Commonwealth of Australia Explanatory Memoranda

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HIGHER EDUCATION LEGISLATION AMENDMENT (PROVIDER CATEGORY STANDARDS AND OTHER MEASURES) BILL 2020

                           2020-2021




 THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




               HOUSE OF REPRESENTATIVES




 HIGHER EDUCATION LEGISLATION AMENDMENT
(PROVIDER CATEGORY STANDARDS AND OTHER
           MEASURES) BILL 2020




     SUPPLEMENTARY EXPLANATORY MEMORANDUM




   Amendments to be Moved on Behalf of the Government




   (Circulated by the 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 Government amendments to the Higher Education Legislation
Amendment (Provider Category Standards and Other Measures) Bill 2020
(the Bill) are required to replace item 29 of the Bill to insert a new section
204A of the Tertiary Education Quality and Standards Agency Act 2011. The
new provision will require the approval of the Minister for Education to use an
Australian Internet domain name that includes the word 'university' or words
or expressions with the same or similar meaning that are specified in a
legislative instrument. This amendment is intended to ensure that only those
entities that are authorised to use the word 'university,' or its derivatives, when
registering a domain name, can do so.

The factors that the Minister must take into account when making an approval
decision will be set out in a legislative instrument.

Financial Impact

The Government amendments will have no financial impact.




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             PROPOSED GOVERNMENT AMENDMENTS
The Government proposes the following amendments to the Bill.

Amendment (1) removes the commencement date for Schedule 1, item 29
listed at table item 3A, and substitutes a new commencement date. The new
commencement date for new item 29 will be seven days after the Act receives
the Royal Assent.

Amendment (2) removes item 29 of Schedule 1 and substitutes a new item
29.

New subsection 204A(1) provides that a person must not use a domain name
with either:
      the word 'university'; or
      a word or expression that has the same or a similar meaning to the
       word 'university' and that is determined in an instrument under new
       subsection 204A(3);
in the domain name, and where that domain name includes an Australian top-
level domain, unless there is an approval in force under new subsection
204A(4) in relation to the person's use of that domain name.
This means that if a person uses a domain name without approval, the
licensor can prevent that person from continuing to use that domain name. It
also means that if a domain name is transferred to a new person, that person
would need to seek approval before using the domain name.
New subsection 204A(2) specifies that subsection 204A(1) applies in relation
to a person's use of a domain name on or after the commencement of section
204A if the licence for the use of that domain name was issued on or after the
commencement and no licence for the use of that domain name had been
issued before that commencement to the licensee of the licence referred to in
paragraph (a). This means that holders of an existing domain name of a kind
specified in subsection 204A(1) (such as universities who are renewing their
existing domain name) will not be required to seek authority to continue using
that domain name.
New subsection 204A(3) provides that the Minister may, by legislative
instrument, determine words or expressions for the purposes of subparagraph
(1)(a)(ii). This will allow the Minister to provide clarity to stakeholders as to the
words or expressions that are to be considered similar to university. It is
anticipated that common expressions that are used to refer to university, such
as "uni", may be specified in the instrument. Examples could include "uni",
where this is intended to mean "university", or foreign translations of the word
"university". It would also allow the Minister to respond flexibly to new words
or expressions that are similar to university that may be used improperly, as
they emerge.


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New subsection 204A(4) states that the Minister may, in writing, approve a
person's use of a specified domain name. It further states that the Minister
may give an approval on the Minister's own initiative or on application. This
accounts for the variety of ways that Ministerial approval may be sought.
New subsection 204A(5) provides that the Minister must give a copy of an
approval granted under new subsection 204A(4) to be given to the person and
the licensor that issues licenses for the use of a domain name to which
paragraphs (1)(a) and (b) apply. The intention of this provision is that a copy
of an approval will be given both to the person who seeks to use the domain
name and to the entity to which that person has applied, or will be applying to,
for the licence to use the relevant domain name.
New subsection 204A(6) specifies that an approval under new subsection
204A(4) comes into effect at the time it is given.
New subsection 204A(7) specifies that, if the Minister refuses to give the
approval, the Minister must give written notice of the refusal and of the
reasons for the refusal to the person and the licensor that issues licenses for
the use of a domain name to which paragraphs (1)(a) and (b) apply. The
intention of this provision is that a copy of a refusal to give approval, and
statement of reasons for the refusal, will be given both to the person who
seeks to use the domain name and to the entity to which that person, has
applied, or will be applying, to for the licence to use the relevant domain
name. This will ensure the licensor has the information it needs to prevent the
use of the domain name if the Minister has not approved its use.
New subsection 204A(8) provides that, in deciding whether or not to give an
approval under subsection 204A(4), the Minister must have regard to:
      whether the licensee is a registered higher education provider; and
      the matters determined in an instrument under subsection 204A(10).
This will allow the Minister to specify additional matters that will be taken into
account when considering whether to grant approval. This could include, for
example, whether the person already has approval in place for a company or
business name registered in Australia or overseas, or has a trademark over
words or expressions that are included in a proposed domain name.
New subsection 204A(9) states that subsection 204A(8) does not limit the
matters to which the Minister may have regard.
New subsection 204A(10) specifies that the Minister must, by legislative
instrument, determine matters for the purposes of paragraph (8)(b).
New subsection 204A(11) provides that the Minister may, in writing, request
the licensor that issues licences for the use of a domain name to which
paragraphs (1)(a) and (b) apply to give the Minister the following details in
relation to the period specified in the request:
      the name of each person to whom such a licence has been issued;
      the domain name covered by the licence; and
      contact details for the person to the extent known by the licensor.


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This will allow the Minister to request only the information necessary to
assess whether to grant an approval to a particular person's use of a domain
name, or to seek further information from the applicant if necessary. This
disclosure may include personal information (for example the contact details
of the person who seeks to use the domain name), however, the intention is
that any disclosure will be restricted to information that is reasonable and
proportionate to the policy objective or preventing misuse of the word
university or words or expressions with the same or similar meaning in
domain names.
New subsection 204A(12) states that the licensor must comply with a request
under new subsection 204A(11).
New subsection 204A(13) provides that the Minister may, in writing, delegate
the Minister's functions and powers under this section (except new
subsections 204A(3) and (10)) as specified in the subsection. This will allow
delegates in the Department of Education, Skills and Employment to make
approval decisions, for example.
New subsection 204A(14) clarifies that an approval under subsection 204A(4)
is not a legislative instrument, as each approval will be an administrative,
rather than legislative, decision.
Amendment (3) removes subitem (7) of Schedule 1, item 30.




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