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2022-2023-2024-2025
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
UNIVERSITIES ACCORD (NATIONAL HIGHER EDUCATION CODE TO PREVENT AND RESPOND
TO GENDER-BASED VIOLENCE) BILL 2025
UNIVERSITIES ACCORD (NATIONAL HIGHER EDUCATION CODE TO PREVENT AND RESPOND
TO GENDER-BASED VIOLENCE) (CONSEQUENTIAL AMENDMENTS) BILL 2025
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Education, the Hon Jason Clare MP)
TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................................ I
OUTLINE ................................................................................................................................. 1
FINANCIAL IMPACT STATEMENT.................................................................................. 3
CONSULTATION ................................................................................................................... 3
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS .................................... 4
Overview of the Bills ........................................................................................................................................ 4
Human rights implications ............................................................................................................................... 6
Conclusion ..................................................................................................................................................... 13
NOTES ON CLAUSES--BILL ............................................................................................ 14
NOTES ON CLAUSES - CONSEQUENTIAL BILL ........................................................ 60
i
UNIVERSITIES ACCORD (NATIONAL HIGHER EDUCATION CODE TO PREVENT AND RESPOND
TO GENDER-BASED VIOLENCE) BILL 2025
UNIVERSITIES ACCORD (NATIONAL HIGHER EDUCATION CODE TO PREVENT AND RESPOND
TO GENDER-BASED VIOLENCE) (CONSEQUENTIAL AMENDMENTS) BILL 2025
OUTLINE
The Government is taking strong action to prevent and respond to gender-based violence in
higher education.
The Universities Accord (National Higher Education Code to Prevent and Respond to
Gender-based Violence) Bill 2025 (the Bill) will establish a new standalone regulatory
framework which seeks to reduce the incidence of gender-based violence, prioritise safety,
proactively strengthen prevention efforts, improve the response to gender-based violence
and hold providers accountable for their performance, including in student accommodation.
The Bill is being introduced with the Universities Accord (National Higher Education Code to
Prevent and Respond to Gender-based Violence) (Consequential Amendments) Bill 2025
(Consequential Bill).
Over the last several years evidence has shown that gender-based violence - and in
particular sexual violence and harassment - continues to occur in higher education
communities at significant rates. Many students and staff do not know where to seek
support or make a formal complaint to their higher education provider, and those that do
are often dissatisfied with the process.
Students and staff deserve to feel and be safe in higher education and providers must do
more to prevent and respond to gender-based violence.
The Bill provides a power for the Minister to make the National Higher Education Code to
Prevent and Respond to Gender-based Violence (National Code) as a legislative instrument.
The National Code will set standards and requirements that higher education providers
must meet to ensure:
• study, work, social and living environments are safe, respectful and inclusive for staff
and students; and
• providers work to prevent, reduce and eliminate gender-based violence to the
greatest extent possible; and
• providers effectively respond to gender-based violence in a way that prioritises and
protects safety, health and wellbeing; and
• providers address the factors that drive and contribute to gender-based violence;
and
• providers have effective governance arrangements in place to prevent and respond
to gender-based violence across all of their operations and at all levels of their
organisations.
1
It is proposed that accountability for compliance with the National Code will sit at the
highest level of the provider's organisation, the Vice-Chancellor, Chief Executive Officer or
equivalent leader of the institution, and that regular reporting to a provider's governing
body on incident data, and efforts to prevent and respond to gender-based violence will be
required.
Change is also proposed to be driven by requirements in the National Code for providers to
develop a Gender Equality Action Plan, Gender Impact Assessments and provide
evidence-based education and training on the factors that drive and contribute to gender-
based violence.
It is also proposed the National Code will require policies, procedures and processes for
responding to gender-based violence in a trauma informed way and ensuring key functions
are undertaken by people who have the appropriate skills and expertise, also ensuring that
victim-survivors receive a timely and expert response from their institution.
This will help to drive cultural change and improve experiences and outcomes for people
who disclose their experience of gender-based violence, strengthening their autonomy to
ensure they are heard and appropriately supported.
To monitor and enforce the National Code, a new specialist gender-based violence unit is
being established within the Department of Education. The unit will provide guidance,
education and advice to support higher education providers to understand and comply with
the National Code.
The Bill provides the Secretary with a range of powers to enable the unit to monitor and
respond to non-compliance with the Bill or the National Code, including
• monitoring and investigation powers;
• the ability to request information;
• the power to issue compliance notices, infringement notices and to enter into
enforceable undertakings; and
• the ability to seek civil penalties and injunctions through a court.
To strengthen provider transparency and accountability, the Bill enables the Secretary to
disclose information to the public about a higher education provider's compliance with the
Bill and the National Code.
Annual reporting on the unit's operations and performance of functions will be publicly
available and tabled in both Houses of Parliament.
The Secretary will be able to share information with relevant regulatory and other bodies
where relevant to their functions and powers, and for certain purposes.
The Consequential Bill amends the Higher Education Support Act 2003 (HESA) to make
compliance with the National Code a quality and accountability requirement for higher
education providers approved under HESA. This will mean that a higher education provider's
2
non-compliance with National Code may also have consequences for that provider's
approval under HESA. For example, the Minister for Education could take action to suspend
or revoke a provider's approval under Division 22 of HESA.
The National Code is a key measure of the Action Plan Addressing Gender-based Violence in
Higher Education (Action Plan), agreed to by all Education Ministers on 23 February 2024.
The National Student Ombudsman, another key measure of the Action Plan, commenced on
1 February 2025 and enables higher education students to escalate complaints about the
actions of their higher education provider, including gender-based violence complaints.
Together, these measures will ensure greater oversight and accountability of higher
education providers and help drive the social change we need to see in the higher education
sector to prevent and respond to gender-based violence.
FINANCIAL IMPACT STATEMENT
The Government has provided $18.7 million over four years from 2024-25 to establish the
National Code and a specialist unit in the Department of Education to monitor and enforce
compliance with the National Code.
CONSULTATION
Public consultation was undertaken on the idea of a National Code between
22 November 2023 to 31 January 2024 as part of consultation on the draft Action Plan
addressing gender-based violence in higher education. This included targeted consultation
with students and victim-survivor advocates, gender-based violence experts, the higher
education sector, student accommodation providers and a range of Australian Government
agencies.
Further consultation on the development of the draft National Code, including the proposed
regulatory framework for monitoring and enforcing compliance with the National Code, was
undertaken through public consultation on an issues paper between 29 May and 28 June
2024. Targeted consultation was also undertaken during June to August 2024 with students
and victim-survivor advocates, the higher education sector, subject matter experts, states
and territories and relevant Australian Government agencies, and through an Expert
Reference Group. The Expert Reference Group comprises of leaders from higher education,
violence against women and student accommodation sectors including victim-survivor
advocates.
Overall, there is strong support from stakeholders for the establishment of the Bill and the
National Code, particularly from students and victim-survivors of gender-based violence.
The higher education sector is also broadly supportive of the establishment of the National
Code.
3
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Universities Accord (National Higher Education Code to Prevent and Respond to Gender-
based Violence) Bill 2025
Universities Accord (National Higher Education Code to Prevent and Respond to Gender-
based Violence) (Consequential Amendments) Bill 2025
The Universities Accord (National Higher Education Code to Prevent and Respond to
Gender-based Violence) Bill 2025 and the Universities Accord (National Higher Education
Code to Prevent and Respond to Gender-based Violence) (Consequential Amendments) Bill
2025 (together, the Bills) are 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 Bills
The Government is taking strong action to prevent and respond to gender-based violence in
higher education.
The Universities Accord (National Higher Education Code to Prevent and Respond to
Gender-based Violence) Bill 2025 (the Bill) will establish a new standalone regulatory
framework which seeks to reduce the incidence of gender-based violence, prioritise safety,
proactively strengthen prevention efforts, improve the response to gender-based violence
and hold providers accountable for their performance, including in student accommodation.
The Bill is being introduced with the Universities Accord (National Higher Education Code to
Prevent and Respond to Gender-based Violence) (Consequential Amendments) Bill 2025
(Consequential Bill).
Over the last several years evidence has shown that gender-based violence - and in
particular sexual violence and harassment - continues to occur in higher education
communities at significant rates. Many students and staff do not know where to seek
support or make a formal complaint to their higher education provider, and those that do
are often dissatisfied with the process.
Students and staff deserve to feel and be safe in higher education and providers must do
more to prevent and respond to gender-based violence.
The Bill provides a power for the Minister to make the National Higher Education Code to
Prevent and Respond to Gender-based Violence (National Code) as a legislative instrument.
The National Code will set standards and requirements that higher education providers
must meet to ensure:
4
• study, work, social and living environments are safe, respectful and inclusive for staff
and students; and
• providers work to prevent, reduce and eliminate gender-based violence to the
greatest extent possible; and
• providers effectively respond to gender-based violence in a way that prioritises and
protects safety, health and wellbeing; and
• providers address the factors that drive and contribute to gender-based violence;
and
• providers have effective governance arrangements in place to prevent and respond
to gender-based violence across all of their operations and at all levels of their
organisations.
It is proposed that accountability for compliance with the National Code will sit at the
highest level of the provider's organisation and regular reporting to a provider's governing
body on incident data, and efforts to prevent and respond to gender-based violence will be
required.
Change is also proposed to be driven by requirements in the National Code for providers to
develop a Gender Equality Action Plan, Gender Impact Assessments and provide
evidence-based education and training on the factors that drive and contribute to gender-
based violence.
It is also proposed the National Code will require policies, procedures and processes for
responding to gender-based violence in a trauma informed way and ensuring key functions
are undertaken by people who have the appropriate skills and expertise.
This will help to drive cultural change and improve experiences and outcomes for people
who disclose their experience of gender-based violence, strengthening their autonomy to
ensure they are heard and appropriately supported.
To monitor and enforce the National Code, a new specialist gender-based violence unit is
being established within the Department of Education. The unit will provide guidance,
education and advice to support higher education providers to understand and comply with
the National Code.
The Bill provides the Secretary with a range of powers to enable the unit to monitor and
respond to non-compliance with the Bill or the National Code, including
• monitoring and investigation powers;
• the ability to request information;
• the power to issue compliance notices, infringement notices and to enter into
enforceable undertakings; and
• the ability to seek civil penalties and injunctions through a court.
5
To strengthen provider transparency and accountability, the Bill enables the Secretary to
disclose information to the public about a higher education provider's compliance with the
Bill and the National Code.
Annual reporting on the unit's operations and performance of functions will be publicly
available and tabled in both Houses of Parliament.
The Secretary will be able to share information with relevant regulatory and other bodies
where relevant to their functions and powers, and for certain purposes.
The Consequential Bill amends the Higher Education Support Act 2003 (HESA) to make
compliance with the National Code a quality and accountability requirement for higher
education providers approved under that Act. This will mean that a higher education
provider's non-compliance with National Code may also have consequences for that
provider's approval under HESA. For example, the Minister for Education could take action
to suspend or revoke a provider's approval under Division 22 of HESA.
The National Code is a key measure of the Action Plan Addressing Gender-based Violence in
Higher Education (Action Plan), agreed to by all Education Ministers on 23 February 2024.
The National Student Ombudsman, another key measure of the Action Plan, commenced on
1 February 2025 and enables higher education students to escalate complaints about the
actions of their higher education provider, including gender-based violence complaints.
Together, these measures will ensure greater oversight and accountability of higher
education providers and help drive the social change we need to see in the higher education
sector to prevent and respond to gender-based violence.
Human rights implications
The Bills engage the following human rights:
• the right to education - article 13 of the International Covenant on Economic, Social
and Cultural Rights (ICESCR), and the Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW);
• the right to equality and non-discrimination - article 26 of the International
Covenant on Civil and Political Rights (ICCPR);
• the right to physical and mental health - article 12 of the ICESCR;
• the right to fair trial and fair hearing rights - Article 14(2), 14(3) of the ICCPR;
• the right to privacy and reputation - Article 17 of the ICCPR; and
• the right to work and rights in work - Article 6, 7 of the ICESCR, and article 14 of
CEDAW
Right to education
Article 13 of the ICESCR recognises the important personal, societal, economic and
intellectual benefits of education. Article 13 also provides that secondary education in all its
6
different forms, including higher education, shall be made generally available and accessible
to all by every appropriate means.
CEDAW requires measures to be taken to ensure, on a basis of equality of men and women,
the same conditions for access to studies and for the achievement of qualifications in
educational establishments including in pre-school, general, technical, professional and
higher technical education, as well as in all types of vocational training.
Gender-based violence can have negative impacts on the mental health, physical health and
wellbeing of people who have experienced it. For students, it can affect their ability to
remain in study.
The Bills promotes the right to education by establishing a new regulatory framework to
ensure higher education providers prevent and respond to gender-based violence in their
communities so students can reach their academic potential.
Section 15 of the Bill provides a power for the Minister of Education to make a National
Code as a legislative instrument. The National Code will set requirements that all higher
education providers must meet to ensure:
(a) study, work, social and living environments are safe, respectful and inclusive for staff
and students; and
(b) providers work to prevent, reduce and eliminate gender-based violence to the
greatest extent possible; and
(c) providers effectively respond to gender-based violence in a way that prioritises and
protects safety, health and wellbeing; and
(d) providers address the factors that drive and contribute to gender-based violence;
and
(e) providers have effective governance arrangements in place to prevent and respond
to gender-based violence across all of- their operations and at all levels of their
organisations.
The Bill provides the Secretary with a range of powers to monitor and enforce compliance
with the National Code, ensuring higher education providers are accountable in their efforts
to preventing and responding to gender-based violence.
The Consequential Bill amends HESA to make compliance with the National Code a quality
and accountability requirement for higher education providers approved under that Act.
This will mean that a higher education provider's non-compliance with National Code may
also have consequences for that provider's approval under HESA. For example, the Minister
for Education could take action to suspend or revoke a provider's approval under Division 22
of HESA. If the Minister revoked a provider's approval, then this could limit the right to
education because a student at that provider would no longer be able to receive
Commonwealth assistance and may need to cease their studies or change providers.
7
It is highly unlikely that this would ever eventuate, noting the seriousness of the Minister
taking such action under HESA. However, there are safeguards in place to ensure such
action is not taken lightly. For example, the Minister would need to comply with the process
requirements set out in Division 22 of HESA, prior to taking action to suspend or revoke a
provider's approval. This would include the Minister being satisfied that taking such action is
appropriate in the circumstances and giving the higher education provider the opportunity
to make a submission, which the Minister would then need to consider prior to making a
decision.
The changes made to HESA by the Consequential Bill are necessary to ensure the legitimate
policy objective of the Bill is achieved; that is, to ensure that higher education providers are
preventing and responding to gender-based violence.
Improving provider performance in preventing and responding to gender-based violence
will improve student safety and wellbeing, helping students to fully participate in education
which promotes the right to education.
Right to equality and non-discrimination, and rights to physical and mental health
Article 26 of the ICCPR recognises that all persons are equal before the law and are entitled
without any discrimination to the equal protection of the law. In this respect, the law shall
prohibit any discrimination and guarantee to all persons equal and effective protection
against discrimination on any ground such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other status.
Women students, First Nations students, students with disability, LGBTIQA+ students,
non-binary students and transgender students experience sexual violence at higher rates
than others1.
The UN Committee on the Elimination of All Forms of Discrimination against Women has
stated that gender-based violence, including domestic violence is a form of discrimination
that seriously inhibits women's ability to enjoy rights and freedoms on a basis of equality
with men.
Article 12 of the ICESCR requires that State Parties to the Covenant recognise the right of
everyone to the enjoyment of the highest attainable standard of physical and mental health.
The UN Committee on Economic, Social and Cultural Rights has stated that the right to
health embraces a wide range of socio-economic factors that promote conditions in which
people can lead a healthy life, extending to underlying determinants of health such as safe
and healthy working conditions.
In 2021, the National Student Survey showed that one in 20 students had been sexually
assaulted since they started university and one in six had been sexually harassed.
1
Social Research Centre, National Student Safety Survey.
8
Gender-based violence can have negative impacts on the mental health, physical health and
the wellbeing of people who experience it. For students, it can affect their ability to remain
in study. Trauma can make them less able to attend and participate in classes, in some
instances, they may withdraw from their study. For staff, the effects of gender-based
violence can result in reduced performance and absenteeism, representing a barrier to
career progression and advancement. Survey data also shows that one in 3 higher education
staff reported personal experiences of sexual harassment, and women and non-binary staff
were more likely to experience sexual harassment than men2.
The Bills promote equality and non-discrimination, and supports rights to physical and
mental health through the power to establish the National Code and the subsequent
regulation of the Bill and the National Code.
Section 16 of the Bill provides that the purpose of the National Code is to set national
standards for higher education providers in connection with preventing and responding to
gender-based violence to ensure:
(a) study, work, social and living environments are safe, respectful and inclusive for staff
and students; and
(b) providers work to prevent, reduce and eliminate gender-based violence to the
greatest extent possible; and
(c) providers effectively respond to gender-based violence in a way that prioritises and
protects safety, health and wellbeing; and
(d) providers address the factors that drive and contribute to gender-based violence;
and
(e) providers have effective governance arrangements in place to prevent and respond
to gender-based violence across all of- their operations and at all levels of their
organisations.
Gender inequality is a key driver of gender-based violence. The National Code will seek to
advance gender equality, including through proposed requirements for providers to develop
a Gender Equality Action Plan, Gender Impact Assessments and provide evidence-based
education and training on the drivers of gender-based violence.
Section 26 of the Bill provides that the Secretary may provide guidance, education and
advice to support higher education providers to understand the causes of, and the factors
that contribute to gender-based violence, including examples of best practice in the
prevention and response to gender-based violence.
The Bill also provides the Secretary with a range of powers to hold providers accountable
and ensure they are complying with the Bill and the National Code, including:
2
National Tertiary Education Union (NTEU), Sexual harassment in the workplace, NTEU, 2023.
9
o monitoring (section 35) and investigation powers (section 36)
o the ability request information and documents (sections 22 and 27)
o power to issue compliance notices (section 32), infringement notices (section 38)
and to enter into enforceable undertakings (section 39), and
o ability to seek civil penalties (section 37) and injunctions through a court (section
40).
Further, the changes made by the Consequential Bill will also provide another mechanism
for the Commonwealth to encourage and ensure compliance with the National Code by
HESA approved providers and would provide an additional regulatory tool for the
department in relation to serious and sustained non-compliance.
Through the regulation of the Bill and the National Code instrument, higher education
providers' performance in preventing and responding to gender-based violence will be
improved, which will help to reduce the incidence of gender-based violence. As a result, the
Bills promotes the right to equality and non-discrimination, and supports the rights to
physical and mental health.
Right to a fair trial and hearing
Article 14(1) of the ICCPR protects the right to a fair and public criminal trial, and a public
hearing in civil proceedings. Fair trial and fair hearing rights include the right that all persons
are equal before the courts and tribunals and the right to a fair and public hearing before a
competent, independent and impartial court or tribunal established by law.
The Bill empowers the Secretary to request information and documents under section 27
for the purposes of the Secretary's functions under, or the higher education provider's
compliance with, the Bill or the National Code. The Bill abrogates the privilege against
self--incrimination and penalty privilege by providing that a person is not excused from
giving information or producing a document on the grounds that it may incriminate them or
expose them to a penalty. The abrogation of this privilege is necessary to ensure the
Secretary can appropriately monitor and enforce compliance with the Bill and the National
Code, noting individuals may be in possession of documents relevant to these functions
which may also incriminate them.
The abrogation of the privilege against self-incrimination operates together with a use
immunity, which limits the use of potentially self-incriminating information, documents or
things obtained directly or indirectly as a consequence of giving the information or
producing the document, copy or thing in civil proceedings or criminal proceedings, other
than proceedings related to sections 137.1, 137.2 or 149.1 of the Criminal Code. This
ensures that any information or document, copy, or thing, produced will be admissible only
in a very limited range of proceedings related to misleading or obstructing Commonwealth
10
officials. Allowing evidence to be admissible in these proceedings is necessary to safeguard
the integrity of information being provided to the Secretary.
Right to privacy and reputation
Article 17 of the ICCPR prohibits arbitrary or unlawful interference with a person's privacy,
family, home or correspondence, and prohibits unlawful attacks on a person's reputation.
The right to privacy includes respect for informational privacy, including in relation to
storing, using and sharing private information, as well as the right to control the
dissemination of personal and private information. To be permissible as a matter of
international human rights law, interferences with privacy must be according to law and not
arbitrary.
The Bill would engage the right to privacy by establishing a framework under which the
Secretary may collect, use and disclose information (including personal information of
students and staff).
The Bill includes several information gathering provisions that are necessary for the
performance of the Secretary's functions and exercise of the Secretary's powers under the
Bill and National Code. While the Bill enables the collection of personal information in
particular circumstances, this collection will only occur where it is absolutely necessary to
ensure the accountability of higher education providers in preventing and responding to
gender-based violence and only in line with included safeguards.
The Minister may, under section 22 of the Bill, make rules that may provide for the
information that must be given to the Secretary, when the information must be given, the
manner and form in which the information must be given, and timeframes for the giving of
information. This section makes it clear that providers may be required to provide personal
information, which is likely to include details of a higher education provider's
Vice -Chancellor or Chief Executive Officer and details of a day-to-day contact person,
including their title, full name, phone number and email address.
It is necessary for the rules to be able to require providers to give the Secretary personal
information to ensure the Secretary has the details for relevant people at the higher
education provider who can be contacted as part of the Secretary exercising their powers
and functions under the Bill.
Under section 27 of the Bill, the Secretary will be able to request information and
documents from a person who is a higher education provider or who is or was connected to
a higher education provider for the purposes of the Secretary's functions under, or the
higher education provider's compliance with, the Bill or the National Code. For example,
student and staff records could be requested to ascertain if a higher education provider has
followed its internal policies and procedures and reflected this in practice when preventing
and addressing gender-based violence in their institution. While this power enables the
Secretary to request personal information, this information would be collected rarely and
only when the Secretary cannot reasonably ascertain a higher education provider's
11
compliance with the Bill and the National Code through other information provided by the
higher education provider. The Secretary will primary utilise de-identified and aggregated
data to determine if there are any systemic issues with the provider, rather than at an
individual level.
Section 42 of the Bill authorises the Secretary to share information with a range of
individuals and other Commonwealth bodies where it is related to the performance of their
functions and exercise of their powers, and with, State and Territory bodies, but only for
certain specific purposes. However, the Secretary may only disclose protected information
that is personal information (within the meaning of the Privacy Act 1988 (Privacy Act)) if the
Secretary is satisfied that the information will be appropriately protected after the
disclosure. This power is necessary as the Secretary may receive a complaint that includes
personal information that may need to be referred to another government agency for
action. Commonwealth agencies are required to comply with the Privacy Act and most
States and Territories have equivalent privacy legislation that applies to their State and
government agencies.
The Secretary's powers to collect, use and further disclose information are appropriate and
necessary to ensure the Secretary can effectively regulate the Bill and the National Code.
Given the serious nature of gender-based violence and the impact that it has on people who
experience it, it is critical that the Secretary is able to access relevant information and
documents to carry out their functions and powers under the Bill. Any information collected
through these processes will be handled in accordance with the Department of Education's
privacy policy (which can be found here: https://www.education.gov.au/using-site/privacy)
and the department will also continue to comply with its privacy obligations under the
Australian Privacy Principles in Schedule 1 to the Privacy Act.
Further, no personal information will be made publicly available by the Department of
Education or any other government agency. Such information will only be used internally by
the department and other Commonwealth agencies for the purposes of performing their
functions and undertaking their activities.
To the extent the Bill may limit the right to privacy, this is lawful and non-arbitrary in light of
the safeguards for protecting personal information in the Bill and other legislation.
Right to work and rights in work
Article 6 of the ICESCR states that the right to work should be protected, by providing the
worker with just and favourable conditions of work, in particular to safe working conditions,
the right to form trade unions and the right to freely choose and accept work. The right to
just and favourable conditions of work in article 7 of ICESCR includes elements of safe and
healthy working conditions.
Article 14 of CEDAW requires measures to be taken to eliminate discrimination against
women in employment in order to ensure, on a basis of equality of men and women, the
12
same rights, in particular the right to protection of health and to safety in working
conditions, including the safeguarding of the function of reproduction.
Gender-based violence can have negative impacts on the mental health, physical health and
wellbeing of the people who experience it. For staff, the effects of gender-based violence
can result in reduced performance and absenteeism, representing a barrier to career
progression and advancement.
The Bill promotes safe working conditions through the power for the Minister to establish
the National Code and the subsequent regulation of the Bill and the National Code. As
outlined in the section about the right to physical and mental health above, the National
Code will ensure that higher education providers' study, work, social and living
environments are safe, respectful and inclusive for staff and students, that providers work
to prevent, reduce and eliminate gender-based violence to the greatest extent possible and
providers effectively respond to gender-based violence in a way that prioritises and protects
safety, health and wellbeing.
The Bill provides the Secretary with a range of powers outlined in the section about the right
to equality and non-discrimination, and rights to physical and mental health above, which
will ensure higher education providers comply with the Bill and the National Code.
Through the regulation of the Bill and the National Code and alongside legislation such as
the Sex Discrimination Act 1984, and the Fair Work Act 2009, the Bill supports the rights to
work and rights in work by improving the safety of higher education provider's working
environments and supporting the safety and wellbeing of staff.
Conclusion
The Bills are compatible with human rights because they promote the protection of human
rights and to the extent that they may limit human rights, those limitations are reasonable,
necessary and proportionate.
Minister for Education, the Hon Jason Clare MP
13
UNIVERSITIES ACCORD (NATIONAL HIGHER EDUCATION CODE TO PREVENT
AND RESPOND TO GENDER-BASED VIOLENCE) BILL 2025
NOTES ON CLAUSES--Bill
Part 1--Preliminary
Division 1--Preliminary
Section 1: Short title
1. This is a formal provision specifying the short title of the Act to be the Universities
Accord (National Higher Education Code to Prevent and Respond to Gender-based
Violence) Act 2025 (the Act).
Section 2: Commencement
2. The table in this section provides the commencement date for the provisions of the
Universities Accord (National Higher Education Code to Prevent and Respond to
Gender based Violence) Bill 2025 (the Bill).
3. The whole of the Bill commences the day after the Act receives the Royal Assent.
Section 3: Objects of this Act
4. This section of the Bill sets out the objects of the Act. The Act will have three objects:
a. to reduce the incidence of gender-based violence in higher education; and
b. to establish national standards and requirements for higher education
providers to prevent and respond to gender-based violence; and
c. to establish a regulatory framework to monitor and enforce compliance with
the national standards and requirements.
Section 4: Simplified outline of this Act
5. This section provides a simplified outline of the Act. This outline is included to assist
readers to understand the substantive provisions of the Act but is not intended to be
comprehensive. It is intended that readers should rely on the substantive provisions
of the Act.
6. The outline includes a high-level description of the Bill and notes that the Bill provides
for a national code, the National Higher Education Code to Prevent and Respond to
Gender based Violence (the National Code). It explains that the National Code, which
is a legislative instrument made by the Minister, applies to higher education
providers, and can impose various requirements on them in relation to gender-based
violence. It also explains what is included in each Part of the Bill.
Division 2--Definitions
14
Section 5: Definitions
7. This section defines terms and expressions that appear in the Bill. The terms defined
are:
a. Australia: when used in a geographical sense, includes the external
Territories.
b. authorised officer: means a person appointed as an authorised officer under
section 33. Authorised officers have specified functions and powers under
Part 5 of the Bill.
c. civil penalty provision: has the same meaning as in the Regulatory Powers
(Standard Provisions) Act 2014 (Regulatory Powers Act). Subsection 79(2) of
that Act defines 'civil penalty provision' as a provision in an Act or legislative
instrument where:
i. either, the provision sets out at its foot a pecuniary penalty, or
penalties, indicated by the words 'Civil penalty'; or another provision
of an Act or a legislative instrument provides that the provision is a
civil penalty provision, or that a person is liable to a civil penalty if the
person contravenes the provision; and
ii. the provision is: a subsection, or a section that is not divided into
subsections; or a subregulation, or a regulation that is not divided into
subregulations; or a subclause (however described) of a Schedule to
an Act or of a legislative instrument; or a clause (however described)
of a Schedule to an Act, or of a legislative instrument, that is not
divided into subclauses.
d. Commonwealth body: includes a Department of State and an authority or
agency of the Commonwealth.
e. constitutional corporation: means a corporation to which paragraph 51(xx)
of the Constitution applies.
f. evidential material: has the same meaning as in the Regulatory Powers Act.
Section 39 of that Act defines 'evidential material' as any of the following:
i. a thing with respect to which an offence provision or a civil penalty
provision subject to investigation under Part 3 of the Regulatory
Powers Act has been contravened or is suspected, on reasonable
grounds, to have been contravened;
ii. a thing that there are reasonable grounds for suspecting will afford
evidence as to the contravention of such an offence provision or a
civil penalty provision;
iii. a thing that there are reasonable grounds for suspecting is intended
to be used for the purpose of contravening such an offence provision
or a civil penalty provision.
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g. higher education provider: means a registered higher education provider
(within the meaning of the Tertiary Education Quality and Standards Agency
Act 2011 (TEQSA Act)) that is:
i. a constitutional corporation; or
ii. a body corporate that is established by or under a law of the
Commonwealth or a Territory.
Section 5 of the TEQSA Act defines 'registered higher education provider' as a
higher education provider registered under Part 3 of that Act and listed on
the Register under paragraph 198(1)(a) of that Act. The National Register of
Higher Education Providers is a register established and maintained by TEQSA
consistent with section 198 of the TEQSA Act. The Register is publicly
available and can be found here https://www.teqsa.gov.au/national-register.
h. national code: means the National Higher Education Code to Prevent and
Respond to Gender-based Violence in force under Part 3 of the Bill.
i. National Student Ombudsman: means the National Student Ombudsman
established by section 21AB of the Ombudsman Act 1976.
j. premises: includes the following:
i. a structure, building, vehicle, vessel or aircraft;
ii. a place (whether or not enclosed or built on);
iii. a part of a thing referred to in paragraph (i) or (ii).
k. protected information: has the meaning given by subsection 42(5).
l. Regulatory Powers Act: means the Regulatory Powers (Standard Provisions)
Act 2014.
m. rules: means rules made by the Minister for Education (Minister), who will be
responsible for administering the Act, under section 50.
n. Secretary: means the Secretary of the Commonwealth Department of
Education (department) which will be the department responsible for
administering the Bill.
o. State or Territory body: includes a Department of State and an authority or
agency of the State or Territory.
p. TEQSA: (short for Tertiary Education Quality and Standards Agency) has the
same meaning as in the TEQSA Act.
q. TEQSA Act: means the Tertiary Education Quality and Standards Agency Act
2011.
8. This section also defines the term gender-based violence, for the purposes of the Bill
and the National Code, as any form of physical or non-physical violence, harassment,
abuse or threats, based on gender, that results in, or is likely to result in, harm,
coercion, control, fear or deprivation of liberty or autonomy.
9. Gender-based violence is intended to be interpreted broadly to encompass the many
and varied forms and types of violence, including but not limited to:
a. physical violence or abuse;
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b. sexual violence, abuse or harassment;
c. sex-based harassment;
d. emotional or psychological abuse;
e. verbal abuse or threats;
f. economic or financial abuse;
g. stalking or monitoring;
h. intimate partner violence;
i. family and domestic violence;
j. technology-facilitated abuse;
k. coercive control;
l. sexual trafficking;
m. reproductive coercion;
n. female genital mutilation;
o. forced medical interventions;
p. forced marriage;
q. a pattern or patterns of abusive behaviour.
10. The definition is broad and the above is a non-exhaustive list, because gender-based
violence has evolved over time, such as technology-facilitated abuse, and will
continue to evolve in ways that are not yet known.
11. Gender-based violence is a complex, society-wide problem arising largely from
strongly embedded and systemic social and cultural norms, practices, structures and
attitudes based on gender, and results in harm. Gender-based violence relates to
power imbalances in society and the way people are not treated equally because of
gender.
12. Gender is intended to be interpreted broadly in accordance with widely understood
definitions of gender, such as the Australian Bureau of Statistics (ABS) definition of
gender in the Standard for Sex, Gender, Variations of Sex Characteristics and Sexual
Orientation Variables, 2020.
13. The definition of gender-based violence includes the words 'based on'. This is
intended to reflect that this type of violence is based on, and maintains, structural
gender inequalities, and power imbalances, and can include victimisation of women,
girls, men, boys, and people of diverse sexual orientations, gender identities, or
gender expressions.
14. For the avoidance of doubt, this does not establish a requirement for providers to
assess or otherwise prove a causal link to gender in cases of violence, and doing so
would be in direct contradiction to the objectives of this definition.
15. Accordingly, the definition recognises the systemic nature of gender-based violence,
including society-wide gender-based inequalities, rigid gender norms and
stereotypes, and gender-based discrimination in all its forms.
16. In this context, people of all genders experience gender-based violence, however,
most gender-based violence is perpetrated by men against women.
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17. This is evidenced nationally through the Personal Safety Survey 2021-22, which
shows over their lifetime, one in 3 women experience physical violence and one in 5
women experience sexual violence.
18. Within universities, this is evidenced through the 2021 National Student Safety
Survey, which shows one in five female students had experienced sexual harassment
in a university context.
19. Applying this definition requires higher education providers to take action not only
to appropriately respond to gender-based violence, but also to create the systems,
processes and cultural practices which work to prevent gender-based violence, to
develop a culture of respect, and physically and psychologically safe working,
learning and accommodation environments. The proactive approach required of
higher education providers by this definition of gender-based violence is consistent
with, and complementary to, existing duties in Commonwealth law, including the
positive duty in section 47C of the Sex Discrimination Act 1984.
20. The terms 'student' and 'student accommodation' are not defined and are intended
to take their broad ordinary meaning for the purposes of the Bill. These terms will be
defined in the National Code to support higher education providers to interpret and
apply the regulatory requirements.
21. Defining these terms in the National Code will ensure flexibility if it becomes
apparent that the definition is inappropriately limiting the scope of the National
Code or genuinely impacting providers' abilities to effectively apply the requirements
of the National Code.
22. The term 'student accommodation' is intended to be interpreted broadly in the Bill,
however, the requirements of the National Code will necessarily apply in different
ways to specific kinds of student accommodation. For example, different
requirements will be placed on higher education providers for student
accommodation they own and operate, compared to student accommodation they
otherwise control and/or are affiliated with. The different requirements for different
models of student accommodation mean it is appropriate that relevant definitions
for student accommodation sit alongside the requirements in the National Code to
reduce complexity and support providers to understand their obligations. It is also
appropriate to ensure flexibility as different models of student accommodation
emerge that need to be defined as within or outside of the scope of the National
Code.
Division 3--General application of this Act
Section 6: Crown to be bound
23. This section provides that the Bill binds the Crown in each of its capacities.
Section 7: Extension to external territories
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24. This section provides that the Bill extends to the external Territories.
Section 8: Concurrent operation of State and Territory laws
25. This section provides that the Bill is not intended to exclude or limit the operation of
a law of a State or Territory to the extent that that law is capable of operating
concurrently with the Bill. This provision has been included to clarify that the Bill is
not intended to 'cover the field' and to confirm that State and Territory laws that
include similar subject matter can continue to operate to the extent they are not
inconsistent with the Bill.
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Part 2--Basic principles for regulation
Division 1--Simplified outline of this Part
Section 9: Simplified outline of this Part
26. This section provides a brief outline of Part 2 of the Bill. It explains that Part 2 sets
out basic principles that the Secretary and authorised officers must comply with
when exercising powers under the Bill.
Division 2--Basic principles for regulation
Section 10: Basic principles for regulation
27. This section provides that the Secretary must comply with the following principles
when exercising a power under the Bill in relation to a higher education provider:
a. the principle of regulatory necessity;
b. the principle of proportionate regulation.
28. The purpose of the basic principles of regulation is to guide the Secretary and the
department in the exercise of their regulatory powers and functions and to outline
how they will exercise their powers in a proportionate way that does not burden the
higher education provider any more than is reasonably necessary. While the nature
of the two basic principles means that there may be some overlap between them,
each principle is integral to guiding the Secretary's approach to regulation. Including
regulatory principles in the Bill will ensure higher education providers have certainty
about how the Secretary will monitor and enforce compliance with the Bill and the
legislative instruments made under the Bill. These principles are similar to principles
that TEQSA applies when taking regulatory action against registered higher
education providers under the TEQSA Act.
Section 11: Principle of regulatory necessity
29. This section provides that the Secretary complies with the principle of regulatory
necessity if the Secretary's exercise of the power does not burden the higher
education provider any more than is reasonably necessary.
30. In practice, this could mean avoiding duplication of information requests by only
requesting information that the Secretary does not already hold; only seeking
clarification or engaging with a higher education provider when required or only
requesting information where there is a good reason to do so, for example when
determining compliance with the Bill and the National Code.
Section 12: Principle of proportionate regulation
31. This section provides that the Secretary complies with the principle of proportionate
regulation if the Secretary's exercise of the power is in proportion to:
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a. any non-compliance; or
b. any risk of future non-compliance;
by the higher education provider with the Bill and legislative instruments made
under the Bill.
32. In line with the principle of proportionate regulation, the Secretary may consider the
seriousness of any non-compliance by the provider, the actual or potential risk of
harm to students and staff, the likelihood of harm happening or happening again,
and the Secretary's confidence in the provider's commitment and capability to
address the non-compliance and ensure the safety of staff and students in the
future.
Section 13: Application to authorised officers
33. This section provides that Part 2 applies to an authorised officer in a corresponding
way to the way it applies to the Secretary. This means that authorised officers
appointed by the Secretary under section 33 of the Bill, must also comply with the
basic principles of regulation set out in this Part, when taking regulatory action
against higher education providers.
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Part 3--The national code
Division 1--Simplified outline of this Part
Section 14: Simplified outline of this Part
34. This section includes a brief outline of Part 3 of the Bill. It explains that Part 3
provides for the Minister to make the National Code by legislative instrument. It
further explains that the purpose of the National Code is to provide national
standards for higher education providers in connection with preventing and
responding to gender-based violence, and that the National Code may impose
requirements on higher education providers in connection with that purpose.
Division 2--The national code
Section 15: The national code
35. This section provides that the Minister may, by legislative instrument, make a
national code, to be known as the National Higher Education Code to Prevent and
Respond to Gender-based Violence.
36. Using a legislation-making power to impose the substantive regulatory requirements
on higher education providers is appropriate as the legislative instrument will
contain detailed requirements under numerous standards to ensure higher
education providers are appropriately preventing and responding to gender--based
violence in their communities, which will help to protect and promote the safety of
students and staff.
37. This legislative-making power ensures there is sufficient flexibility for the
Government to respond quickly to trends or new evidence about effective practices
to prevent and respond to gender-based violence, noting this is an evolving area of
policy. A legislative instrument can be made quickly to include any additional
requirements to uplift higher education providers' gender-based violence prevention
and response practices.
38. The note under this section refers to subsection 33(3) of the Acts Interpretation Act
1901 regarding variation and revocation of the National Code. That subsection
provides that where an Act confers a power to make, grant or issue any instrument
of a legislative or administrative character (including rules, regulations or by-laws)
the power shall be construed as including a power exercisable in the like manner and
subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any
such instrument. If the Minister wished to amend the National Code in the future,
they would rely on this provision to do so.
Section 16: Purpose of the national code
39. This section sets out the purpose of the National Code.
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40. Subsection 16(1) provides that the purpose of the National Code is to provide
national standards for higher education providers in connection with preventing and
responding to gender-based violence, so that:
a. study, work, social and living environments are safe, respectful and inclusive
for staff and students; and
b. providers work to prevent, reduce and eliminate gender-based violence to
the greatest extent possible; and
c. providers effectively respond to gender-based violence in a way that
prioritises and protects safety, health and wellbeing; and
d. providers address the factors that drive and contribute to gender-based
violence; and
e. providers have effective governance arrangements in place to prevent and
respond to gender-based violence across all of their operations and at all
levels of their organisations.
41. Each of the requirements included in the National Code must have a connection with
at least one of these purposes.
42. These purposes have been included to ensure that higher education providers
understand what the National Code is trying to achieve and what Government
expectations are of higher education providers in relation to preventing and
responding to gender-based violence in their communities.
43. Subsection 16(2), provides that, without limiting subsection 16(1), the national
standards that the National Code may provide include standards relating to:
a. gender-based violence involving students or staff of a provider or people
receiving services from a provider, whether or not other people are also
involved; and
b. gender-based violence that occurs on premises owned or controlled by a
provider, or in any other place.
44. This subsection makes clear that the National Code applies to gender-based violence
that occurs in all settings, including on and off a higher education provider's campus.
Higher education providers will be expected to take actions that are proportionate
and safe to protect and support students and staff that experience gender-based
violence, regardless of where, or the context in which, the gender-based violence is
experienced.
Section 17: Contents of the national code
45. This section sets out the contents of the National Code.
46. Subsection 17(1) provides that the National Code may impose requirements on
higher education providers in connection with the purpose of the National Code, as
set out in section 16 of the Bill. The note under this subsection explains that a higher
education provider that fails to comply with a requirement may be liable to a civil
penalty under section 20.
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47. Subsection 17(2) provides that, without limiting subsection 17(1), the National Code
may do any of the following:
a. require providers to have particular governance arrangements in place for
the purposes of preventing and responding to gender-based violence;
b. require providers to prepare, and give effect to, plans, policies and
procedures for preventing and responding to gender-based violence;
c. require providers to impose requirements relating to preventing and
responding to gender-based violence on employees and prospective
employees, and other people engaged by providers;
d. impose requirements relating to the use of nondisclosure agreements, or
other ways of imposing or enforcing confidentiality, in connection with
disclosures of gender-based violence;
e. require providers to provide education and training for students and staff
about gender-based violence, including on how to prevent and respond to
gender based violence;
f. require providers to make support services available to people who have
experienced gender-based violence;
g. impose requirements on providers in relation to student accommodation;
h. require providers to impose, through contracts or other arrangements,
requirements relating to gender-based violence on other entities (such as
entities that provide student accommodation);
i. require providers to prepare reports relating to gender-based violence;
j. require providers to provide plans, policies, procedures and reports to the
Secretary;
k. require providers to collect information (which may include personal
information within the meaning of the Privacy Act 1988 (Privacy Act)) relating
to gender-based violence;
l. require providers to provide information (other than personal information
within the meaning of the Privacy Act) to the Secretary for the purposes of
the Secretary disclosing the information to the public under section 44;
m. require providers to provide other information (which may include personal
information within the meaning of the Privacy Act) to the Secretary;
n. require providers to publish information (other than personal information
within the meaning of the Privacy Act) relating to gender-based violence;
o. require plans, reports and other information to be in a form approved by the
Secretary;
p. require providers to give effect to recommendations relating to gender-based
violence that are made, from time to time, by the National Student
Ombudsman under the Ombudsman Act 1976;
q. include any other matters that the Minister considers are necessary or
convenient to give effect to the purpose of the National Code.
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48. This provision makes it clear that certain types of requirements can be expressly
included in the National Code.
49. Paragraphs 17(2)(l) and (m) make it clear that possible requirements in the National
Code related to giving information to the Secretary for the purposes of publication,
or higher education providers publishing information, must not require personal
information to be given or published. 'Personal information' is defined in the Privacy
Act to mean information or an opinion about an identified individual, or an individual
who is reasonably identifiable whether the information or opinion is true or not, and
whether the information or opinion is recorded in a material form or not. It is not
appropriate for the personal information of individuals who may have been involved
in incidents of gender-based violence to be made publicly available, noting the
impact this may have on those individuals. However, it may be necessary to require
providers to collect and provide personal information to the Secretary to enable the
Secretary to effectively monitor and investigate compliance with the Bill and the
National Code. For example, an individual may provide information about a
provider's non-compliance with the National Code, the department may need to
request information from the provider about the alleged non-compliance, which
could include personal information about the individual or others. For this reason,
paragraphs 17(2)(k) and (m) have been included in this provision to expressly allow
such requirements to be included in the National Code.
50. Paragraph 17(2)(p) provides that the National Code may include a requirement that
providers give effect to recommendations made to a higher education provider
relating to gender-based violence made from time to time by the National Student
Ombudsman. This will help to ensure that higher education providers act on the
recommendations of the National Student Ombudsman, including any
recommended changes to gender-based violence policies and procedures to improve
processes for students.
51. Subsection 17(3) provides that, despite subsection 14(2) of the Legislation Act 2003,
the National Code may apply, adopt or incorporate, with or without modification,
any matter contained in any instrument or other writing as in force or existing from
time to time. This subsection provides a contrary intention to the requirements in
subsection 14(2) of the Legislation Act 2003 so that an instrument made by the
Minister can flexibly refer to external documents. The ability to refer to external
documents is important as the Minister may need to refer to documents such as
international conventions and treaties or any existing Australian Government
guidance related to preventing or responding to gender-based violence as existing
from time to time, and it is critical that these referrals stay up to date over time to
ensure that the National Code reflects current and best practice in the prevention
and response to gender-based violence.
Section 18: Notification of the national code
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52. This section provides for how each higher education provider must be notified about
the making of the National Code, or amendments to the National Code.
53. Subsection 18(1) provides that the Secretary must give each higher education
provider written notice of the making or amendment of the National Code, and the
day on which the National Code or amendment takes effect for the provider, and the
way in which the provider may access the text of the National Code in force on that
day.
54. Subsection 18(2) provides that a failure to comply with subsection 18(1) does not
affect the validity of the National Code or an amendment of the National Code.
55. The intention is that the Secretary will always comply with the requirement to notify
higher education providers of the National Code being made or amended and the
department will establish appropriate processes to ensure this occurs. The
department will provide education, guidance and general advice to higher education
providers to, amongst other things, promote and support their compliance with the
National Code, which would necessarily involve keeping higher education providers
updated on the National Code being made and any amendments to the Code.
56. However, given the significance of the requirements that will be included in the
National Code, it would not be appropriate to invalidate the National Code if this
procedural step happened to be missed on an occasion.
57. Subsection 18(3) provides that a notice given under subsection 18(1) is not a
legislative instrument. This subsection is included to assist readers, as the
determination is not a legislative instrument within the meaning of subsection 8(1)
of the Legislation Act 2003. Rather, the Secretary's determination is administrative in
character as it provides information to higher education providers about the
National Code, rather than determining or altering the National Code itself.
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Part 4--Obligations of higher education providers
Division 1--Simplified outline of this Part
Clause 19: Simplified outline of this Part
58. This section provides a brief outline of Part 4 of the Bill. It explains that a higher
education provider that fails to comply with a requirement under the National Code
may be liable to a civil penalty. It further explains that Part 4 also imposes record
keeping and information related requirements on higher education providers and
that a provider that does not comply with these requirements may be liable to a civil
penalty.
Division 2--Obligations of higher education providers
Section 20: Provider must comply with the national code
59. This section provides that a higher education provider is liable to a civil penalty of
200 penalty units if the provider is subject to a requirement under the National Code
and fails to comply with the requirement.
60. On application of the Secretary under Part 4 of the Regulatory Powers Act, a court
may, pursuant to that Act, impose a maximum penalty of not more than 5 times the
civil penalty amount listed in this section, or 1,000 penalty units, on a higher
education providers for a contravention of a requirement of the National Code.
61. The purpose of the National Code is to provide a set of national standards that must
be applied by higher education providers to prevent and safely respond to
gender-based violence experienced by their staff and students. This penalty reflects
the negative impact that non-compliance with the National Code could have on the
safety and wellbeing of students and staff of the higher education provider. The
penalty amount is intended to encourage higher education providers to comply with
the requirements of the National Code and to deter non-compliance in order to
protect the safety of students and staff.
62. Given the National Code's focus on the safety of students and staff, penalties for
contraventions of the National Code have been set consistently with penalties in
other legislation that deals with safety, such as the Work, Health and Safety Act 2011
and the Aged Care Bill 2024.
63. Consistent with the Guide to Framing Commonwealth Offences, Infringement Notices
and Enforcement Powers (which can be found here:
https://www.ag.gov.au/sites/default/files/2024-05/Guide-Framing-Commonwealth-
Offences.pdf), the maximum penalty encourages deterrence, and provides flexibility
for the court to impose penalties commensurate with the severity of any
contravention of the National Code.
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64. The note under the section indicates that a failure to comply with the National Code
may also constitute a failure to comply with other requirements that the provider is
subject to, and may lead to other consequences. For example, a failure may result in
the Minister taking action in relation to a body's approval as a higher education
provider under Division 22 of the Higher Education Support Act 2003 (HESA), or
TEQSA taking regulatory action in relation to compliance with the Threshold
Standards made under the TEQSA Act.
65. Compliance with the National Code will become a quality requirement under
Subdivision 19-C of HESA, once amendments have been made to HESA through the
Universities Accord (National Higher Education Code to Prevent and Respond to
Gender-based Violence) (Consequential Amendments) Bill 2025, which is being
introduced at the same time as the Bill. Including this requirement in HESA will help
to encourage and ensure compliance with the National Code by HESA approved
providers and would provide an additional regulatory tool for the department in
relation to serious and sustained non-compliance.
66. Further, higher education providers also have an ongoing obligation to comply with
other legislative requirements that may apply to them (which would include the
National Code), under the Threshold Standards (Standard 6.2.1.a) which is an
instrument made by the Minister for Education under section 58 of the TEQSA Act.
Section 21: Keeping records
67. This section sets out record-keeping requirements for higher education providers.
68. Subsection 21(1) provides that a higher education provider must, in accordance with
any rules made for the purposes of subsection 21(2), keep records relating to the
provider's compliance with the Bill and legislative instruments made under the Bill.
69. Subsection 21(2) provides that the rules may make provision in relation to the kinds
of records that must be kept, and the manner and form in which the records must be
kept.
70. The records that higher education providers will need to keep, and the manner and
form in which those records must be kept, will largely be driven by the requirements
that are placed on higher education providers in the National Code.
71. Providing a power for record keeping requirements to be set out in the rules will
ensure there is sufficient flexibility for Government to ensure the record keeping
requirements appropriately reflect the requirements in the National Code and
support the department to effectively monitor and enforce compliance with the Bill
and the National Code.
72. Subsection 21(3) provides that the records must be retained for 7 years.
Civil penalty provision
28
73. Subsection 21(4) provides that a higher education provider is liable to a civil penalty
if the provider is subject to a requirement under section 21 and the provider fails to
comply with the requirement. The applicable civil penalty is 60 penalty units.
74. It is important that higher education providers retain relevant records in the
appropriate form to ensure the Secretary and the department can effectively
monitor provider compliance with the Bill and the National Code. The inclusion of a
civil penalty is intended to encourage providers to comply with this record keeping
requirement and to deter non-compliance.
75. This penalty of 60 penalty units is consistent with the penalty for failure to keep
records under section 19-72 of HESA.
Section 22: Giving information to the Secretary
76. This section sets out how higher education providers may be required to give
information to the Secretary.
77. Subsection 22(1) provides that the rules may require a higher education provider to
give information to the Secretary for the purposes of the Secretary's functions or
powers under the Bill.
78. Subsection 22(2) provides that the rules may provide for any or all of the following
for the purposes of subsection 22(1):
a. the information that must be given;
b. when the information must be given;
c. the manner and form in which the information must be given; and
d. timeframes for the giving of information.
79. The Secretary will need to know particular information about a higher education
provider to effectively monitor and enforce compliance with the Bill and the National
Code. The types of information that are likely to be set out in the rules could include:
a. higher education provider name;
b. Australian Business Number (ABN);
c. main campus address;
d. general contact details (e.g. email address, phone number, website);
e. nominated contact person details (e.g. title, full name, email address, phone
number);
f. number and location of student accommodation facilities;
g. number of beds at each student accommodation facility.
80. It is appropriate to include these requirements in the rules to ensure the
Government has flexibility to update the information requirements quickly if
necessary to reflect any amendments that are made to the National Code, or if the
Secretary becomes aware that they need additional details about higher education
providers to effectively exercise their powers and functions.
81. Subsection 22(3) provides that the information mentioned in paragraph 22(2)(a) may
include personal information (within the meaning of the Privacy Act). This subsection
29
clarifies that the rules may require higher education providers to give personal
information to the Secretary. It is necessary for the rules to be able to require
providers to give the Secretary personal information to ensure the Secretary has the
details for relevant people at the higher education provider who can be contacted as
part of the Secretary exercising their powers and functions under the Bill. Any
personal information collected through these processes will be handled in
accordance with the Department of Education's privacy policy (which can be found
here: https://www.education.gov.au/using-site/privacy) and the department will
continue to comply with its privacy obligations under the Australian Privacy
Principles in Schedule 1 to the Privacy Act.
Civil penalty provision
82. Subsection 22(4) provides that a higher education provider is liable to a civil penalty
if the provider is subject to a requirement under section 22, and the provider fails to
comply with the requirement. The applicable civil penalty is 60 penalty units.
83. The inclusion of a civil penalty is intended to encourage providers to comply with the
requirement to provide information so the Secretary can effectively monitor and
enforce compliance with the Bill and the National Code and to deter
non-compliance.
84. This penalty of 60 penalty units is consistent with the penalty for failure to provide a
statement of general information under section 19-70 of HESA.
Section 23: Notifying Secretary of changes to information or other events
85. This section imposes requirements on higher education providers about when they
need to notify the Secretary of certain events.
86. Subsection 23(1) provides that section 23 applies in relation to a higher education
provider if the provider becomes aware, or could reasonably be expected to have
become aware:
a. that information given to the Secretary by the provider under section 22 is, or
has become, inaccurate in a material particular; or
b. that the provider has contravened the Bill or a legislative instrument made
under the Bill; or
c. that the provider is likely, in the future, to contravene the Bill or a legislative
instrument made under the Bill.
87. This provision will help to ensure that the Secretary has up to date information
about higher education providers to support the Secretary to effectively exercise
their powers and functions under the Bill. The requirement for a provider to advise
the Secretary about any actual or potential non-compliance will ensure the Secretary
can work with the provider to ensure non-compliance can be rectified and student
and staff safety is protected.
30
88. Subsection 23(2) provides that the higher education provider must notify the
Secretary, in writing, of a matter mentioned in paragraph (1)(a), (b) or (c) within 14
days after the provider becomes aware, or could reasonably be expected to have
become aware, of the matter. The 14-day timeframe appropriately balances the
need for the Secretary to have up-to-date details about a higher education provider
and any non-compliance, or potential non-compliance, with the Bill and National
Code, against the administrative burden on providers.
Civil penalty provision
89. Subsection 23(3) provides that a higher education provider is liable to a civil penalty
if the provider becomes aware, or could reasonably be expected to have become
aware, of a matter mentioned in paragraph 23(1)(a), (b) or (c); and the provider fails
to notify the Secretary of the matter in accordance with subsection 23(2). The
applicable civil penalty is 60 penalty units.
90. The inclusion of a civil penalty is intended to encourage providers to comply with the
requirement to advise the Secretary of relevant matters and to deter
non-compliance.
91. This penalty of 60 penalty units is consistent with the penalty for failure to provide a
statement of general information under section 19-70 of HESA
Section 24: Provider must not give false or misleading information
92. This section sets out the consequences for higher education providers if they give
false or misleading information.
93. Subsection 24(1) provides that a higher education provider is liable to a civil penalty
if:
a. the provider gives information or produces a document under, or for the
purposes of, the Bill or a legislative instrument made under the Bill; and
b. the information or document is false or misleading; or omits any matter or
thing without which the information or document is misleading.
The applicable civil penalty is 60 penalty units.
94. It is important that information provided to the Secretary is accurate and reflects the
operations of the provider to ensure the Secretary can effectively monitor and
enforce compliance with the Bill and the National Code. The inclusion of a civil
penalty provision will encourage higher education providers to provide accurate
information and deter non-compliance. The penalty of 60 penalty units is consistent
with the penalty under 238-1A of HESA for providing false and misleading
information.
95. Subsection 24(2) provides that subsection 24(1) does not apply if the information or
document is not false or misleading in a material particular. This ensures that a
higher education provider will not be liable for a civil penalty if the provider gives
31
information or a document that is not false or misleading in a consequential or
significant way, for example, if the information included a misspelled word.
96. The first note under this section provides that, in proceedings for a civil penalty
order against a person for a contravention of subsection 24(1), the person bears an
evidential burden in relation to the matter in this subsection, consistent with section
96 of the Regulatory Powers Act. Section 4 of the Regulatory Powers Act defines
'evidential burden' in relation to a matter as meaning the burden of adducing or
pointing to evidence that suggests a reasonable possibility that the matter exists or
does not exist. This means that, if the Secretary applied to a court to seek an order
against a person for contravention of section 24, the person would bear the burden
of proving that they did not give false or misleading information to the Secretary.
This is justified because it is more practical for the person to point to evidence that
suggests a reasonable possibility that the information or document is not false or
misleading in a material way.
97. The second note under section 24 provides that a person may commit an offence if
the person gives false or misleading information or produces false or misleading
documents (see sections 137.1 and 137.2 of the Criminal Code).
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Part 5--Powers and officials
Division 1--Simplified outline of this Part
Section 25: Simplified outline of this Part
98. This section provides a brief outline of Part 5 of the Bill. It explains that Part 5
confers various functions and powers on the Secretary, including in relation to
providing education, guidance and general advice to higher education providers;
requiring providers to give information; issuing compliance notices; and appointing
authorised officers.
Division 2--Providing education, guidance and advice
Section 26: Secretary may provide education, guidance and advice
99. This section sets out how the Secretary may provide education, guidance and advice
to higher education providers in relation to the requirements in the Bill and National
Code.
100. Subsection 26(1) provides that the Secretary may provide education, guidance and
general advice to higher education providers for the purposes of:
a. promoting and supporting compliance with the Bill and legislative
instruments made under the Bill; and
b. building understanding, among higher education providers, of:
i. the causes of gender-based violence; and
ii. factors that contribute to gender-based violence; and
c. promoting best practice in relation to preventing and responding to gender-
based violence; and
d. promoting evidence-informed prevention of, and responses to, gender-based
violence.
101. This section reflects the key role of the Secretary in building capability across the
sector in meeting the requirements of the National Code and fostering a culture of
continuous improvement.
102. Subsection 26(2) provides that section 26 does not limit the powers and functions
of the Secretary. This subsection has been included to put it beyond doubt that the
Secretary may have other functions in relation to the Bill and the National Code
which are unaffected by section 26.
Division 3--Requiring information
Section 27: Secretary may require certain persons to give information etc.
103. This section provides for how the Secretary may require certain persons to give
information.
33
104. Subsection 27(1) provides that section 27 applies to a person if the Secretary
reasonably believes that:
a. the person is a higher education provider; or is, or was, connected with a
higher education provider; and
b. the person is capable of giving information, or producing a document or a
thing, that is relevant to the Secretary's functions under the Bill or a
legislative instrument made under the Bill; or assessing the higher education
provider's compliance with the Bill or a legislative instrument made under
the Bill.
105. Subsection 27(2) provides that the Secretary may, by written notice given to the
person, require the person:
a. to give the information to the Secretary; or
b. to produce the document or thing to the Secretary; or
c. to make copies of the document and produce the copies to the Secretary;
within the period and in the manner specified in the notice.
106. Subsection 27(3) provides that a notice given by the Secretary must not specify a
period shorter than 14 days after the notice is given, unless the Secretary reasonably
considers that a shorter period, that is at least 24 hours after the notice is given, is
necessary; and must set out the effect of subsection 27(5). Giving a person a period
of 14 days, unless a shorter period is reasonably necessary, to respond to a request
for information will ensure the person has sufficient time to collect and collate any
requested information or documents. A shorter period may be reasonably necessary
for the Secretary to understand and respond to a serious issue of non-compliance
that poses a threat to the health and wellbeing of students and staff.
107. Subsection 27(4) provides that information mentioned in paragraph 27(2)(a), or a
document mentioned in paragraph 27(2)(b) or (c), may include personal information
(within the meaning of the Privacy Act). This subsection clarifies that the Secretary
may request personal information from higher education providers through a notice
issued under section 27. It is necessary for the Secretary to be able to request
personal information through a notice because this information may be required on
rare occasions to ascertain if a higher education provider has followed its internal
policies and procedures and reflected this in practice when preventing and
addressing gender-based violence in their institution. While this power enables the
Secretary to request personal information, this information would be collected rarely
and only when the Secretary cannot reasonably ascertain a higher education
provider's compliance with the Bill and the National Code through other information
provided by the higher education provider. The Secretary will primarily utilise
de-identified information to determine if there are any systemic issues with the
provider.
Civil penalty provision
34
108. Subsection 27(5) provides that a person is liable to a civil penalty if the person is
given a notice under subsection 27(2), and the person fails to comply with the
notice. The applicable civil penalty is 60 penalty units.
109. It is appropriate to apply a civil penalty for a failure to comply with a notice to
provide information to ensure the Secretary can receive the information they need
to effectively carry out their functions under the Bill and ensure providers are
complying with the Bill and the National Code.
110. The penalty amount is consistent with the penalty for the power to require persons
to produce records or documents under section 712 of the Fair Work Act 2009.
Copying documents--reasonable compensation
111. Subsection 27(6) provides that a person is entitled to be paid by the
Commonwealth reasonable compensation for complying with a requirement under
paragraph 36(2)(c).
Section 28: Secretary may retain documents and things
112. This section provides that the Secretary may retain certain documents or things
produced to the Secretary by a higher education provider.
Secretary may retain documents and things
113. Subsection 37(1) provides that, if a document (including a copy of a document), or
a thing, is produced to the Secretary under section 27, the Secretary:
a. may take possession of, and may make copies of, the document or thing; and
b. may retain possession of the document or thing for such period as is
necessary for the purposes of the Bill or a legislative instrument made under
the Bill; or for the purposes of monitoring compliance with the Bill or a
legislative instrument made under the Bill; or for the purposes of
investigating a contravention or apparent contravention of a civil penalty
provision of the Bill; or to enable evidence to be secured for the purposes of
a civil penalty proceeding.
Access and certified copy to be provided
114. Subsection 28(2) provides that subsections 28(3) to (5) apply to a document
produced under paragraph 27(2)(b).
115. Subsection 28(3) provides that the person otherwise entitled to possession of the
document is entitled to be supplied, as soon as practicable, with a copy certified by
the Secretary to be a true copy.
116. Subsection 28(4) provides that the certified copy must be received in all courts and
tribunals as evidence as if it were the original.
35
117. Subsection 28(5) provides that, until a certified copy is supplied, the Secretary
must, at such times and places as the Secretary thinks appropriate, permit the
person otherwise entitled to possession of the document, or a person authorised by
that person, to inspect and make copies of, or take extracts from, the document.
Section 29: Returning documents or things produced
118. This section provides for how the Secretary must return documents or things
produced to the Secretary by a higher education provider.
119. Subsection 29(1) provides that, if:
a. a document (other than a copy of a document) or thing is produced to the
Secretary under section 27; and
b. the Secretary can no longer retain the document or thing under
paragraph 28(1)(b);
the Secretary must take reasonable steps to return it, unless it is forfeited or
forfeitable to the Commonwealth or is the subject of a dispute as to ownership.
120. Subsection 29(2) provides that the document or thing referred to in subsection
29(1) must be returned to the person who produced it (or to the owner if the person
who produced it is not entitled to possess it).
Section 30: Disposal if documents or things cannot be returned
121. This section provides that the Secretary may dispose of a document or thing in such
manner as the Secretary considers appropriate if:
a. the document or thing is produced to the Secretary under section 27; and
b. under section 29, the Secretary is required to take reasonable steps to return
the document or thing to a person; and
c. either the Secretary cannot, despite making reasonable efforts, locate the
person; or the person has refused to take possession of the document or
thing.
Section 31: Self-incrimination
122. This section explains what rules apply if a person gives information or produces a
document that could incriminate them.
123. Subsection 31(1) provides that a person is not excused from:
a. giving information; or
b. producing a document (including a copy of a document) or thing;
under section 27 on the ground that doing so might tend to incriminate the person
or expose the person to a penalty.
124. Subsection 31(2) provides that, in the case of an individual, none of the following:
a. the information given;
b. the document, copy or thing produced;
36
c. the giving of the information or the producing of the document, copy or
thing;
d. any information, document or thing obtained as a direct or indirect
consequence of giving the information or producing the document, copy or
thing;
is admissible in evidence against the individual:
e. in civil proceedings for the recovery of a penalty; or
f. in criminal proceedings, other than proceedings for an offence against
section 137.1 or 137.2 of the Criminal Code (which deals with false or
misleading information or documents) that relates to the Bill; or
section 149.1 of the Criminal Code (which deals with obstruction of
Commonwealth public officials) that relates to the Bill.
125. This section abrogates the privilege against self-incrimination and penalty privilege
by providing that a person is not excused from giving information or producing a
document on the grounds that it may incriminate them or expose them to a penalty.
The abrogation of this privilege is necessary to ensure the Secretary can
appropriately monitor and enforce compliance with the Bill and the National Code,
noting individuals may be in possession of documents relevant to these functions
which may also incriminate them.
126. The abrogation of the privilege against self-incrimination operates together with a
use immunity, which limits the use of potentially self-incriminating information,
documents or things obtained directly or indirectly as a consequence of giving the
information or producing the document, copy or thing in civil proceedings or criminal
proceedings, other than proceedings related to sections 137.1, 137.2 or 149.1 of the
Criminal Code. This ensures that any information or document, copy, or thing,
produced will be admissible only in a very limited range of proceedings related to
misleading or obstructing Commonwealth officials. Allowing evidence to be
admissible in these proceedings is necessary to safeguard the integrity of
information being provided to the Secretary.
Division 4--Compliance notices
Section 32: Compliance notices
127. This section provides the Secretary with the power to issue compliance notices to
higher education providers and sets out the rules the Secretary must follow when
doing so.
Grounds for giving compliance notice
128. Subsection 32(1) provides that the Secretary may give a higher education provider
a written notice (a compliance notice) in accordance with section 45 if the Secretary
is satisfied that the provider has not complied with, or is aware of information that
37
suggests that the provider might not comply with, the Bill or a legislative instrument
made under the Bill.
Content of compliance notice
129. Subsection 32(2) provides that a compliance notice issued under section 32 must:
a. set out the name of the higher education provider to which the notice is
given; and
b. set out brief details of the non-compliance or possible non-compliance; and
c. specify action that the provider must take, or refrain from taking, in order to
address the non-compliance or possible non-compliance; and
d. specify a reasonable period within which the provider must take, or refrain
from taking, the specified action; and
e. if the Secretary considers it appropriate--specify a reasonable period within
which the provider must provide the Secretary with evidence that the
provider has taken, or refrained from taking, the specified action; and
f. set out the effect of subsection 32(4).
Compliance notice is not a legislative instrument
130. Subsection 32(3) provides that a compliance notice is not a legislative instrument.
This subsection is included to assist readers, as the determination is not a legislative
instrument within the meaning of subsection 8(1) of the Legislation Act 2003.
Rather, a compliance notice is administrative in character as it provides information
to higher education providers about suspected or actual non-compliance with the
Bill and National Code, and any related matters, rather than determining or altering
the Bill or the National Code itself.
Civil penalty provision
131. Subsection 32(4) provides that a higher education provider is liable to a civil penalty
if the provider is given a compliance notice under section 45, and the provider fails
to comply with the compliance notice. The applicable civil penalty is 60 penalty units.
132. It is appropriate to apply a civil penalty for a failure to comply with a compliance
notice to ensure that providers take appropriate action to address a breach
identified in the compliance notice.
133. The penalty amount is consistent with the penalty for non-compliance with a
compliance notice in section 19-82 of HESA.
Variation and revocation of compliance notice
134. Subsection 32(5) provides that the Secretary may, by written notice given to a
higher education provider, vary or revoke a compliance notice given to the provider
if the Secretary considers that the variation or revocation is in the public interest.
38
The note under this subsection provides that a variation to a compliance notice
could, for example, specify different action to be taken by the provider or a different
period for complying with the notice. The public interest test would consider the
seriousness of the non-compliance and the likely impact on the safety and wellbeing
of students and staff at the provider of amending or revoking a compliance notice.
135. Subsection 32(6) provides that, in deciding whether to vary or revoke a compliance
notice given to a higher education provider, the Secretary must consider any
submissions that are received from the provider before the end of the period
mentioned in paragraph 32(2)(d).
Compliance notice not required before taking other action
136. Subsection 32(7) provides that, to avoid doubt, the Secretary need not give a
compliance notice under this section before taking other actions under the Bill in
relation to non-compliance with the Bill or a legislative instrument made under the
Bill. The note under this subsection provides an example of other action that could
be taken without issuing a compliance notice, being the issuing of an infringement
notice under section 38 of the Bill.
137. A decision to issue a compliance notice is not subject to merits review. This
recognises that a higher education provider would have the ability to make a
submission to the Secretary seeking that the notice be withdrawn. In order to take
any particular action to enforce non-compliance with a notice, e.g. application of the
civil penalty, the Secretary would need to apply to a court and the higher education
provider would have the opportunity to make a submission to the court in response.
Division 5--Authorised officers
Section 33: Authorised officers
138. This section sets out the Secretary's power to appoint authorised officers.
139. Subsection 33(1) provides that the Secretary may, in writing, appoint an APS
employee in the department to be an authorised officer for the purposes of the Bill.
140. Subsection 33(2) provides that the Secretary must not appoint a person to be an
authorised officer unless:
a. the person is classified as EL1 or equivalent, or higher, or acting in a position
usually occupied by an APS employee who is so classified; and
b. the Secretary is satisfied that the person has appropriate qualifications or
expertise to properly perform the functions and duties, and exercise the
powers, of an authorised officer.
141. The ability to appoint an Executive Level 1 employee as an authorised officer will
support the efficient regulation of the Bill and the National Code and help the
department to manage its regulatory workload by ensuring staff with the
39
appropriate seniority can exercise relevant powers and functions under the
Regulatory Powers Act.
142. Subsection 33(3) provides that an authorised officer must, in exercising powers as
an authorised officer, comply with any directions of the Secretary.
40
Part 6--Compliance and enforcement
Division 1--Simplified outline of this Part
Section 34: Simplified outline of this Part
143. This section provides a brief outline of Part 6 of the Bill. It explains that Part 6
provides for provisions of the Bill and the National Code to be subject to monitoring,
investigation and enforcement under the Regulatory Powers Act.
Division 2--Regulatory powers
Section 35: Monitoring powers
144. This section provides the Secretary and authorised officers with monitoring powers
by triggering Part 2 of the Regulation Powers Act.
145. Subsection 35(1) provides that a provision is subject to monitoring under Part 2 of
the Regulatory Powers Act if it is a provision of the Bill, or a provision of a legislative
instrument made under the Bill.
Information subject to monitoring
146. Subsection 35(2) provides that information given in compliance or purported
compliance with a provision of the Bill or a legislative instrument made under the Bill
is subject to monitoring under Part 2 of the Regulatory Powers Act. The note under
this subsection provides that Part 2 of the Regulatory Powers Act creates a
framework for monitoring whether the information is correct. It includes powers of
entry and inspection.
Authorised applicant
147. Subsection 35(3) provides that, for the purposes of Part 2 of the Regulatory Powers
Act, the Secretary is an authorised applicant.
148. This means that the Secretary can exercise powers of an authorised applicant under
Part 2 of the Regulatory Powers Act to determine whether a provision of the Bill or
National Code, or is being, complied with, or whether information given in
compliance or purported compliance with the Bill or National Code is correct.
Powers of authorised applicants under Part 2 of the Regulatory Powers Act include
applying to an issuing officer for a warrant under section 32 of the Regulatory
Powers Act in relation to premises.
Authorised person
149. Subsection 35(4) provides that, for the purposes of Part 2 of the Regulatory Powers
Act, an authorised officer is an authorised person. This means that an authorised
officer appointed by the Secretary under section 47 of the Bill can exercise powers of
41
an authorised person under Part 2 of the Regulatory Powers Act to determine
whether a provision of the Bill or National Code, or is being, complied with, or
whether information given in compliance or purported compliance with the Bill or
National Code is correct. Powers of authorised persons under Part 2 of the
Regulatory Powers Act include:
a. entering premises, either with consent or under a monitoring warrant
(section 18 of the Regulatory Powers Act); and
b. exercising general monitoring powers (described in section 19 of the
Regulatory Powers Act) following entry into premises, such as searching the
premises, examining or observing activities on the premises, taking images or
making recordings on the premises, and inspecting documents on the
premises.
Issuing officer
150. Subsection 35(5) provides that, for the purposes of Part 2 of the Regulatory Powers
Act, a magistrate is an issuing officer in relation to the provisions mentioned in
subsection 35(1) and the information mentioned in subsection 35(2). This means
that a magistrate may make orders that an authorised applicant or authorised
person may apply for, for example, the issuing a of warrant under section 32 of the
Regulatory Powers Act.
Relevant chief executive
151. Subsection 35(6) provides that, for the purposes of Part 2 of the Regulatory Powers
Act, the Secretary is the relevant chief executive in relation to the provisions
mentioned in subsection 35(1) and the information mentioned in subsection 51(2).
This means that the Secretary is the relevant chief executive for the purposes of
exercising powers and functions under Part 2 of the Regulatory Powers Act, being
the power to issue identity cards to authorised persons under section 35 of that Act.
152. The note under this subsection refers to the Secretary's power to delegate the
functions and powers of the relevant chief executive for the purposes of Part 2 of
the Regulatory Powers Act, under section 48 of the Bill.
Relevant court
153. Subsection 35(7) provides that for the purposes of Part 2 of the Regulatory Powers
Act, each of the following courts is a relevant court in relation to the provisions
mentioned in subsection 35(1) and the information mentioned in subsection 35(2):
a. the Federal Court of Australia;
b. the Federal Circuit and Family Court of Australia (Division 2).
154. This means that, consistent with section 29 of the Regulatory Powers Act, if
damage is caused as a result of the Commonwealth using electronic equipment to
42
exercise its monitoring powers under Part 2 of that Act, the owner or user of the
equipment may apply to one of the above courts for an order for reasonable
compensation (if the owner and the Commonwealth cannot agree on the amount of
compensation).
Person assisting
155. Subsection 35(8) provides that an authorised person may be assisted by other
persons in exercising powers or performing functions or duties under Part 2 of the
Regulatory Powers Act in relation to the provisions mentioned in subsection 35(1)
and the information mentioned in subsection 35(2).
156. This means that, when exercising powers or functions under Part 2 of the
Regulatory Powers Act, an authorised person may be assisted by others who are not
authorised persons, for example, lower-level APS employees or contractors engaged
by the department to assist in monitoring compliance with the Bill and National
Code.
Extension to external Territories
157. Subsection 35(9) provides that Part 2 of the Regulatory Powers Act, as that Part
applies in relation to the provisions mentioned in subsection 35(1) and the
information mentioned in subsection 35(2), extends to every external Territory.
Section 36: Investigation Powers
158. This section provides the Secretary and authorised officers with investigation
powers by triggering Part 3 of the Regulation Powers Act.
Provisions subject to investigation
159. Subsection 36(1) provides that a provision is subject to investigation under Part 3 of
the Regulatory Powers Act if it is a civil penalty provision of the Bill. The note under
this subsection provides that Part 3 of the Regulatory Powers Act creates a
framework for investigating whether a provision has been contravened. It includes
powers of entry, search and seizure.
Authorised applicant
160. Subsection 36(2) provides that, for the purposes of Part 3 of the Regulatory Powers
Act, the Secretary is an authorised applicant in relation to evidential material that
relates to a provision mentioned in subsection 36(1).
161. This means that the Secretary can exercise powers of an authorised applicant under
Part 3 of the Regulatory Powers Act. Powers of authorised applicants under Part 3 of
the Regulatory Powers Act include applying to an issuing officer for a warrant under
section 70 of the Regulatory Powers Act in relation to premises.
43
Authorised person
162. Subsection 36(3) provides that, for the purposes of Part 3 of the Regulatory Powers
Act, an authorised officer is an authorised person in relation to evidential material
that relates to a provision mentioned in subsection 36(1).
163. This means that an authorised officer appointed by the Secretary under section 33
of the Bill can exercise powers of an authorised person under Part 3 of the
Regulatory Powers Act. Powers of authorised persons under Part 3 of the Regulatory
Powers Act include:
a. entering premises, either with consent or under a warrant, if they suspect on
reasonable grounds that there may be evidential material on any premises
(section 48 of the Regulatory Powers Act); and
b. exercising general investigation powers (described in section 49 of the
Regulatory Powers Act) following entry into premises, such as searching the
premises for evidential material, and examining or inspecting evidential
material on the premises.
Issuing officer
164. Subsection 36(4) provides that, for the purposes of Part 3 of the Regulatory Powers
Act, a magistrate is an issuing officer in relation to evidential material that relates to
a provision mentioned in subsection 36(1). This means that a magistrate may make
orders that an authorised applicant or authorised person may apply for, for example,
the issuing a of warrant under section 70 of the Regulatory Powers Act.
Relevant chief executive
165. Subsection 36(5) provides that, for the purposes of Part 3 of the Regulatory Powers
Act, the Secretary is the relevant chief executive in relation to evidential material
that relates to a provision mentioned in subsection 36(1). This means that the
Secretary is the relevant chief executive for the purposes of exercising powers and
functions under Part 3 of the Regulatory Powers Act. Such powers and functions
include taking reasonable steps to return seized things under section 66 and
disposing of seized things under section 68.
166. The note under this subsection refers to the Secretary's power to delegate the
functions and powers of the relevant chief executive for the purposes of Part 3 of
the Regulatory Powers Act, under section 48 of the Bill.
Relevant court
167. Subsection 36(6) provides that, for the purposes of Part 3 of the Regulatory Powers
Act, each of the following courts is a relevant court in relation to evidential material
that relates to a provision mentioned in subsection 36(1):
a. the Federal Court of Australia;
44
b. the Federal Circuit and Family Court of Australia (Division 2).
168. This means that the above courts have the power to determine certain matters
specified in Part 3 of the Regulatory Powers Act. For example, consistent with
section 61 of that Act, if damage is caused as a result of the Commonwealth using
electronic equipment to exercise its investigation powers under Part 3 of that Act,
the owner or user of the equipment may apply to one of the above courts for an
order for reasonable compensation (if the owner and the Commonwealth cannot
agree on the amount of compensation).
Person assisting
169. Subsection 36(7) provides that an authorised person may be assisted by other
persons in exercising powers or performing functions or duties under Part 3 of the
Regulatory Powers Act in relation to evidential material that relates to a provision
mentioned in subsection 36(1).
170. This means that, when exercising powers or functions under Part 3 of the
Regulatory Powers Act, an authorised person may be assisted by others who are not
authorised persons, for example, lower-level APS employees or contractors engaged
by the department to assist in investigating compliance with the Bill and National
Code.
Extension to external Territories
171. Subsection 36(8) provides that Part 3 of the Regulatory Powers Act, as that Part
applies in relation to the provisions mentioned in subsection 36(1), extends to every
external Territory.
Section 37: Civil penalty provisions
Enforceable civil penalty provisions
172. Subsection 37(1) provides that each civil penalty provision of the Bill is enforceable
under Part 4 of the Regulatory Powers Act. The note under this subsection provides
that Part 4 of the Regulatory Powers Act allows a civil penalty provision to be
enforced by obtaining an order for a person to pay a pecuniary penalty for the
contravention of the provision.
Authorised applicant
173. Subsection 37(2) provides that, for the purposes of Part 4 of the Regulatory Powers
Act, the Secretary is an authorised applicant.
174. This means that the Secretary can exercise powers of an authorised applicant under
Part 4 of the Regulatory Powers Act. Powers of authorised applicants under Part 4 of
the Regulatory Powers Act include applying to a relevant court for an order that a
45
person, who is alleged to have contravened a civil penalty provision, pay the
Commonwealth a pecuniary penalty under section 82 of that Act.
Relevant court
175. Subsection 37(3) provides that, for the purposes of Part 4 of the Regulatory Powers
Act, each of the following courts is a relevant court in relation to the civil penalty
provisions of the Bill:
a. the Federal Court of Australia;
b. the Federal Circuit and Family Court of Australia (Division 2).
176. This means that the above courts have the power to determine certain matters
specified in Part 4 of the Regulatory Powers Act. For example, if the court is satisfied
that the person has contravened a civil penalty provision of the Bill, the court may
order the person to pay to the Commonwealth such pecuniary penalty for the
contravention as the court determines to be appropriate under section 82 of that
Act. For a body corporate, the pecuniary penalty determined by the court must not
be more than 5 times the pecuniary penalty specified for the civil penalty provision
in the Bill. The current value of a penalty unit is $330 (see the definition of 'penalty
unit' in subsection 4AA(1) of the Crimes Act 1914).
Liability of Crown
177. Subsection 37(4) provides that Part 4 of the Regulatory Powers Act, as that Part
applies in relation to the civil penalty provisions of the Bill, does not make the Crown
liable to be subject to civil proceedings for a contravention of a civil penalty
provision.
Extension to external Territories
178. Subsection 37(5) provides that Part 4 of the Regulatory Powers Act, as that Part
applies in relation to the civil penalty provisions of the Bill, extends to every external
Territory.
Section 38: Infringement notices
Provisions subject to an infringement notice
179. Subsection 38(1) provides that a civil penalty provision of the Bill is subject to an
infringement notice under Part 5 of the Regulatory Powers Act. The note under this
subsection provides that Part 5 of the Regulatory Powers Act creates a framework
for using infringement notices in relation to provisions.
Infringement officer
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180. Subsection 38(2) provides that, for the purposes of Part 5 of the Regulatory Powers
Act, the Secretary is an infringement officer in relation to the provisions mentioned
in subsection 38(1).
181. This means that the Secretary can exercise powers of an authorised applicant under
Part 5 of the Regulatory Powers Act in relation to a contravention of a provision of
the Bill or National Code. Powers of infringement officers include issuing
infringement notices under section 103 of the Regulatory Powers Act to higher
education providers for alleged contraventions of the Bill and National Code.
Infringement notices must be given within 12 months after the day on which the
contravention is alleged to have taken place.
182. Section 104 of the Regulatory Powers Act prescribes the amount to be specified for
payment of an infringement notice. Because an infringement notice is merely an
allegation of contravention, the default maximum penalty is the lesser of: 12 penalty
units for an individual and 60 penalty units for a body corporate, or one-fifth of the
maximum penalty a court could impose for the contravention.
Relevant chief executive
183. Subsection 38(3) provides that, for the purposes of Part 5 of the Regulatory Powers
Act, the Secretary is the relevant chief executive in relation to the provisions
mentioned in subsection 38(1). This means that the Secretary is the relevant chief
executive for the purposes of exercising powers and functions under Part 5 of the
Regulatory Powers Act. Such powers and functions include determining whether the
time period for payment of an infringement notice should be extended under
section 105 of that Act.
184. The note under this subsection refers to the Secretary's power to delegate the
functions and powers of the relevant chief executive for the purposes of Part 5 of
the Regulatory Powers Act, under section 48 of the Bill.
Liability of Crown
185. Subsection 38(4) provides that Part 5 of the Regulatory Powers Act, as that Part
applies in relation to the provisions mentioned in subsection 38(1), does not make
the Crown liable to be given an infringement notice.
Extension to external Territories
186. Subsection 38(5) provides that Part 5 of the Regulatory Powers Act, as that Part
applies in relation to the provisions mentioned in subsection 38(1), extends to every
external Territory.
Section 39: Enforceable undertakings
Enforceable provisions
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187. Subsection 39(1) provides that the following provisions are enforceable under Part
6 of the Regulatory Powers Act:
a. a provision of the Bill;
b. a provision of a legislative instrument made under the Bill.
188. The note under this subsection provides that Part 6 of the Regulatory Powers Act
creates a framework for accepting and enforcing undertakings relating to compliance
with provisions.
Authorised person
189. Subsection 39(2) provides that, for the purposes of Part 6 of the Regulatory Powers
Act, the Secretary is an authorised person in relation to the provisions mentioned in
subsection 39(1).
190. This means that the Secretary can exercise powers of an authorised person under
Part 6 of the Regulatory Powers Act. Powers of authorised persons under Part 6 of
the Regulatory Powers Act include accepting undertakings from persons in relation
to contraventions of the Bill and National Code under section 114 of that Act, and
applying to a relevant court under section 115 of that Act for an order seeking to
enforce an undertaking.
Relevant court
191. Subsection 39(3) provides that, for the purposes of Part 6 of the Regulatory Powers
Act, each of the following courts is a relevant court in relation to the provisions
mentioned in subsection 39(1):
a. the Federal Court of Australia;
b. the Federal Circuit and Family Court of Australia (Division 2).
192. This means that the above courts have the power to determine certain matters
specified in Part 6 of the Regulatory Powers Act. For example, if the court is satisfied
that a person has breached an undertaking given to the Secretary, the court may
make an order under section 115 of that Act, including an order directing the person
to comply with the undertaking.
Publication of undertakings
193. Subsection 39(4) provides that an authorised person in relation to the provisions
mentioned in subsection 39(1) (i.e. the Secretary) may publish an undertaking, given
in relation to the provision by a higher education provider, on the department's
website.
Extension to external Territories
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194. Subsection 39(5) provides that Part 6 of the Regulatory Powers Act, as that Part
applies in relation to the provisions mentioned in subsection 55(1), extends to every
external Territory.
Section 40: Injunctions
Enforceable provisions
195. Subsection 40(1) provides that the provisions of the Bill are enforceable under Part
7 of the Regulatory Powers Act. The note under this subsection provides that Part 7
of the Regulatory Powers Act creates a framework for using injunctions to enforce
provisions.
Authorised person
196. Subsection 40(2) provides that, for the purposes of Part 7 of the Regulatory Powers
Act, the Secretary is an authorised person in relation to the provisions mentioned in
subsection 40(1).
197. This means that the Secretary can exercise powers of an authorised person under
Part 7 of the Regulatory Powers Act. Powers of authorised persons under Part 7 of
the Regulatory Powers Act include applying to a relevant court, under section 121 of
that Act, to grant an injunction in relation to conduct in contravention of the Bill or
the National Code.
Relevant court
198. Subsection 40(3) provides that, for the purposes of Part 7 of the Regulatory Powers
Act, each of the following courts is a relevant court in relation to the provisions
mentioned in subsection 40(1):
a. the Federal Court of Australia;
b. the Federal Circuit and Family Court of Australia (Division 2).
199. This means that the above courts have the power to determine certain matters
specified in Part 7 of the Regulatory Powers Act. For example, the granting of an
injunction the Secretary may apply for under section 121 of that Act.
Extension to external Territories
200. Subsection 40(4) provides that Part 7 of the Regulatory Powers Act, as that Part
applies in relation to the provisions mentioned in subsection 56(1), extends to every
external Territory.
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Part 7--Management of information
Division 1--Simplified outline of this Part
Section 41: Simplified outline of this Part
201. This section provides a brief outline of Part 7 of the Bill. It explains that Part 7
provides for the use, disclosure and publication of certain kinds of information
obtained under the Bill or legislative instruments made under the Bill.
Division 2--Management of information
Section 42: Authorised disclosure and use of protected information
202. This section provides for how disclosure and use of protected information is
authorised under the Bill. 'Protected information' under the Bill includes personal
information as defined under the Privacy Act. Under Australian Privacy Principle
(APP) 6, personal information can only be used or disclosed by the Secretary for the
purpose for which it was collected (known as the 'primary purpose'), or for a
secondary purpose if an exception in APP 6.2 applies. One such exception is where
the secondary use or disclosure is required or authorised by or under an Australian
law. Section 42 is an authorisation provision which enables the Secretary to use or
disclose personal information, consistent with this exception in APP 6.2.
Disclosure
203. Subsection 42(1) provides that the Secretary may disclose protected information
to:
a. the Minister; or
b. a person employed by the Minister under the Members of Parliament (Staff)
Act 1984; or
c. TEQSA for purposes connected with the performance of functions, or the
exercise of powers, of TEQSA; or
d. the National Student Ombudsman for purposes connected with the
performance of functions, or the exercise of powers, of the National Student
Ombudsman; or
e. an officer or employee of the Commonwealth or a State or a Commonwealth
body for purposes connected with the performance of functions or duties, or
the exercise of powers, by the officer or employee; or
f. an officer or employee of a State or Territory, or a State or Territory body, for
the purposes of:
i. enabling the State, Territory or body to undertake regulatory action
under a law of the State or Territory in relation to higher education
providers; or
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ii. assisting the State, Territory or body in eliminating, so far as is
possible, discrimination against persons on the ground of gender.
204. The note under this subsection provides that the terms 'Commonwealth body' and
'State or Territory body' are defined in section 5 of the Bill.
205. Subsection 42(2) provides that the Secretary may only disclose protected
information that is personal information (within the meaning of the Privacy Act) if
the Secretary is satisfied that the information will be appropriately protected after
the disclosure.
206. It is not anticipated that personal information will need to be disclosed often, and
the department will seek to minimise any disclosures of personal information. An
example of when it may be necessary to disclose personal information is if a
complaint or issue is raised with the department and it would be most appropriately
handed by an alternative body, for example, the National Student Ombudsman. This
provision will ensure that the department can share the complaint with the National
Student Ombudsman for action.
207. Subsection 42(3) provides that a person or body who obtains protected information
under subsection 42(1) may use or further disclose the information for the purposes
for which it was disclosed to the person or body under that subsection.
Use
208. Subsection 42(4) provides that the Secretary may use protected information:
a. for the purposes of promoting compliance with the Bill or legislative
instruments made under the Bill; or
b. in performing functions, or exercising powers, under the Bill or legislative
instruments made under the Bill.
209. The Secretary's powers to use protected information are appropriate and
necessary to ensure the Secretary can effectively regulate the Bill and the National
Code, given the serious nature of gender-based violence and the impact that it has
on the health and wellbeing of people who experience it. It is not anticipated that
personal information will need to be used often.
Protected information
210. Subsection 42(5) provides that, in the Bill protected information means:
a. personal information within the meaning of the Privacy Act; or
b. information relating to a higher education provider;
that was obtained under, or for the purposes of, the Bill or a legislative instrument
made under the Bill.
Section 43: Disclosing information to the public--general
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211. This section provides for how the Secretary may disclose information, that is not
personal information within the meaning of the Privacy Act, to the public.
212. Subsection 43(1) provides that, for the purposes of promoting compliance with the
Bill or any legislative instrument made under the Bill, the Secretary may disclose to
the public, in such manner as the Secretary considers appropriate, information
(other than personal information within the meaning of the Privacy Act) about the
following matters:
a. actions (if any) taken, in relation to a higher education provider, in
performing functions or exercising powers under Part 2 (monitoring) or Part 3
(investigation) of the Regulatory Powers Act (as those Parts apply because of
Part 6 of the Bill);
b. the results of taking actions referred to in paragraph (a), including:
i. recommendations for improvements that were given to a higher
education provider; and
ii. action (if any) taken by the provider to implement the
recommendations;
c. actions (if any) taken, in relation to a higher education provider, in
performing functions or exercising powers under Part 4 (civil penalty
provisions), Part 5 (infringement notices), Part 6 (enforceable undertakings)
or Part 7 (injunctions) of the Regulatory Powers Act (as those Parts apply
because of Part 6 of the Bill);
d. compliance notices given to a higher education provider under section 32.
213. This power will enhance transparency and hold providers accountable for their
performance in complying with the Bill and the National Code, it will also encourage
broader higher education provider compliance with the Bill and National Code and
deter non-compliance.
214. Subsection 43(2) provides that, before disclosing particular information to the
public under subsection 43(1) in relation to a higher education provider, the
Secretary must give the provider a written notice stating:
a. that the Secretary proposes to disclose information to the public in relation
to the provider; and
b. the particular information that is proposed to be disclosed; and
c. the manner in which the information is proposed to be disclosed; and
d. that the provider may give the Secretary, within 14 days after the day the
notice is given, a written response in relation to the proposed disclosure.
215. This provision will ensure that a higher education provider is aware that the
Secretary is intending to disclose information about them and has an opportunity to
respond to the proposed disclosure. The inclusion of a 14-day period within which to
provide a written response will ensure a higher education provider has sufficient
time to draft and make a submission.
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216. Subsection 43(3) provides that, in deciding whether to disclose information to the
public under subsection 43(1) in relation to a higher education provider, the
Secretary must take into account the response (if any) given by the provider under
paragraph 43(2)(d).
217. Subsection 43(4) provides that, if the Secretary discloses information to the public
under subsection 43(1) in relation to a higher education provider, the Secretary must
ensure that the information is accurate and kept up to date.
Section 44: Disclosing information to the public--information specified in the national
code
218. This section provides for how the Secretary may disclose information, that is not
personal information with the meaning of the Privacy Act, provided to the Secretary
to satisfy a requirement included in the National Code.
219. Subsection 44(1) provides that the Secretary may disclose to the public, in such
manner as the Secretary considers appropriate, any information provided to the
Secretary in accordance with a requirement included in the National Code for the
purposes of paragraph 17(2)(l) for any of the following purposes:
a. promoting and facilitating compliance with this Act and the national code;
b. assisting Australia in eliminating, so far as is possible, discrimination against
persons on the ground of gender.
220. The note under this subsection provides that paragraph 17(2)(l) does not apply to
personal information within the meaning of the Privacy Act.
221. Subsection 44(2) provides that, to avoid doubt, the Secretary may disclose
information under subsection 44(1) that relates to a higher education provider
without notifying the provider.
222. This provision will enable to Secretary to publish data about incidents and
responses to gender-based violence that providers will be required to submit to the
Secretary under the National Code. Information can only be published by the
Secretary if that publication is related to the purposes listed in subsection 44(1). This
data will enhance transparency and understanding of gender-based violence in the
higher education sector. It is appropriate that the Secretary is not required to notify
the provider of the publication of this data because the provider would have
collected and checked the data before submitting to the department.
53
Part 8--Miscellaneous
Division 1--Simplified outline of this Part
Section 45: Simplified outline of this Part
223. This section provides a brief outline of Part 8 of the Bill. It explains that Division 2 of
Part 8 provides for the application of certain enforcement provisions, including civil
penalty provisions and compliance notices, to be delayed. It further explains that
Division 1 of Part 8 deals with other miscellaneous matters, including annual
reporting, delegation and rules.
Division 2--Delayed application of certain provisions
Section 46: Delayed application of certain provisions
224. This section explains how the provisions of the Bill will apply to higher education
providers.
225. Subsection 46(1) provides that, in section 46 the term 'application day,' for a higher
education provider, means:
a. if the provider is a Table A provider (within the meaning of the Higher
Education Support Act 2003) or a Table B provider (within the meaning of
that Act)--1 January 2026; or
b. otherwise--1 January 2027.
226. Subsection 46(2) provides that a civil penalty provision of the Bill applies to a higher
education provider only in relation to an act or omission that occurs on or after the
application day for the provider.
227. Subsection 46(3) provides that section 32 applies in relation to non-compliance
with the Bill, or a legislative instrument made under the Bill, by a higher education
provider only if:
a. the Secretary is satisfied that the non-compliance occurred on or after the
application day for the provider; or
b. the Secretary is aware of information that suggests that the non-compliance
might have occurred on or after the application day for the provider.
228. Subsection 46(4) provides that Part 6 applies in relation to a higher education
provider only on and after the application day for the provider.
229. Subsection 46(5) provides that section 43 applies to information relating to a higher
education provider only on and after the application day for the provider.
230. This provision means that, whilst the provisions of the Bill will commence the day
after the Act receives the Royal Assent, and it is intended that the National Code
commence not long after this commencement, the provisions of the Bill under which
the Secretary can take compliance action in relation to a provider do not apply to a
provider until 1 January 2026 (for Table A and B providers) and 1 January 2027 (for
54
all other providers). That is, the Secretary cannot take any compliance action in
relation to conduct of a provider until after the relevant timeframe has passed.
231. The delayed application provision recognises that the National Code will impose a
suite of new requirements on providers in connection with preventing and
responding to gender-based violence and that providers will need time to
understand and meet these requirements before any enforcement action is taken.
Division 3--Miscellaneous
Section 47: Annual report
232. This section includes requirements for the Secretary to prepare an annual report.
233. Subsection 47(1) provides that the Secretary must, as soon as practicable after the
end of each financial year, prepare a report on the performance of functions and
exercise of powers under the Bill, and the operation of the National Code, during
that year. The note under this subsection provides that section 34C of the Acts
Interpretation Act 1901 also contains extra rules about annual reports.
234. Subsection 47(2) provides that the report under subsection 47(1) for a financial
year must include the following:
a. the number of times monitoring powers were exercised under Part 2 of the
Regulatory Powers Act (as it applies in relation to provisions of the Bill) during
the year;
b. the number of times investigation powers were exercised under Part 3 of the
Regulatory Powers Act (as it applies in relation to provisions of the Bill) during
the year;
c. trends (if any) in non compliance with the Bill or the National Code that were
identified during the year;
d. the number of compliance notices given during the year;
e. the number of infringement notices given during the year;
f. the number of enforceable undertakings accepted or enforced during the
year;
g. the number of proceedings instituted during the year, including civil penalty
proceedings and proceedings for an injunction;
h. actions (if any) taken by the Secretary during the year to educate or to build
capacity in the higher education sector in relation to preventing and
responding to gender based violence;
i. information about systemic issues (if any) in relation to gender-based
violence in the higher education sector during the year;
j. opportunities (if any) provided to higher education providers during the year
to improve compliance with the National Code;
k. trends (if any) in data and information collected under legislative instruments
made under the Bill;
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l. any other information the Secretary considers appropriate.
235. Subsection 47(3) provides that the report under subsection 47(1) for a financial
year must be included in the department's annual report for that financial year
prepared under section 46 of the Public Governance, Performance and
Accountability Act 2013.
236. The report will ensure transparency about the Secretary's exercise of powers and
functions under the Bill and legislative instruments made under the Bill, and publicly
hold the higher education sector to account on the prevention and response to
gender-based violence.
First annual report under this section
237. Subsection 47(4) provides that, for the purposes of subsection 71(1), the period
beginning on the day this section commences and ending on the next 30 June is
taken to be a financial year.
Section 48: Delegation by Secretary
238. This section provides for how the Secretary may delegate their powers under the
Bill and National Code.
Delegation of powers under this Act and legislative instruments made under this Act
239. Subsection 48(1) provides that the Secretary may, in writing, delegate any or all of
the Secretary's functions or powers under the Bill (other than section 32), or a
legislative instrument made under the Bill, to an APS employee who holds or
performs the duties of an Executive Level 1 position, or an equivalent higher
position, in the Department. The note under this subsection provides that sections
34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to
delegations, including in relation to the effect of delegations and the exercise and
performance of delegate functions or duties.
240. The Secretary's ability to delegate powers and functions under subsection 48(1) to
an Executive Level 1 employee or higher will support the efficient regulation of the
Bill and the National Code by ensuring staff at the appropriate level and with the
appropriate skills and expertise can exercise routine powers and functions under the
Bill, including the ability to request information and documents from higher
education providers. Enforcement powers and functions under the Bill would only be
able to be delegated to SES employees, or acting SES employees, including the
power to issue a compliance notice under section 32.
241. Subsection 48(2) provides that the Secretary may, in writing, delegate any or all of
the Secretary's functions or powers under section 32 (compliance notices) to an SES
employee, or an acting SES employee, in the Department. The first note under this
subsection provides that the expressions 'SES employee' and 'acting SES employee'
are defined in section 2B of the Acts Interpretation Act 1901. The terms are defined
56
as having the same meaning as in the Public Service Act 1999. The second note under
this subsection again provides that sections 34AA to 34A of the Acts Interpretation
Act 1901 contain provisions relating to delegations.
Delegation of powers under the Regulatory Powers Act
242. Subsection 48(3) provides that the Secretary may, in writing, delegate any functions
or powers the Secretary has under Parts 2, 3, 4, 5, 6 and 7 of the Regulatory Powers
Act (as those Parts apply because of Part 6 of the Bill) to an SES employee, or an
acting SES employee, in the Department. The first note under this subsection
provides that the expressions 'SES employee' and 'acting SES employee' are defined
in section 2B of the Acts Interpretation Act 1901. The second note under this
subsection again provides that sections 34AA to 34A of the Acts Interpretation Act
1901 contain provisions relating to delegations.
243. The delegation of these functions is appropriate to support the effective
enforcement of the Bill and legislative instruments made under the Bill. An SES
employee is sufficiently senior to exercise the powers in an appropriate way.
Limitation on delegations
244. Subsection 48(4) provides that, before delegating a function or power under
subsection 48(1), (2) or (3), the Secretary must have regard to:
a. if the function or power is delegated to an APS employee who holds or
performs the duties of a specified office or position--whether the office or
position is sufficiently senior for the employee to perform the function or
exercise the power; or
b. otherwise--whether the employee has appropriate qualifications or
expertise to perform the function or exercise the power.
Delegate must comply with directions
245. Subsection 48(5) provides that, in performing a function or exercising a power
delegated under this section, the delegate must comply with any written directions
of the Secretary.
Section 49: Compensation for acquisition of property
246. Subsection 49(1) provides that, if the operation of the Bill, or a legislative
instrument made under the Bill, would result in an acquisition of property (within
the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than
on just terms (within the meaning of that paragraph), the Commonwealth is liable to
pay a reasonable amount of compensation to the person.
247. Subsection 49(2) provides that, if the Commonwealth and the person do not agree
on the amount of the compensation, the person may institute proceedings in:
57
a. the Federal Court of Australia; or
b. the Supreme Court of a State or Territory;
for the recovery from the Commonwealth of such reasonable amount of
compensation as the court determines.
248. This section means that the Commonwealth is only liable to pay compensation if a
court finds that, in administering the Bill or the National Code, the Commonwealth
has acquired the property of a person (within the meaning of paragraph 51(xxxi) of
the Constitution) and in acquiring the property has not given the person just terms
(within the meaning of paragraph 51(xxxi) of the Constitution). Compensation would
not automatically be payable to a person simply because they are affected by the
operation of the Bill or the National Code. Rather, a person would have to
successfully argue that the operation of the Bill or the National Code had such an
effect on their existing property that it amounted to an acquisition of that property
for the purposes of the Constitution, and that in all the circumstances the acquisition
of that property was not on just terms.
Section 50: Rules
249. This section provides the Ministers power to make rules.
250. Subsection 50(1) provides that the Minister may, by legislative instrument, make
rules prescribing matters:
a. required or permitted by the Bill to be prescribed by the rules; or
b. necessary or convenient to be prescribed for carrying out or giving effect to
the Bill.
251. Subsection 50(2) provides that, to avoid doubt, the rules may not do the following:
a. create an offence or civil penalty;
b. provide powers of:
i. arrest or detention; or
ii. entry, search or seizure;
c. impose a tax;
d. set an amount to be appropriated from the Consolidated Revenue Fund
under an appropriation in the Bill;
e. directly amend the text of the Bill.
252. The Bill specifically provides for the following to be prescribed in the rules:
a. the kinds of records that must be kept, and the manner and form in which
the records must be keep, relating to the higher education provider's
compliance with the Bill and legislative instruments made under the Bill; and
b. the information that must be given by a higher education provider to the
Secretary, when the information must be given, the manner and form in
which the information must be given, and timeframes for the giving of
information.
253. Dealing with these matters in the rules rather than regulations accords with the
Office of Parliamentary Counsel's Drafting Direction No. 3.8 - Subordinate
legislation. That Drafting Direction states that 'OPC's starting point is that
58
subordinate instruments should be made in the form of legislative instruments (as
distinct from regulations) unless there is good reason not to do so'.
254. Consistent with the Drafting Direction, the approach of dealing with these matters
in the rules (rather than regulations) has a number of advantages including:
a. it facilitates the use of a single type of legislative instrument (or a reduced
number of types of instruments) being needed for the Bill; and
b. it enables the number and content of the legislative instruments under the
Bill to be rationalised; and
c. it simplifies the language and structure of the provisions in the Bill that
provide the authority for the legislative instruments; and
d. it shortens the Bill.
255. Due to these advantages, the Drafting Direction states that drafters should adopt
this approach where appropriate with new Acts.
256. The Drafting Direction states that matters such as compliance and enforcement,
the imposition of taxes, setting amounts to be appropriated, and amendments to the
text of an Act, should be included in regulations unless there is a strong justification
otherwise. The Bill does not enable the rules to provide for any of these matters.
This is clarified by subsection 50(2) that specifically prevents the rules from including
these types of matters.
257. This section also clarifies that the rules made under section 50 are a legislative
instrument for the purposes of the Legislation Act 2003. Under that Act, legislative
instruments and their explanatory statements must be tabled in both Houses of the
Parliament within 6 sitting days of the date of registration of the instrument on the
Federal Register of Legislation. Once tabled, the rules will be subject to the same
level of parliamentary scrutiny as regulations (including consideration by the Senate
Standing Committee for the Scrutiny of Delegated Legislation), and a motion to
disallow the rules may be moved in either House of the Parliament within 15 sitting
days of the date the rules are tabled.
258. Providing a power for the Minister to specify record keeping requirements in the
rules will provide sufficient flexibility for Government to ensure the record keeping
requirements appropriately reflect the requirements in the National Code and
support the department to effectively monitor and enforce compliance with the Bill
and the National Code.
259. Similarly, providing a power for the Minister to specify the information that must
be provided to the Secretary in the rules will ensure the Government has flexibility
to update the information requirements quickly if necessary to reflect any
amendments that are made to the National Code, or if the Secretary becomes aware
that they need additional details about higher education providers to effectively
exercise their powers and functions.
59
UNIVERSITIES ACCORD (NATIONAL HIGHER EDUCATION CODE TO PREVENT
AND RESPOND TO GENDER-BASED VIOLENCE) (CONSEQUENTIAL
AMENDMENTS) BILL 2025
NOTES ON CLAUSES - Consequential Bill
Clause 1: Short title
1. This is a formal provision specifying the short title of the Act to be the Universities
Accord (National Higher Education Code to Prevent and Respond to Gender based
Violence) (Consequential Amendments) Act 2025 (the Consequential Act).
Clause 2: Commencement
2. The table in this clause provides the commencement date for the provisions of the
Universities Accord (National Higher Education Code to Prevent and Respond to
Gender based Violence) (Consequential Amendments) Bill 2025 (Consequential Bill).
3. The whole of the Consequential Bill commences on the later of:
a. the start of the day the Consequential Act receives the Royal Assent; or
b. the commencement of the Universities Accord (National Higher Education
Code to Prevent and Respond to Gender based Violence) Act 2025.
However, the provisions do not commence at all if the event mentioned in
paragraph (b) does not occur.
Clause 3: Schedules
4. This clause provides that amendments to, or repeal of, legislation contained in the
Consequential Bill are set out in the Schedules to the Consequential Bill and any
other item in a Schedule to the Consequential Bill has effect according to its terms
Schedule 1--Amendments
Higher Education Support Act 2003
Item 1: At the end of Subdivision 19-C
5. This item amends the Higher Education Support Act 2003 (HESA) to insert new
section 19-20 in Subdivision 19-C (quality requirements).
6. New subsection 19-20(1) provides that a higher education provider that is a higher
education provider within the meaning of the Universities Accord (National Higher
Education Code to Prevent and Respond to Gender-based Violence) Act 2025 must
comply with the National Higher Education Code to Prevent and Respond to
Gender-based Violence (National Code) made under that Act.
7. This means that a higher education provider's non-compliance with National Code
may also have consequences for that provider's approval under HESA. For example,
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the Minister for Education could take action to suspend or revoke a provider's
approval under Division 22 of HESA. Including this requirement in HESA will help to
encourage and ensure compliance with the National Code by HESA approved
providers and would provide an additional regulatory tool for the department in
relation to serious and sustained non-compliance.
8. New subsection 19-20(2) provides that the requirement in new section 19-20 begins
to apply to a higher education provider:
a. if the provider is a Table A provider or a Table B provider (as defined in
HESA)--on 1 January 2026; or
b. otherwise--on 1 January 2027.
9. The application of this provision aligns with the application of the compliance
provisions in the Universities Accord (National Higher Education Code to Prevent and
Respond to Gender based Violence) Bill 2025.
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