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2019-2020
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
HIGHER EDUCATION LEGISLATION AMENDMENT
(PROVIDER CATEGORY STANDARDS AND OTHER
MEASURES) BILL 2020
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Education,
the Honourable Dan Tehan MP)
HIGHER EDUCATION LEGISLATION AMENDMENT (PROVIDER
CATEGORY STANDARDS AND OTHER MEASURES) BILL 2020
OUTLINE
The Higher Education Legislation Amendment (Provider Category Standards and
Other Measures) Bill 2020 (the Bill) proposes to amend the Tertiary Education
Quality and Standards Agency Act 2011 (TEQSA Act) to:
give effect to the Commonwealth Government's decision to implement the
recommendations arising from the Review of the Higher Education Provider
Category Standards (PCS Review);
give effect to an outstanding recommendation from the Review of the impact
of the TEQSA Act on the higher education sector (Impact Review), to refer to
the Threshold Standards as a single unified framework; and
improve regulation of Australia's higher education sector through a small
number of other measures, including to ensure student records can be
appropriately handled following a provider ceasing to operate and to protect
the term 'university' as it appears in Australian internet domain names.
The Bill also proposes to amend the Higher Education Support Act 2003 (HESA) to:
replace references to 'Indigenous students' with 'Indigenous persons' to
provide clarity around the scope of 'Indigenous Student Assistance Grants'.
The 2017-18 Budget included a measure to undertake a review of the Higher
Education Provider Category Standards, which are part of a legislative instrument,
the Higher Education Standards Framework (Threshold Standards) 2015 (the
Threshold Standards). The PCS Review, undertaken by Emeritus Professor Peter
Coaldrake AO in 2018-19, recommended amendments to the Provider Category
Standards to ensure they support the Government's goals for a diverse and
high-quality higher education sector that meets the needs of students, employers,
higher education providers and the wider community, with category standards that
are fit for purpose for the future.
At the Minister's request, and as required by Section 58 of the TEQSA Act, the
Higher Education Standards Panel (the Panel), which advises the Commonwealth
Minister for Education on changes to the Higher Education Standards Framework
and on higher education quality and regulatory matters, proposed amendments to
the Threshold Standards to give effect to the PCS Review recommendations. To
accommodate these proposed amendments to the Threshold Standards,
complementary amendments are also proposed to be made to the TEQSA Act by
this Bill to ensure that the Threshold Standards can be made as proposed. Should
this Bill be enacted, new Threshold Standards, in the form proposed by the Panel,
will therefore be made by legislative instrument, with both the legislative instrument
2
and relevant provisions of the Bill to come into effect on the same date, to be fixed
by proclamation..
In particular, the measures in Schedule 1 of the Bill will:
amend a small number of references to provider category types, to reflect the
new provider category names. References to ''a provider category that
permits the use of the word "university"' will be replaced with references to
either the 'Australian University' or 'Overseas University' provider category, to
account for the introduction of the new 'University College' category for high
quality, high-performing non-university providers (which will be permitted to
use the term 'university' in their name);
enable TEQSA to make a determination setting out factors it will take into
consideration when assessing the quality of research under new university
research benchmarks; and
clarify references to the type of self-accrediting authority for 'Australian
University' category providers (as required to give effect to the introduction in
the Threshold Standards of a subset of the 'Australian University' category of
universities that have a 'specialised focus', and which do not have full self-
accrediting authority).
The Impact Review was conducted by Deloitte Access Economics in 2016-17, in
accordance with section 203 of the TEQSA Act, which required that, before
1 January 2016, the Minister commence a review of the impact of the TEQSA Act on
the higher education sector. The majority of amendments required to respond to this
review were made through the Tertiary Education Quality and Standards Agency
Amendment Act 2019. The outstanding recommendation, which was deferred until
after completion of the PCS Review, proposed reframing references to the Threshold
Standards in the TEQSA Act as a single unified framework, instead of four distinct
types of Threshold Standards. This amendment will enable the structure of the
Threshold Standards instrument to be simplified, making it clearer to read and use.
Other measures to improve higher education regulation given effect by the Bill will:
include reference to the Australian Qualifications Framework qualification
type 'undergraduate certificate' in the definition of 'higher education award';
allow TEQSA to extend the period of a provider's registration or course
accreditation more than once, which will help TEQSA manage its regulatory
workload better and provide low-risk providers with additional flexibility;
allow merits review of a decision by TEQSA not to change a provider's
category;
provide TEQSA with the legislative authority to assume control of higher
education student records from a registered higher education provider in the
3
event the provider ceases operations (and to allow students and providers to
request access):
o This measure is part of the Government's Job-ready Graduates
package, and will help current and former higher education students
obtain access to their academic records in the event that a registered
higher education provider ceases to operate;
o The measure will provide TEQSA with similar legislative powers to
those conferred on the Australian Skills Quality Authority (ASQA) in
sections 211 to 214 of the National Vocational Education and Training
Regulator Act 2011, which require registered training organisations to
provide ASQA with a copy of their student records within 30 days of
ceasing operation.
protect use of the word 'university' in Australian internet domain names, by
requiring consent of the Minister to issue a domain name containing the word
'university' or words or expressions that have the same or similar meaning.
The amendments in Schedule 2 of the Bill will replace references to 'Indigenous
student' with 'Indigenous person' in Part 2-2A of HESA to ensure that providers can
use Indigenous student assistance grants to assist prospective Indigenous students
as well as existing students.
Overall, the amendments are intended to help clarify and streamline the regulatory
framework for the benefit of higher education providers, students and potential
students.
4
FINANCIAL IMPACT STATEMENT
The student records management provisions in the Bill are expected to cost
$2 million over four years from 2020-21. The other measures in the Bill have no
financial implications.
5
REGULATION IMPACT STATEMENT
The Regulation Impact Statement for the Bill titled "What's in a Name? Review of the
Higher Education Provider Category Standards" is at the end of this Explanatory
Memorandum (Attachment A).
6
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011
HIGHER EDUCATION LEGISLATION AMENDMENT (PROVIDER
CATEGORY STANDARDS AND OTHER MEASURES) BILL 2020
The Higher Education Legislation Amendment (Provider Category Standards and
Other Measures) Bill 2020 (the Bill) is compatible with the human rights and
freedoms recognised or declared in the international instruments listed in section 3 of
the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
The Bill proposes to amend the Tertiary Education Quality and Standards Agency
Act 2011 (TEQSA Act) to:
give effect to the Commonwealth Government's decision to implement the
recommendations arising from the Review of the Higher Education Provider
Category Standards (PCS Review);
give effect to an outstanding recommendation from the Review of the impact
of the TEQSA Act on the higher education sector (Impact Review), to refer to
the Threshold Standards as a single unified framework; and
improve regulation of Australia's higher education sector through a small
number of other measures, including to ensure student records can be
appropriately handled following a provider ceasing to operate and to protect
the term 'university' as it appears in Australian internet domain names.
The Bill also proposes to amend the Higher Education Support Act 2003 (HESA) to:
replace references to 'Indigenous students' with 'Indigenous persons' to
provide clarity around the scope of 'Indigenous Student Assistance Grants'.
The 2017-18 Budget included a measure to undertake a review of the Higher
Education Provider Category Standards, which are part of a legislative instrument,
the Higher Education Standards Framework (Threshold Standards) 2015 (the
Threshold Standards). The PCS Review, undertaken by Emeritus Professor Peter
Coaldrake AO in 2018-19, recommended amendments to the Provider Category
Standards to ensure they support the Government's goals for a diverse and
high-quality higher education sector that meets the needs of students, employers,
higher education providers and the wider community, with category standards that
are fit for purpose for the future.
7
The Higher Education Standards Panel (the Panel), which advises the
Commonwealth Minister for Education on changes to the Higher Education
Standards Framework and on higher education quality and regulatory matters,
drafted amendments to the Threshold Standards to give effect to the PCS Review
recommendations. To accommodate these proposed amendments to the Threshold
Standards, complementary amendments are also proposed to be made to the
TEQSA Act by this Bill to ensure that the Threshold Standards can be made as
proposed.
The Bill provides capacity for TEQSA to make a determination, by legislative
instrument, setting out factors it will take into consideration when assessing the
quality and quantity of research under new university research benchmarks. It also
clarifies references to the type of self-accrediting authority for 'Australian University'
category providers under the new Threshold Standards.
In response to an outstanding recommendation from the Impact Review, references
to the Threshold Standards will be reframed as a single unified framework, instead of
four distinct types of Threshold standards as originally specified in the TEQSA Act.
Other measures to improve higher education regulation given effect by the Bill will:
include reference to the Australian Qualifications Framework qualification
type 'undergraduate certificate' in the definition of 'higher education award';
allow TEQSA to extend the period of a provider's registration or course
accreditation more than once, which will help TEQSA manage its regulatory
workload better and provide low-risk providers with additional flexibility;
allow merits review of a decision by TEQSA not to change a provider's
category;
provide TEQSA with the legislative authority to assume control of higher
education student records from a registered higher education provider in the
event the provider ceases operations:
o This measure is part of the Government's Job-ready Graduates
package, and will help current and former higher education students
obtain access to their academic records in the event that a registered
higher education provider ceases to operate;
o The measure will provide TEQSA with similar legislative powers to
those conferred on the Australian Skills Quality Authority (ASQA) in
sections 211 to 214 of the National Vocational Education and Training
Regulator Act 2011, which require registered training organisations to
provide ASQA with a copy of their student records within 30 days of
ceasing operation.
8
protect use of the word 'university' in Australian internet domain names, by
requiring consent of the Minister to issue a domain name containing the word
'university' or its derivatives.
9
Analysis of human rights implications
The Bill engages the following human rights:
the right to education - Article 13 of the International Covenant on Economic,
Social and Cultural Rights (ICESCR);
the right to privacy - Article 17 of the International Covenant on Civil and
Political Rights (ICCPR); and
the right to freedom of expression - Article 19 of the ICCPR.
Right to education
The Bill engages the right to education, which is set out in Article 13 of the ICESCR.
The right to education recognises the important personal, societal, economic and
intellectual benefits of education.
The measures contained in the Bill amend the Threshold Standards to simplify and
streamline provider categories, and clearly articulate the requirements to be
categorised as a particular type of higher education provider. This will help to ensure
a diverse and high-quality higher education sector that meets the needs of students,
employers, higher education providers and the wider community.
The Bill also makes a number of amendments that are technical in nature, and are
designed to provide TEQSA with greater flexibility in conducting its regulatory
functions, consistent with its risk-based and proportionate approach to regulation.
These will, in turn, improve higher education providers' ability to deliver high-quality
teaching, learning and research, optimising educational outcomes for students.
Provisions in the Bill allowing TEQSA to collect some student records will help
current and former higher education students to obtain access to their academic
records in the event that a registered higher education provider ceases to operate. In
the past, students of providers that have ceased operation have had difficulty in
obtaining their student records, as current arrangements for accessing these records
are unclear. These amendments are intended to address this.
TEQSA currently has no legislative authority to take custody of such records. In the
past, when former students of closed providers have sought TEQSA's assistance to
gain access to their academic records it has had to rely solely on the goodwill of, and
professional relationships forged with, the relevant providers, liquidators and the like,
to facilitate access to records. This measure promotes the right to education by
ensuring students can access their records and transition without impediment to new
educational opportunities with other tertiary education providers and, more broadly,
supports student access to and participation in higher education in Australia.
The Bill is compatible with the right to education because the amendments,
separately and in combination, will clarify and streamline the regulatory framework
10
associated with the provision of education to the benefit of higher education
providers, students and potential students.
The amendments in Schedule 2 confirm the arrangements provided in Part 2-2A of
HESA. For detailed discussion of the human rights implications of Part 2-2A, see the
statement of compatibility with human rights in the explanatory memorandum to the
Higher Education Support Legislation Amendment (2016 Measures No. 1) Bill 2016.
Right to privacy
The Bill engages Article 17(1) and 17(2) of ICCPR, which states that "no one shall be
subject to arbitrary or unlawful interference with his privacy ... nor to unlawful attacks
on his honour and reputation" and that "everyone has the right to the protection of
the law against such interference or attacks".
The right to privacy under Article 17 allows, impliedly, for the right to be limited
provided that limitation or purported interference is not 'arbitrary' or 'unlawful'. In
order for an interference with the right to privacy to be permissible, the interference
must be prescribed or authorised by law, be for a reason consistent with the ICCPR
and be reasonable, necessary and proportionate means for pursuit of a legitimate
objective. The UN Human Rights Committee has interpreted the requirement of
'reasonableness' to imply that any interference with privacy must be proportional to
the end sought and be necessary in the circumstances of any given case.
The Bill engages the right to privacy because it authorises TEQSA to collect student
records that may include personal information (within the meaning of the Privacy Act
1988) from a registered higher education provider in the event the provider ceases
operations. As a result, this measure would necessarily involve the access, transfer
and storage of student personal information, including sensitive information.
This measure is reasonable, necessary and proportionate means for pursuit of a
legitimate objective because it is designed to help current and former higher
education students to obtain access to their academic records in the event that a
registered higher education provider ceases to operate. Currently a student may
have to approach a number of different entities such as liquidators, parent
companies, new owners, former managers or academics in order to access their
academic records, which in some cases may be incomplete or unusable. Information
about students can only be obtained, used and disclosed under these provisions in
the furtherance of this legitimate policy objective.
The proposed amendments are also targeted, measured and subject to existing
privacy protections. They specify clearly the circumstances in which the transfer of
personal information from a provider to TEQSA is permitted or required. Notably, as
a Commonwealth agency, TEQSA and its staff are subject to the terms of the
Privacy Act and the Australian Privacy Principles (APPs) established under that Act.
Personal information held by TEQSA as a result of this measure will only be able to
be accessed and disclosed by TEQSA in circumstances consistent with the purpose
for which the information was collected (APP 6). TEQSA may disclose the
11
information to the student to whom it relates (APP12), or under certain
circumstances to a second higher education provider, to facilitate the movement of a
student's academic records to another higher education provider where the student
enrolls with that provider and has consented to the information being passed to the
new provider.
TEQSA will undertake a privacy impact assessment (PIA) as part of its
implementation of this measure to ensure that its handling of personal information
under the new provisions in the Bill complies with the Privacy Act 1988.
To the extent that these measures limit the right to privacy, such limitations are
consistent with the prohibition on arbitrary interference with privacy as they are
directed at a legitimate objective and are reasonable and proportionate to that
objective. Further, in streamlining the access route to private information that is held
by providers which have ceased operation, the measure aims to improve the
protection of the privacy of students affected by provider closures. Students of
closed higher education providers will have a single point for access for their
academic transcripts, assessment results, grades, and qualifications, without having
to approach a range of individuals and entities to which the records may have
passed in the absence of TEQSA's role (as is currently the case).
Right to freedom of expression
The Bill engages the right to freedom of opinion and expression as contained in
Article 19 of the ICCPR. Amongst other things, Article 19 states that individuals must
have the 'freedom to seek, receive and impart information and ideas of all kinds,
regardless of frontiers'. Under Article 19(3), the right to freedom of expression may
be subject to limitations that are necessary to protect the rights or reputations of
others, national security, public order, or public health or morals. Limitations must be
prescribed by law, pursue a legitimate objective, be rationally connected to the
achievement of that objective and a proportionate means of doing so.
The Bill will require approval of the Minister before a licence can be issued to use an
Australian internet domain name containing the word 'university' (or expressions of
similar meaning). This measure will, in effect, limit the capacity of individuals to
choose domain names in some circumstances where those domain names include
the word 'university' or expressions of similar meaning - for example 'uni' or, in some
cases, 'U'. This restriction mirrors similar requirements on the issuing of company
and business names containing the word 'university' or derivatives of that term.
The policy intent underpinning this measure is to protect the reputation of Australian
higher education institutions by preventing misleading, or deceptive use of the word
'university' in company names, business names and domain names in ways that
could undermine the standing or reputation of individual institutions or the higher
education sector as a whole. Protecting the use of the word 'university' is one
element of Australia's higher education quality arrangements. Restricting the use of
the word 'university' in company names, business names and domain names
ensures that employers and students can be confident that any institution with the
word 'university' in its title meets the relevant quality requirements. It also acts as a
consumer protection measure to limit the opportunity for individuals to be misled
12
about the nature and standing of a business or service that claims to have a
connection to one or more universities.
In today's online world, internet domain names are effectively the trading names of
many businesses and services, many of which are unincorporated and do not seek
formal approval of a business or company name.
Under guidelines approved by the Minister, approval may be granted, for example,
where the applicant:
is a university itself or has the approval of a university to use its name - for
example in a campus-based club or business; or
is not a university or a university-related entity with approval to use the
university's name, and:
o does not propose to provide education services or information about
education services;
o does not purport to operate as a university;
o the proposed name reflects the purpose for which the business is being
formed.
A policy to limit the allocation of domain names containing the word 'university' was
previously in operation through inclusion of the word 'university' on the reserved list
of .auDA, the Government-endorsed industry self-regulatory body for the .au Country
Code internet Top Level Domain space. The Bill will provide specific authority to
reinstate the policy as a matter of law.
The requirement to seek approval for use of the word 'university' in a domain name
is a reasonable, necessary and proportionate response to the need to maintain the
integrity and reputation of Australia's higher education system. This is because an
authorisation process is the least restrictive means to minimize the likelihood of
domain names being misused. The authorisation process is limited and
proportionate to the reasonable policy objective of curtailing the misuse of 'university'
or analogous words in domain names.
There is no restriction on the use of a domain name once it has been licensed. As is
the case in relation to company and business names, the restriction effectively
applies to those responsible for issuing domain name licences, rather than on
individuals who have been issued a licence.
The Bill is compatible with the right to freedom of expression as the limitation will be
prescribed by law, pursue a legitimate objective that is rationally connected to the
limitation and is a proportionate means of doing so.
Conclusion
Measures in the Bill, which bolster TEQSA's regulatory capabilities, enable amended
Threshold Standards, allow TEQSA to specify matters in relation to new research
13
quality benchmarks for providers in the 'Australian University' category, simplify and
consolidate tertiary provider categories and assist students to access their records in
the event a provider ceases to operate, support and enhance the right to education
by improving both the governance arrangements and the functional experience of
students entering, and navigating through, the tertiary education system. To the
extent that measures contained in the Bill may limit human rights, these limitations
are reasonable, necessary, and proportionate to the legitimate policy aims to which
those measures are directed.
The Bill is compatible with human rights.
14
HIGHER EDUCATION LEGISLATION AMENDMENT
(PROVIDER CATEGORY STANDARDS AND OTHER
MEASURES) BILL 2020
NOTES ON CLAUSES
Clause 1 - Short title
This clause provides for the Act to be the Higher Education Legislation Amendment
(Provider Category Standards and Other Measures) Act 2020.
Clause 2 - Commencement
The table in subclause 2(1) sets out when the Act's provisions will commence. The
table provides that:
sections 1 to 3 and anything in the Act not covered elsewhere in the table
commence on the day the Act receives the Royal Assent;
Part 1 of Schedule 1 - containing the Provider Category Standards-related
amendments - commences on a date to be fixed by Proclamation or, if the
provisions do not commence within 12 months from the day the Act receives
the Royal Assent, the provisions commence the day after the end of that 12
month period;
Part 2 of Schedule 1 - containing the other regulatory measures in the Bill -
commences the day after the Act receives the Royal Assent;
Items 1 to 4 of Schedule 2 - commences the day after the Act receives the
Royal Assent
Item 5 of Schedule 2 commences immediately after the commencement of
Items 1 to 4 of Schedule 2. However, the Item does not commence at all if
Schedule 1 to the Higher Education Support Amendment (Job-ready
Graduates and Supporting Regional and Remote Students) Act 2020
commences on or before the day on which Items 1 to 4 of Schedule 2
commence.
Subclause 2(2) provides that information in column 3 of the table at subclause 2(1) is
not part of the Act and information may be inserted into column 3 or information in it
may be edited in any published version of the Act.
Clause 3 - Schedules
This clause provides that any legislation that is specified in a schedule is amended
or repealed as set out in the applicable items in the schedule and that any other item
in a schedule has effect according to its terms.
15
LIST OF ABBREVIATIONS
COAG Council of Australian Governments
HESA Higher Education Support Act 2003
Impact Review Review of the Impact of the TEQSA Act on the higher
education sector undertaken by Deloitte Access Economics and
published in 2018
Panel Higher Education Standards Panel
PCS Review Review of the higher education Provider Category Standards
conducted by Emeritus Professor Peter Coaldrake AO and
released in 2019.
TEQSA Act Tertiary Education Quality and Standards Agency Act 2011
16
Schedule 1 - Higher Education
standards and other
amendments
Summary
The amendments in Part 1 of Schedule 1 give effect to:
recommendations arising from the PCS Review that require a legislative
response; and
an outstanding recommendation from the Impact Review - this is done by
removing references to different types of Threshold Standards.
The amendments in Part 2 of Schedule 1 enact a number of other measures
intended to strengthen the way the TEQSA Act is administered and TEQSA's
regulatory role to:
include reference to the new Australian Qualifications Framework qualification
type 'undergraduate certificate' in the definition of 'higher education award';
allow TEQSA to extend the period of a provider's registration or course
accreditation more than once;
introduce external merits review of a decision by TEQSA not to change the
category in which a provider is registered;
provide TEQSA with the legislative authority to assume collect and disclose
higher education student records from a registered higher education provider
in the event the provider ceases operations; and
require domain name licensors to obtain ministerial consent to use the term
'university' or its derivatives in Australian internet domain names.
Detailed explanation
Part 1 - Higher education standards
Tertiary Education Quality and Standards Agency Act 2011
Item 1
Section 4 of the TEQSA Act is a simplified outline of the TEQSA Act.
17
Item 1 omits and substitutes that part of the outline which relates to the need for
registered higher education providers to have their courses of study accredited
before they can provide those courses in connection with regulated higher education
awards.
The new wording is similar to the current wording, except that it makes some minor
drafting changes and clarifies that some providers (including those registered in the
'Australian University' category) are authorised to self-accredit some or all of their
courses of study.
Items 2 to 5
These items amend the definitions contained in section 5 of the TEQSA Act to
remove references to different types of Threshold Standards, in line with the
outstanding recommendation of the Impact Review, as follows:
Item 2 repeals and substitutes the definition of Higher Education Standards
Framework - the new definition being the Threshold Standards and any
other standards made under paragraph 58(1)(b). The capacity for the Minister
to make standards in addition to the Threshold Standards, should the need
ever arise, is retained.
Item 3 amends the definition of provider category so that it now means a
provider category listed in the Threshold Standards (instead of a provider
category listed in the Provider Category Standards). Once the new Threshold
Standards come into effect, the provider categories will be described in a
separate part of the Threshold Standards, rather than a separately
constituted and separately named set of 'Provider Category Standards'.
Item 4 repeals the following definitions, which are no longer required because
the relevant standards will no longer be used, and instead their content will
be captured in the Threshold Standards:
Provider Category Standards
Provider Course Accreditation Standards
Provider Registration Standards
Item 5 repeals and substitutes the definition of Threshold Standards - the
new definition being the Threshold Standards made under paragraph
58(1)(a), The new singular set of Threshold Standards will replace the current
four separate types of Threshold Standards - see also amendments to
subsection 58(1) made by (Item 14).
Items 6 to 9
Items 6 to 9 make minor changes to the language used in various provisions of the
TEQSA Act to reflect the introduction of the new 'Australian University' and
'Overseas University' provider categories.
Item 6 amends paragraphs 19(2)(b) and 20(2)(b) to omit "permits the use of the word
'university'" and, substitutes it with: "is either the 'Australian University' or 'Overseas
University' provider category, to reflect the change in provider categories under the
Threshold Standards.
18
Section 33 of the TEQSA Act concerns decisions that TEQSA proposes to make
about the ability of a registered higher education provider, that is registered in a
provider category that permits the use of the word 'university', to self-accredit its
courses. Item 7 amends paragraph 33(1)(a) to omit reference to "permits the use of
the word 'university':" and substitutes it with: "either the 'Australian University' or
'Overseas University' provider category", to reflect the change in provider categories
under the Threshold Standards.
Section 36 of the TEQSA Act concerns decisions by TEQSA on whether to renew
the registration of a registered higher education provider. Under subsections 36(5)
and 36(6), if TEQSA proposes to reject an application for renewal of registration
made by a provider that is registered in a provider category that permits the use of
the word 'university', then TEQSA must give the provider and the relevant state or
territory minister for higher education notice of the proposed decision and allow them
the opportunity to provide representations about the matter. Item 8 amends
paragraph 36(6)(b) to omit reference to permitting the use of the word 'university'
and, instead, substitutes reference to either the 'Australian University' or 'Overseas
University' provider category to reflect the change in provider categories under the
Threshold Standards.
Section 39 of the TEQSA Act concerns consultations that TEQSA must undertake
when considering whether to make a decision under subsection 38(1) to change the
category in which a provider is registered. Under paragraph 39(1)(b), if TEQSA
proposes to make a decision under subsection 38(1) to change a provider's category
of registration and the provider is registered in a provider category that permits the
use of the word 'university' - then TEQSA must give the provider and the relevant
state or territory minister for higher education notice of the proposed decision and
allow them the opportunity to provide representations about the matter.
Item 9 amends paragraph 39(1)(b) to omit reference to permitting the use of the
word 'university' and, instead, substitutes reference to either the 'Australian
University' or 'Overseas University' provider category.
Items 10 and 11
Section 45 of the TEQSA Act concerns who can accredit courses of study.
Subsection 45(1) provides that registered higher education providers in the
Australian university provider category that are established by or under, or
recognised by, a Commonwealth, state or territory law, or are registered as
companies under Part 2A.2 of the Corporations Act 2001, are authorised to self-
accredit their courses that lead to a higher education award they offer or confer.
Item 10 replaces the words "Australian university provider category" in paragraph
45(1)(a) with the words "'Australian University' provider category", to better reflect
the way the new provider category is expressed in the Threshold Standards.
Item 11 inserts a new subsection 45(2A) which provides that subsection 45(1) does
not apply to registered higher education providers in the 'Australian University'
19
category if they have a specialised focus in accordance with the Threshold
Standards. This is necessary as, in future, the 'Australian University' category will
encompass providers that offer courses across a broad curriculum in several fields of
education, as well as providers that offer a more limited offering in just one or two
fields of education. The latter will not have automatic authority to self-accredit
courses outside of their recognised specialised fields of education. They would either
need to seek accreditation by TEQSA under section 46 for any courses they wished
to offer in other fields of education or, alternatively, seek authority to self-accredit
courses in those additional fields of education under section 41.
Items 12, 13, 16 and 17
Items 12, 13, 16 and 17 make minor amendments to paragraph 49(1)(b), subsection
56(1), section 61 and paragraph 98(d) of the TEQSA Act to omit 'Provider Course
Accreditation Standards' and substitute 'Threshold Standards', as the Provider
Course Accreditation Standards are being replaced with the Threshold Standards.
Item 14
Subsection 58(1) of the TEQSA Act provides that the Minister may, by legislative
instrument, make a number of standards that together comprise the Higher
Education Standards Framework. These are: the Provider Registration Standards;
the Provider Category Standards; the Provider Course Accreditation Standards; the
Qualification Standards (all four of which Note 1 explains make up the Threshold
Standards); as well as other standards against which the quality of higher education
can be assessed.
Item 14 repeals and substitutes subsection 58(1). New subsection 58(1) provides
that the Minister may, by legislative instrument, make standards that together
comprise the Higher Education Standards Framework. These are the Threshold
Standards and other standards against which the quality of higher education can be
assessed. This change streamlines the standards providers are expected to satisfy,
in line with an outstanding recommendation of the Impact Review. A Note draws
attention to subsection 33(3) of the Acts Interpretation Act 1901 which clarifies that
the power to make the standards includes the power to vary or revoke them.
Item 15
Item 15 inserts new section 59A. New subsection 59A(1) provides that, if TEQSA is
considering the Threshold Standards, to the extent they relate to research, either in
relation to:
a regulated entity that has applied to TEQSA for registration within the
"Australian University" provider category;
a registered higher education provider that has applied under section 38 to
change to the "Australian University" provider category; or
a registered higher education provider that is in the "Australian University"
provider category (for example, in relation to deciding whether to renew the
registration of a registered higher education provider as an "Australian
20
University" under section 36 of the TEQSA Act, or in relation to compliance
assessments undertaken under section 59 of the TEQSA Act);
then TEQSA must have regard to the quality of the research undertaken by the entity
or provider.
This reflects the PCS Review's recommendation that new research quality
benchmarks be included in the Threshold Standards for providers in the 'Australian
University' category. While the current Provider Category Standards require
universities to undertake "research that leads to the creation of new knowledge and
original creative endeavour", they do not specify how this is to be measured or
assessed.
New subsection 59A(2) provides that, in having regard to the research undertaken
by the entity or provider under new subsection 59A(1), TEQSA must have regard to
the matters determined in an instrument made under new subsection 59A(7) (if such
an instrument is in force).
New subsection 59A(3) specifies that new subsection 59A(2) does not limit the
matters to which TEQSA may have regard (in considering the quality of research
undertaken by an entity or provider under subsection (1)).
New subsection 59A(4) provides that TEQSA may, in writing, determine matters
relating to the quality of research for the purposes of new section 59A.
New subsection 59A(5) provides that a determination made under new subsection
59A(4) has no effect unless the Minister approves it in writing.
New subsection 59A(6) specifies that TEQSA must give the Minister such
information as the Minister reasonably requires for the purposes of approving the
determination.
New subsection 59A(7) provides that a determination under subsection 59A(4) made
by TEQSA and approved by the Minister is a legislative instrument made by the
Minister on the day on which the determination is approved.
Item 18
Section 108 provides for an offence and a civil penalty for a regulated entity that
uses the word 'university' in representations about itself or its operations concerning
courses of study and higher education awards - when the entity is not registered in a
'university' category.
Item 18 amends paragraphs 108(1)(b) and 108(2)(b) to omit the words "a provider
category that permits the use of the word 'university'" and substitutes "the 'Australian
University' or 'Overseas University' provider category", to better reflect the way the
new provider category is expressed.
21
Neither the offence nor civil penalty will apply to providers in the new 'University
College' category as long as they represent themselves as a University College,
rather than a University. A requirement within the new Threshold Standards will
mandate that, while a University College category provider is welcome to use the
word 'university' in its institutional branding, it must only do so by using the full
category name 'university college' and not just the word 'university' in isolation.
Item 19 is an application provision which provides as follows:
the amendments made to paragraphs 19(2)(b) and 20(2)(b) of the TEQSA
Act (see Item 6) apply to applications made on or after the commencement of
Item 19;
the amendments made to paragraphs 33(1)(a), 36(6)(b) and 39(1)(b) of the
TEQSA Act (see Items 7, 8 and 9) apply to decisions made on or after the
commencement of Item 19;
the amendment that inserts subsection 45(2A) of the TEQSA Act (see Item
11) applies in relation to working out whether a registered higher education
provider is authorised to self-accredit a course of study on or after the
commencement of Item 19;
the amendment made to paragraph 49(1)(b) of the TEQSA Act (see Item 12)
applies to applications for accreditation of courses of study made on or after
the commencement of Item 19, or that were pending immediately before that
commencement;
the amendment made to subsection 56(1) of the TEQSA Act (see Item 13)
applies to applications for renewal made on or after the commencement of
Item 19, or that were pending immediately before that commencement;
the amendment made to insert subsection 59A(1) (see Item 15) of the
TEQSA Act applies in relation to the consideration of the Threshold
Standards on or after the commencement of Item 19, whether the research
was undertaken before, on or after that commencement;
the amendment made to paragraph 98(d) of the TEQSA Act (see Item 17)
applies in relation to a failure to ensure that an accredited course in relation
to a provider meets the Threshold Standards that occurred on or after the
commencement of Item 19;
Subdivision A of Division 1 of Part 7 of the TEQSA Act (Administrative
sanctions), as in force immediately before the commencement of Item 19,
continues to apply on or after that commencement in relation to a failure
referred to in paragraph 98(d) (i.e. a failure to ensure that an accredited
course in relation to a provider meets the Provider Course Accreditation
Standards) that occurred before the commencement of Item 19; and
the amendments made to section 108 of the TEQSA Act (see Item 18) apply
to uses of the word 'university' on or after the commencement of Item 19.
22
Part 2 - Other amendments
Tertiary Education Quality and Standards Agency Act 2011
Item 20
Item 20 expands the definition of higher education award in section 5 of the
TEQSA Act by adding in the words 'undergraduate certificate' after 'bachelor
degree'. This reflects COAG Education and Skills Councils' agreement to add
'Undergraduate Certificate' to the Australian Qualifications Framework as a new
higher education qualification type from May 2020 to December 2021, unless this
period is extended by the Councils.
Item 21
Item 21 inserts a definition of higher education student records into section 5 of
the TEQSA Act, as it is used in new Subdivision C of Division 2 of Part 10 (see
Item 28). This definition covers documents or objects in any form (including any
electronic form):
held by an entity that is a registered higher education provider, because of the
document's or object's connection with a person who is or was enrolled in an
accredited course provided by the entity
held by an entity that is a former registered higher education provider at a
time when it was a registered higher education provider, because of the
document's or object's connection with a person who was enrolled in an
accredited course provided by the entity.
Item 22
Subsection 37A(1) of the TEQSA Act currently provides that TEQSA may extend the
period of a registered higher education provider's registration, so long as the period
has not been previously extended by TEQSA. Item 22 removes the words 'so long
as the period has not been previously extended by TEQSA'. This will enable TEQSA
to extend the period of registration more than once. Having this ability may be
necessary to manage regulatory activity during the COVID-19 pandemic. It will also
offer TEQSA greater flexibility to manage provider registrations into the future,
particularly for low risk high quality providers that may have had a previous period of
extension - including a relatively short extension period that might have been
granted in response to the pandemic.
Items 23 and 24
Under paragraph 38(1)(b) of the TEQSA Act, TEQSA may change the provider
category in which a registered higher education provider is registered on application
by the provider (under paragraph 38(1)(a), TEQSA may also change the provider
category on its own initiative).
23
Item 23 inserts a new subsection 38(1A) into the TEQSA Act which makes it clear
that, where a provider has made an application under paragraph 38(1)(b) application
to change its category of registration, TEQSA may decide not to change that
category. This addition will enable decisions not to change a provider category to be
included in the list of decisions that may be reviewed by the Administrative Appeals
Tribunal - see Item 27.
Subsection 38(2) provides that, before it makes a decision under subsection 38(1), it
must have regard to the Threshold Standards. Item 24 makes a consequential
amendment to subsection 38(2) to provide that this requirement to have regard to
the Threshold Standards also applies to a decision under the new subsection
38(1A).
Item 25
Section 40 of the TEQSA Act provides that TEQSA must, within 40 days of making a
subsection 38(1) decision, give the registered higher education provider written
notice of its decision and reasons for the decision. Item 25 amends section 40 to
extend this requirement to decisions made under new subsection 38(1A) (see
Item 23).
Item 26
Subsection 57A(1) of the TEQSA Act currently provides that TEQSA may extend the
period of accreditation of a course of study, so long as the period has not been
previously extended by TEQSA. Item 26 removes the words 'so long as the period
has not been previously extended by TEQSA'. This will enable TEQSA to extend the
period of accreditation more than once, just as Item 22 provides this capacity in
relation to extensions of provider registration and for the same reasons.
Item 27
Section 183 of the TEQSA Act contains a table setting out those decisions of TEQSA
that are reviewable decisions that may be reviewed by the Administrative Appeals
Tribunal following a process of internal review by TEQSA. Item 27 adds a new
reviewable decision category to that table - that is, decisions under section 38 not to
change the category in which a registered higher education provider is registered
(see Item 23).
Item 28
Division 2 of Part 10 of the TEQSA Act concerns information management and
consists of the following subdivisions:
Subdivision A (restrictions on the disclosure or use of information)
Subdivision B (information sharing).
24
Item 28 adds a new Subdivision C (student records), consisting of the following new
sections:
section 197AA (higher education student records to be provided to TEQSA)
section 197AB (TEQSA may request higher education student records)
section 197AC (provision of higher education student records to another
registered higher education provider)
section 197AD (TEQSA's management of higher education student records)
section 197AE (compensation)
These provisions will enable TEQSA to take custody of the academic records of a
higher education provider that closes, ensuring that past students of the provider will
have guaranteed and simpler access to their records into the future. Such records
are often needed by a student to facilitate their enrolment in a course with another
provider, or to verify the units undertaken or qualifications awarded for an employer.
The provisions in sections 197AA to 197AE are modelled on similar authority
provided to the Australian Skills Quality Authority to assist vocational education and
training students in sections 211 to 214 of the National Vocational Education and
Training Regulator Act 2011 (NVETR Act).
While not explicitly stated in the provisions, students will have access to their own
personal information held by TEQSA by virtue of their rights under the Privacy Act
1988 and the APPs under that act, to which TEQSA, as an APP entity, is subject.
APP 12 (access to personal information) requires an APP entity that holds personal
information about an individual to give the individual access to that information on
request. APP 12 also sets out minimum access requirements, including the time
period for responding to an access request, how access is to be given, and that a
written notice, including the reasons for the refusal, must be given to the individual if
access is refused.
Section 197AA (higher education student records to be provided to TEQSA)
Subsection 197AA(1) provides that if:
an entity is a registered higher education provider has effectively ceased to
operate; or
an entity's registration as a registered higher education provider is cancelled.
then TEQSA may, by written notice given to a person who is, or was, an executive
officer of the entity, require the person to provide to TEQSA with a copy of the higher
education student records (see Item 21) relating to an entity as are specified in the
notice, within the period specified in the notice.
Subsection 197AA(2) provides that the period specified in the notice must be at least
14 days after the notice is given.
Subsection 197AA(3) provides that a person commits an offence (subject to a
penalty of 150 penalty units), where that person possesses or controls higher
education student records specified in a notice issued to them under subsection
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197AA(1), and fails to comply with that notice (the value of a penalty unit is currently
$222).
Subsection 197AA(4) is a civil penalty (of up to 300 penalty units) provision, which is
contravened where a person who possesses or controls higher education student
records specified in a notice issued to them under subsection 197AA(1), fails to
comply with that notice.
These penalties are consistent with 'A guide to framing Commonwealth offences,
infringement notices and enforcement powers', published by the Attorney-General's
Department, as they are consistent with existing similar offences. In particular, these
penalties are consistent with subsections 211(3) and 211(4) of the National
Vocational Education and Training Regulator Act 2011.
These penalties are necessary to ensure compliance with the notices provided by
TEQSA, so that students are able to access their student records and continue their
education or gain employment. The size of the penalties is reasonable and
proportionate, and reflect the potential harm to students and the reputation of the
Australian higher education system of non-compliance. The penalties are also
consistent with comparable offences. For example, the penalties created by this
section are the same as those applicable to an executive officer or high managerial
agent of a vocational education and training provider for a comparable offence under
section 211 of the NVETR Act.
Section 197AB (TEQSA may request higher education student records)
Section 197AB entitles TEQSA to issue a notice in writing to a person (where that
person is not, and was not, an executive officer of the entity) it considers may hold
higher education student records relating to an entity, requesting the person provide
a copy of those records specified in the notice to TEQSA where:
an entity that is a registered higher education provider has effectively ceased
to operate; or
an entity's registration as a registered higher education provider is cancelled
This section will enable TEQSA to request copies of student records that may be
held by someone other than an executive officer or former executive officer of a
provider that has ceased operating. This is necessary as, once a provider closes,
custody of the former provider's assets, including historical student records and data
may pass to a range of other individuals or entities, including liquidators or relatives.
Section 197AC (transfer of higher education student records to another registered
higher education provider)
Section 197AC facilitates the transfer of higher education student records held by
one registered higher education provider to be transferred to another registered
higher education provider, where a student transfers providers.
26
Section 197AC provides that if a person (i.e. student) is enrolled in an accredited
course provided by an entity that is a (first) registered higher education provider and
then that person transfers their enrolment to a different (second) registered higher
education provider, then:
the person may request the first registered higher education provider provide
a copy of the higher education student records the first provider holds about
the person to the second registered higher education provider; or
the second registered higher education provider may, in writing, request the
first registered higher education provider provide a copy of the higher
education student records the first provider holds about the person to the
second registered higher education provider.
Section 197AD (TEQSA's management of higher education student records)
Section 197AD facilitates TEQSA providing a copy of relevant higher education
student records to a registered higher education provider where a student requests
this to occur if:
the person to whom the record relates has enrolled, or is seeking to enrol, in
an accredited course with the provider and gives TEQSA a written request
asking it to provide the record to the provider; or
with the consent of the person to whom the record relates, the provider gives
TEQSA a written request asking it to provide a copy of the record to the
provider because the person has enrolled, or is seeking to enrol, in one of the
accredited courses it provides.
Section 197AE (compensation)
Subsection 197AE(1) provides that, if the operation of section 197AA would result in
an acquisition of property from a person otherwise than on just terms, the
Commonwealth is liable to pay a reasonable amount of compensation to the person,
within the meaning of section 51(xxxi) of the Constitution. This is included to remove
any doubt about the validity of new section 197AA.
Subsection 197AE(2) specifies that, if the Commonwealth and the person do not
agree on the amount of the compensation, the person may institute proceedings in
the Federal Court for the recovery from the Commonwealth of such reasonable
amount of compensation as the court determines.
Item 29
Item 29 inserts a new section 204A into the TEQSA Act.
Subsection 204A(1) specifies that a licence must not be issued for the use of a
domain name with either:
the word "university" in the domain name; or
27
a word or expression that has the same or similar name to the word
"university" in the domain name
and where the domain name includes an Australian top level domain (such as ".au")
unless there is an approval in force under subsection 204A(2).
Subsection 204A(2) specifies that the Minister may, in writing, give an approval for
the purposes of subsection 204A(1).
Subsection 204A(3) specifies that the Minister may delegate the power under
subsection 204A(2) to an SES employee, or acting SES employee, in the
Department.
Subsection 204A(4) specifies that the Minister's approval is not a legislative
instrument.
Subsection 204A(5) specifies that section 204A relies on the Commonwealth's
legislative power under paragraph 51(v) of the Constitution (the power to make laws
with respect to postal, telegraphic, telephonic, and other like services).
Item 30
Item 30 is an application provision which provides as follows:
the amendment made to section 37A of the TEQSA Act (see Item 22) applies
to an extension of a higher education provider's registration given on or after
the commencement of Item 30, whether the registration occurred before, on
or after that commencement;
the amendments made to sections 38, 40 and 183 of the TEQSA Act (see
Items 23, 24, 25 and 27) apply to decisions about not changing provider
registration category made on or after the commencement of Item 30, whether
an application to change provider registration category was made before, on
or after that commencement;
the amendment made to section 57A of the TEQSA Act (see Item 26) applies
to an extension of a period of accreditation of a course of study given on or
after the commencement of Item 30, whether the accreditation occurred
before, on or after that commencement;
new section 197AA of the TEQSA Act (see Item 28) concerning providing
copies of higher education student records to TEQSA applies in relation to:
o a registered higher education provider that effectively ceases to
operate on or after the commencement of Item 30
o the cancellation of a registered higher education provider's registration
on or after the commencement of Item 30;
new section 197AB of the TEQSA Act (see Item 28) concerning TEQSA
requesting copies of higher education student records applies in relation to:
o a registered higher education provider that effectively ceases to
operate on or after the commencement of Item 30
o the cancellation of a registered higher education provider's registration
before, on or after the commencement of Item 30;
28
new paragraph 197AC(b) of the TEQSA Act (see Item 28) concerning the
provision of copies of higher education student records to another registered
higher education provider, applies where the person to whom the records
relate transfers to the new (second) provider on or after the commencement
of Item 30, irrespective of whether the person's enrolment with the original
(first) provider occurred before, on or after that commencement; and
New section 204A of the TEQSA Act (see Item 29) concerning issuing licences for
the use of a domain name with the words 'university' and '.au', applies in relation to
the issue of licences on or after the commencement of Item 30.
29
Schedule 2 - Indigenous
student assistance grants
Summary
Schedule 2 to the Bill amends certain sections in Part 2-2A (Indigenous student
assistance grants) and other parts of HESA to replace references to 'Indigenous
students' with 'Indigenous persons', and to clarify the purpose for which grants under
Part 2-2A may be made to higher education providers. These amendments confirm
the existing arrangements provided for by Part 2-2A of HESA that providers can use
Indigenous student assistance grants to assist prospective Indigenous students as
well as existing Indigenous students.
Detailed explanation
Higher Education Support Act 2003
Items 1 and 2 - Paragraph 3-5(1)(aa), Sections 8-1 and 38-1
Items 1 and 2 amend paragraph 3-5(1)(aa) and sections 8-1 and 38-1 of HESA to
replace references to 'Indigenous students' with references to 'Indigenous persons.'
These are consequential amendments due to items 3 and 4.
Item 3 - Paragraph 38-10(1)(a)
Item 3 amends paragraph 38-10(1)(a) of HESA to replace the reference to
'Indigenous students' with the words 'Indigenous persons (who may or may not be
students)'. This amendment confirms that Table A and Table B providers are eligible
for Indigenous student assistance grants for the purpose of assisting prospective
Indigenous students as well as existing Indigenous students undertaking higher
education.
Item 4 - Paragraph 38-10(1)(b)
Item 4 replaces paragraph 38-10(1)(b) of HESA to confirm that Table A and Table B
providers are eligible for Indigenous student assistance grants for the purposes of
increasing the number of:
Indigenous persons enrolling in courses leading to higher education awards;
and
students who are Indigenous persons progressing in and completing courses
leading to higher education awards.
30
Examples of activities that are consistent with this purpose can be found in the
explanatory memorandum to the Higher Education Support Legislation Amendment
(2016 Measures No. 1) Bill 2016.
Item 5 - Subclause 1(1) of Schedule 1
Item 5 inserts a new definition for Indigenous person into Schedule 1 of HESA, being
the same definition as in the Indigenous Education (Targeted Assistance) Act 2000.
Under that Act, 'Indigenous person' means:
(a) a member of the Aboriginal race of Australia; or
(b) a descendant of the Indigenous inhabitants of the Torres Strait Islands.
31
ATTACHMENT A
Regulation Impact Statement
What's in a Name? Review of the Higher Education
Provider Category Standards
32