a provider default the provider may instead provide an alternative course for the student at the provider's expense, and where a defaulted provider does not discharge its obligations, the TPS Director must provide options for suitable alternative courses if any are available. A call may be made on the Overseas Students Tuition Fund to pay for alternative courses or to provide refunds where providers have not already done so.
Does section 7 tell me how much I will get back?
No. Section 7 defines what counts as tuition fees; it does not set refund amounts or formulas. The refund obligation itself is described in the section 7B guide as arising where the provider or the student defaults and the student does not start or finish the course.
What should I keep if I think a refund is owed?
Keep evidence of who received each payment, who paid it, which course and study period it related to, and when it was paid. The section 7B guide notes that the Act and the national code impose record-keeping and financial obligations on registered providers, and those records are what a section 7 analysis is tested against.