Commonwealth of Australia Explanatory Memoranda

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TERTIARY EDUCATION QUALITY AND STANDARDS AGENCY (CHARGES) BILL 2021

                           2019-2020-2021




   THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




                               SENATE




TERTIARY EDUCATION QUALITY AND STANDARDS
        AGENCY (CHARGES) BILL 2021




        ADDENDUM TO THE EXPLANATORY MEMORANDUM




 THIS ADDENDUM ADDRESSES MATTERS RAISED BY THE SENATE
       STANDING COMMITTEE FOR THE SCRUTINY OF BILLS




 (Circulated by the authority of the Minister for Education and Youth,
                   the Honourable Alan Tudge MP)
Senate Standing Committee for the Scrutiny of Bills

In Scrutiny Digest No.8 of 2021, the Senate Standing Committee for the Scrutiny of
Bills requested the Minister's advice about why it is considered necessary and
appropriate to give the Minister a broad discretionary power to provide for
exemptions from the proposed registered higher education provider charge in
delegated legislation and whether the Bill can be amended to include at least high-
level guidance on the face of the primary legislation regarding when it will be
appropriate to provide for such exemptions.

In Scrutiny Digest No. 9 of 2021, the Committee requested that key information
provided by the Minister to the Committee in response to its request for advice be
included in an Addendum to the Explanatory Memorandum to the Bill. That
information is as follows.


Why it is considered necessary and appropriate to give the Minister a broad
discretionary power to provide for exemptions from the proposed registered higher
education provider charge in delegated legislation.

It is appropriate to include the capacity for exemptions, should they be necessary, in
the instrument that defines the parameters of the charge. Having an exemption
power in delegated legislation provides the flexibility necessary for the Government
to be responsive to the needs of higher education providers, either as a whole or for
particular classes of providers, and to act quickly if needed. The COVID-19
pandemic has provided numerous examples where the Government needed to
respond quickly to provide targeted financial relief to particular groups. This included,
for example, the waiver or refund of all of TEQSA's regulatory fees for existing higher
education providers from 1 January 2020 to 31 December 2021.

Any such waiver, should it be instituted, would necessarily be consistent with the
legislative intent outlined in the Bill and the Government's overarching policy
framework, including the Australian Government Charging Framework. The latter
requires that entities that create the demand for a regulatory function should
contribute to the cost of regulation through cost recovery unless the Government has
decided to fund that activity. A decision to waive collection of the annual charge for a
period of time or for a particular class of higher education providers, could not be
taken lightly or without careful consideration.


Whether the bill can be amended to include at least high-level guidance on the face
of the primary legislation regarding when it will be appropriate to provide for such
exemptions.

The Government does not consider it is necessary to amend the bill to provide
guidance on the application of a waiver provision. As outlined above, any exercise of
such a power could only be done after careful consideration and consistent with the
legislative intent and the Australian Government's overall cost recovery policy.



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