by: Amber Daniels

Have you considered your marketing activities when reviewing your organisation’s compliance?

Many higher education providers are unaware of their compliance obligations regarding marketing and promotional activities, and of their responsibility to ensure that third parties representing or working on their behalf also adhere to the standards.

Regardless of your student profile, as a higher and/or vocational education provider there are specific standards your organisation’s marketing and promotional activity must meet, and others that should be implemented as best practice.

As well as the legal requirement to meet these standards, marketing compliance may form an important part of assessment during registration and re-registration as a higher education provider and CRICOS provider.

HESF and the National Code

Standard 6.2.1a of the Higher Education Standards Framework (Threshold Standards) 2021 (HESF) requires that providers comply with the legislation under which the provider is established, as well as any other legislative requirements.

Sections 7.1 and 7.2 of the HESF outline specific expectations for the propriety and clarity of public and marketing material. For example, HESF 7.1.1 and 7.1.5 seek to ensure that representations made to students around a provider, its educational offerings, and the educational, employment or migration outcomes associated with undertaking a course of study are not false or misleading. HESF7.2.2 clearly outlines the information that should be made available to a student to assist them to make an informed decision prior to accepting an offer. This includes specific information that must be provided to international students regarding living and studying in Australia.

Standard 1.1 of the National Code 2018, established under the ESOS Act 2000 (Cth), specifies that the marketing and promotion of a provider’s courses to international students (including through an education agent), is not false or misleading, and is consistent with Australian Consumer Law.

Standards 1.2 and 1.3 work in concert with the HESF, outlining content requirements when providers are seeking to enter written agreements with international students. As well as information regarding outcomes of study, this includes not providing false or misleading information on providers’ associations with third parties, work-based training requirements, prerequisites and English language proficiency.

There are further obligations on providers around recruitment activity outlined in Standard 1.5, which maintains that providers must not actively recruit a student, where doing so may conflict with obligations under Standard 7 (Overseas student transfers).

On a more mundane level, there are also requirements for providers to clearly identify their organisation on marketing material. Section B1 of the HESF outlines Criteria for Higher Education Categories. For Institutes of Higher Education, B1.1.3, for example, requires that the provider features its TEQSA Provider Identification and provider category on relevant public material. Similarly, National Code Standard 1.4 requires that the provider must include its CRICOS registered name and registration number on any written or online material that is disseminated or made publicly available in order to provide, or offer to provide, a course to an international student, inviting an international student to apply for a course, or indicating the provider is able or willing to provide a course to international students.

Australian Consumer Law

As with any other business, your organisation cannot make statements that are incorrect, or likely to create a false impression, under Australian Consumer Law (see the Competition and Consumer Act 2010 (Cth)). As good governance protects the integrity and quality of Australia’s higher education sector, so too do sound marking and promotional practices.

It is important to know that there is no distinction between an organisation that has intended to mislead the consumer or not. The Australian Competition and Consumer Commission (ACCC) have developed useful resources to help your organisation understand what false and misleading claims or advertising may be, and how your organisation can avoid misleading consumers. The ACCC advises the most common types of false and misleading advertising reported include:

• Relying on fine print and qualifications of claims
• Comparative advertising
• Bait advertising; and
• Environmental claims.

Ultimately, providers must be able to substantiate the claims their marketing and advertising material is making. Qualifying statements should be clear, to assist a reasonable person in making informed decisions about your organisation or its offerings. Comparative statements must be accurate, and able to be substantiated. Premium statements, or claims of credence or quality that cannot be substantiated, may also contravene Australian Consumer Law.

Additional Considerations

Further consideration may be given to Web Content Accessibility Guidelines (WCAG 2.2) and implementing those standards to ensure online material is accessible for people with disabilities (HESF 7.2.1).

Ensure materials are compliant with copyright and Creative Commons licencing, and that written consent is maintained on file when obtaining video, audio or written testimonials and photography for marketing purposes.

Evaluate your organisation’s social media profiles to ensure your provider is clearly and accurately identified in accordance with HESF and National Code requirements and consider implementing content guidelines to ensue statements made on official accounts are compliant with Australian Consumer Law.

How to Manage Marketing and Information Compliance

A clear marketing and information policy and procedure is a solid foundation to ensure the marketing and information practices of your organisation are compliant with relevant legislation.

Likewise, ensuring third party agreements outline the expectations and responsibilities of the provider and the third-party regarding information practices is essential to mitigate risk.

Developing content guidelines and marketing checklists to assure peak governing bodies that appropriate resources and mitigation strategies are in place to protect your organisation help streamline activities and provide excellent evidence of quality assurance and evaluation in registration and re-registration submissions.

Do you have questions or concerns about marketing? DVE can help you ensure your marketing policies and activities are meeting compliance standards. Contact DVE and feel free to download our free Marketing Compliance Checklist template to get you on your way to stress-free marketing.