Moores Principal Lawyer Cecelia Irvine-So discusses the emerging legal framework surrounding the increasing number of international students living in homestay arrangements. To hear more about School Law issues, Cecelia will give a seminar presentation on the topic, Challenging Situations: Problematic Parents and Discrimination at the School Law Symposium: Risks, Duties and Liabilities on 5 June. 
A New Landscape
The number of international students in Australia is gradually increasing at around 11% per year. In particular, primary and secondary schools are beginning to see a significant increase of around 14% per year. The increase in international students means that schools are often relying on homestay arrangements to accommodate students. The responsibility for these arrangements has traditionally been delegated by the school to third party providers. However, this is no longer the case with legislative changes increasing the burden on schools to ensure homestay providers are suitable and fulfil its non-delegable duty of care to international students. Realistically, with many schools reliant on international students, schools will need to readily adopt new standards, policies and procedures which ensure they are compliant with the new regulatory landscape.
Legislative Environment
International students and homestays have been a priority for legislators on both a national and state-wide level. Nationally, a new National Code for Overseas Students (National Code) commenced on 1 January 2018. Compared to the previous version, the National Code has more stringent requirements regarding the care of international students under the age of 18. Breaching the National Code could lead to civil and criminal penalties, as well as jeopardising the status of schools to provide education to international students.
In some states such as Victoria, the National Code is supported by the state-based guidelines such as the VRQA Guidelines for the Enrolment of Overseas Students Aged under 18 (Overseas Guidelines). The Overseas Guidelines places additional requirements on schools, especially in relation to homestays. Additionally, the Evidence Guide and Evidence Portfolio are very prescriptive and place high expectations on schools to have a raft of policies, agreements, procedures and training arrangements in place. Many of these have prescribed content.
Schools also owe a duty of care at common law to take reasonable care for the safety of students, such as by avoiding foreseeable risk. This is a non-delegable duty, meaning that even if the school outsources certain responsibilities such as accommodation, the duty will remain with the school. Schools also have a duty of care in relation to child protection. Schools have a duty to take “reasonable precautions” to prevent the abuse of a child by an individual associated with the organisation. This has been codified in legislation in several states.[1]
Homestays and obligations
“Homestay” is used to describe accommodation offered to international students by a host family, a couple or a single person. Where a school does not have boarding facilities, homestays are an alternative option. However, schools must keep in mind that they retain the duty of care owed to students and this has been emphasised in the new legislation.
For example, schools are required to issue a Confirmation of Appropriate Accommodation and Welfare letter (CAAW) before the Department of Immigration and Border Protection (DIBP) will issue a visa for a younger international student. This requires the school to state that it has found appropriate accommodation and welfare arrangements for the younger international student.
Additionally, the National Code requires schools to:
- take responsibility for a younger international student’s welfare;
- regularly check that the younger international student’s accommodation is appropriate to the student’s age and physical needs;
- have processes in place for monitoring any third agents it engages to provide accommodation;
- ensure that all adults involved in providing international students with accommodation and welfare have valid Working with Children Checks (WWCC); and
- report to the DIBP if it can no longer approve an international student’s welfare arrangements.
Impact on schools
The legislative changes have a significant impact on schools that will need to reassess their processes for placing younger international students in accommodation. Significantly, schools can no longer rely on commercial agencies or “guardians”.
Commercial agencies
Before the National Code, schools commonly used commercial agencies to place students in homestay accommodation and delegated checks to the agencies. This will no longer be permitted under the National Code which requires that the school undertake checks itself of the accommodation. It is considered best practice that this includes at least one physical check by the school.
While commercial agencies can still be used to help the school recruit homestay providers, collate documentation and provide support to homestay providers, the school will ultimately retain responsibility for the student’s accommodation and welfare.
“Guardians”
Similarly, it was also common for schools to require younger international students to appoint a ‘guardian’, ‘aunty’ or ‘uncle’. These terms were often used interchangeably and required the student to appoint a person who resided in Australia to take responsibility for the student’s accommodation, welfare and support. Appointing a ‘guardian’ is not a legal term or process and was generally used by schools to delegate its responsibility to another person.
The term ‘guardian’ is being increasingly scrutinised as it is often confused with the legal guardian of the younger international student. Schools can be caught in difficult situations if allows a ‘guardian’ to do things that only a legal guardian is permitted to do (e.g. allowing the ‘guardian’ to sign permission forms). Therefore, if a school wishes to require its students to appoint a local individual, it is recommended that this person is called a ‘local support person’ as opposed to a guardian and that their role is limited to support as opposed to guardianship duties.
Next steps
In light of the significant changes outlined above, schools should be proactive in relation to homestays. It is recommended that schools:
- Enact policies and procedures specific to homestays which reflect the new obligations under the National Code and state-based legislation.
- Review their record keeping procedures, particularly in relation to guardians of international students, local contact persons and WWCCs.
- Recruit a Homestay / Billeting Coordinator to ensure an individual is responsible for managing the homestay process.
- Train and engage with host families – including a homestay agreement – to maintain a line of communication between the school and the families and ensure that they are aware of their obligations.
- Educate international students on their rights and where to go for support.
Cecelia Irvine-So is a Practice Leader of the Corporate Advisory Team. She is accredited as a specialist in Business Law by the Law Institute of Victoria. Cecelia works for a significant number of independent schools regarding joint ventures, corporate compliance, enrolment terms, and privacy compliance, including the new mandatory data breach reporting regime. Cecelia believes in best achieving change and compliance by drawing on the powerful values of each school. Paying particular focus to the school’s mission/purpose, Cecelia advises and presents to Boards, management, staff, volunteers and contractors of educational organisations on education law and how they can implement proactive strategies. This type of work involves advising on the school’s policies and procedures, including recruitment procedures, codes of conduct and enrolment policies and procedures. Using the Moores Agreed Pricing model, Cecelia ensures that legal advice is driven primarily by the client’s mission and objectives, ensuring that the advice provided is relevant, practical, commercial and timely. Cecelia regularly presents to organisations on education law and compliance as well as privacy compliance. She has also delivered seminars for Legalwise, the Law Institute of Victoria and for Television Education Network and been published in Law Institute Journal, Insurance and Risk Professional and The Journal of Financial Advice and is the Editor in Chief of the Portner Press Data Privacy Report. Contact Cecelia at cirvine-so@moores.com.au or connect via LinkedIn 
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[1] Wrongs Amendment (Organisational Child Abuse) Act 2016 (Vic); Civil Liability Amendment (Organisational Child Abuse Liability) Act 2018 (NSW); Civil Liability (Institutional Child Abuse) Amendment Bill 2018 (Qld); this has not been enacted in South Australia yet
