Enforceable undertakings in 2026: who accepts them and which court enforces them
By Aurum Legal · 9 October 2026
Under section 133 of the Education Services for Overseas Students Act 2000 (the ESOS Act), the person who accepts a provider's enforceable undertaking depends entirely on the type of provider giving it: a registered higher education provider deals with the Chief Executive Officer of TEQSA (Tertiary Education Quality and Standards Agency), a registered VET provider deals with the National VET Regulator, an approved school provider deals with the Secretary, and any other registered provider deals with the head of its ESOS agency. Once accepted, the undertaking is enforced through the Federal Court of Australia or the Federal Circuit and Family Court of Australia (Division 2), both of which section 133 names as relevant courts. This follows the text of section 133 published on the Federal Register of Legislation, current as at September 2026. It is general information about how the provision works, not advice about any individual enrolment or dispute — for your own circumstances, rely on the official text or a registered professional's opinion.
Who is allowed to accept an enforceable undertaking?
Section 133(2) sets out one "authorised person" for each category of registered provider. That matters because the same word — enforceable undertaking — can point to a different regulator depending on what kind of provider signed it.
| Undertaking given by | Authorised person under section 133(2) |
|---|---|
| A registered higher education provider | The Chief Executive Officer of TEQSA |
| A registered VET provider | The National VET Regulator |
| An approved school provider | The Secretary |
| Any other registered provider | The head, however described, of the ESOS agency for that provider |
Read literally, this four-way split is how the Act routes compliance promises to the regulator that already oversees that sector. The final category matters for providers that sit outside those first three descriptions, since the Act refers to the agency head by function rather than by naming an office.
What provisions can an undertaking relate to?
Before reaching the authorised person question, section 133(1) defines what counts as an enforceable provision for these purposes. A provision is enforceable under Part 6 of the Regulatory Powers Act if it is a provision of the ESOS Act itself, a provision of the national code, or a provision of the ELICOS Standards or Foundation Program Standards.
That list is the outer boundary of what these undertakings can attach to. A promise about something outside those instruments is not, on the face of section 133, operating as an enforceable undertaking under this provision.
What can go into a written undertaking?
Section 133(4) permits an authorised person covered by subsection (2) to accept a written undertaking from a registered provider covering either of two things:
- that the provider will take, or refrain from taking, specified action in order to comply with a condition of the provider's registration; or
- that the provider will take specified action directed towards ensuring that in future it does not, or is unlikely to, contravene a condition of its registration.
Both limbs are tied to the provider's registration conditions — that is the spine of the concept. The subsection also requires the document to be expressed to be an undertaking under that subsection, so the formal wording is part of the test rather than decoration.
Which court enforces an enforceable undertaking?
Section 133(3) names two relevant courts in relation to the provisions listed in subsection (1): the Federal Court of Australia, and the Federal Circuit and Family Court of Australia (Division 2). The provision states both without assigning particular matters to either, so the answer to "which court" under this section is "either of these courts, as listed."
The enforcement machinery itself comes from Part 6 of the Regulatory Powers Act, which the ESOS Act notes creates a framework for accepting and enforcing undertakings about compliance with provisions. In plain terms: the Act supplies who can accept and which court is relevant, and Part 6 supplies the accepting-and-enforcing process around them.
How does section 133 interact with the general power in the Regulatory Powers Act?
Section 133(5) states that the power in subsection (4) is in addition to the power of an authorised person under subsection 114(1) of the Regulatory Powers Act. Section 133(6) then provides that Part 6 of the Regulatory Powers Act — apart from subsections 114(1) and (2) — applies to an undertaking accepted under subsection (4) as if it were an undertaking accepted under subsection 114(1).
The practical shape of this is that section 133 adds a layer rather than replacing anything, and undertakings accepted under it are then treated, for most Part 6 purposes, the same way as undertakings accepted under the general power. So there are two routes to a very similar outcome, and section 133 deliberately keeps both available.
Does this apply outside the mainland?
Yes, to a defined extent. Section 133(7) extends Part 6 of the Regulatory Powers Act — as it applies to the provisions in subsection (1) and to undertakings accepted under subsection (4) — to each external Territory mentioned in subsection 4B(1) of the ESOS Act. Because that list sits in another provision of the Act, check the current official text of section 4B(1) for the precise coverage, and treat official updates as controlling.
What does this tell you when you read about a provider's undertaking?
Assume a student reads that a college has signed an enforceable undertaking. The useful first move is to identify the provider type, because that reveals which regulator accepted it — for a higher education provider, the expectation from section 133 is TEQSA's Chief Executive Officer; for a VET provider, the National VET Regulator; for an approved school, the Secretary; for other registered providers, the head of the relevant ESOS agency.
Reading the document as a compliance instrument rather than as a verdict is the safer habit. Section 133 frames these undertakings around future compliance and future non-contravention of registration conditions; nothing in the section itself characterises the past conduct, and rescue arrangements, refunds and visa consequences are dealt with elsewhere in the regulatory scheme. A general note: this article is explanatory only and cannot predict how a regulator or court would act in a particular matter.
Frequently Asked Questions
Is an enforceable undertaking the same as a court order?
No. Section 133 describes an undertaking accepted by an authorised person, and separately names the Federal Court of Australia and the Federal Circuit and Family Court of Australia (Division 2) as relevant courts. Enforcement, if it becomes necessary, runs through the court rather than being ordered at the moment of signing.
Who accepts an undertaking from a private higher education provider?
Under section 133(2)(a), an undertaking by a registered higher education provider is dealt with by the Chief Executive Officer of TEQSA. The Act uses the provider's registration category, not the provider's size or ownership, to make that allocation.
What if the provider is a school rather than a university or a VET college?
Section 133(2)(c) assigns approved school providers to the Secretary. The Act does not spell out further detail about that office in section 133 itself, so the term used in the provision is "the Secretary".
Are the Federal Court and the Federal Circuit and Family Court alternatives here?
Both are listed as relevant courts by section 133(3). The subsection names them together and does not, on its face, set out a rule dividing matters between them.
Must the undertaking be in writing, and does wording matter?
Yes to both. Section 133(4) refers to a written undertaking given by a registered provider, and requires it to be expressed to be an undertaking under subsection (4). The required subject matter is also limited to the two limbs set out in that subsection.
Can an undertaking deal with a provider's past breach only?
Section 133(4) is forward-looking: one limb concerns achieving compliance with a registration condition, the other concerns ensuring the provider does not, or is unlikely to, contravene a condition in future. A document dealing purely with past events would not match either limb as written.