As the bill's name suggests, this instrument is primarily about the setting of standards for universities. It is asserted that the measure's main purpose is raising standards within universities. It is claimed that its methodology is to apply the findings of the review that was undertaken in 2019 by Emeritus Professor Peter Coaldrake. It is further claimed that the process of setting standards is to simplify the processes for universities to follow.
The bill also proposes to:
amend the Tertiary Education Quality and Standards Agency (TEQSA) Act to provide for the TEQSA to:
include undergraduate certificates in its regulatory scope
extend a provider or course registration period, even if it has done so previously
not change a provider's registration category when requested by the provider
assume control of student records where a registered higher education provider ceases operations
prohibit use of the word 'university' in top-level domain names, unless approval is provided by the Minister and
amend the Higher Education Support Act 2003 to ensure that Indigenous student assistance grants cover support for prospective students.
In his final report, Professor Coaldrake identified the arrangements as:
The key issues raised by this Review, their accompanying recommendations, and the benefits to stakeholders, fall into three broad themes: fit for purpose, lifting cachet and reputation, and brand protection.
The review acknowledged the point raised by the research-intensive universities that any review of the Provider Category Standards (PCS) must be about enhancing excellence, not reducing it:
Any revision to the PCS must be framed around enhanced quality. It is critically important to maintain Australia's excellent international reputation for quality higher education.
The government officially accepted this premise in its response to the Coaldrake review:
New benchmarks for quantity and quality of research may require some Australian universities to increase research performance and output.
Yet upon examination of the evidence arising from this inquiry—in the context of the government's policy history in higher education—the gap between policy intent and delivery remain all too clear.
Maintaining our international reputation
There appears to be a confusion between the policy of simplification and the objective of enhanced research quality and increased performance. This confusion, given the under-resourcing of the regulator, TEQSA, and the government's stated objective of encouraging new entrants, may put at risk the international reputation of Australian universities in terms of their standards of teaching, research and civic engagement.
Labor Senators are concerned that TEQSA, the regulator primarily responsible for defending the integrity of the higher education system, is being asked to undertake this extra work with no extra resources:
Senator KIM CARR: Can you draw my attention to the additional funding you've been provided with to undertake this extra work?
Prof. Saunders: We've not been provided with any additional funding to undertake this work.
Senator KIM CARR: How will it be financed?
Prof. Saunders: That needs to be discussed with government, and it will be discussed with government.
Labor Senators call on the government to provide TEQSA with the resources that it needs to undertake the additional tasks associated with this bill.
University Colleges
Encouraging new private entrants to the higher education system is a long-term policy objective of the government. In that context, the government's response to Professor Coaldrake's recommendation on the issue of 'University Colleges' is particularly significant.
Professor Coaldrake recommended that 'Institute of Higher Education' be used:
The TEQSA Act 2011 uses the term 'higher education provider' to encompass both universities and other higher education providers. This is confusing to the public when one provider category is also given the dedicated title of 'Higher Education Provider'. Each provider category should have its own distinctive title. Therefore, this Review recommends the title 'Institute of Higher Education' be adopted for the current 'Higher Education Provider' category. Given that about half of the current providers in that category already use the term 'institute' in their trading titles, 'institute' was deemed a natural distinguishing title above other considered alternatives including 'academy', 'institution', or 'college'.
The category title will not have an impact on existing provider trading names. However, it will allow providers to market themselves as registered by TEQSA as an 'Institute of Higher Education'. As an example, a fictional Canberra College of Design may wish to market itself as 'Canberra College of Design, a registered Institute of Higher Education'.
This recommendation distinguishes the institutes from 'University Colleges', which could create confusion in the use of the term 'university'.
The government's use of the term 'University Colleges', however, potentially allows new entrants to be presented as universities though without the nomenclature of full universities and without the implications of the term 'university' in terms of standards for teaching and research.
The university sector is very concerned about the change and regards it as the thin end of the wedge to dilute the standards for new entrants.
Universities Australia told the committee:
As we have said, we would prefer the university college category not be used to describe things that did not conduct both research and teaching.
The National Tertiary Education Union put a similar view:
There were three issues in the bill that we have some concerns with. One is the use of the term 'university college' for the new category of high-performing non-university provider. We think a different term should be used rather than the term 'university college'. We have some concerns about the way that the research quality is being specified and what TEQSA needs to do to come up with an instrument to determine research quality.
It seems that the government has ignored these concerns as well as the first recommendation of the Coaldrake review:
Coaldrake Review Recommendation 1
There should be a simplification of the current provider categories. Our universities are currently over-categorised, while all other higher education providers are grouped in a single undifferentiated category. The current five university categories should be reduced to two categories and the current single category for other higher education providers (that are not universities) should be increased to two categories.
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Higher Education Provider
Australian University
Australian University College
Australian University of Specialisation
Overseas University
Overseas University of Specialisation
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Institute of Higher Education
National Institute of Higher Education
Australian University
Overseas University in Australia
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Source: Coaldrake, P. What's in a Name? Review of the Higher Education Provider Category Standards – Final Report, Commonwealth of Australia, October 2019, p. vii.
Recommendation
Labor Senators recommend that any reference to 'University College' should not be included in the regulations and instead replaced with 'Institute of Higher Education' as was the full intention of Recommendation 1 of the Coaldrake review. Furthermore, the provider categories should be listed in the primary legislation.
Threshold Standards
When combined with the government's efforts to introduce short course, vocational, competency based, teaching programs the conventional understanding of university teaching credentials takes on a new meaning. The drawing together of University and TAFE are again making it easier for private providers to enter the higher education categorisation.
The government appears uncertain as to as to what 'new and improved standards' actually mean. There is no recognised methodology of determining research quality. Excellence in Research Australia (ERA) underlies much of Professor Coaldrake's calculations. However, both TEQSA and the Department asserted other metrics might be applied when the provider (i.e. the new entrant) had insufficient quantity of research output to meet the requirements of ERA.
Following recommendation 4 of the Coaldrake review:
Along with teaching, the undertaking of research is, and should remain, a defining feature of what it means to be a university in Australia; a threshold benchmark of quality and quantity of research should be included in the Higher Education Provider Category Standards.
This threshold benchmark for research quality should be augmented over time.
That recommendation resulted in these draft criteria being developed by the Higher Education Standards Panel in amending the Higher Education Standards Framework:
The undertaking of research that leads to new knowledge and original creative endeavour and research training are fundamental to the status of a higher education provider as an 'Australian University'. To be registered and remain registered in the 'Australian University' category, the higher education provider:
(14)
from 1 January 2030, undertakes research at or above one or both of the benchmark standards described in B1.3 (16) that leads to the creation of new knowledge and original creative endeavour in:
(a)
at least three, or at least 50 per cent, of the broad (2-digit) fields of education in which it delivers courses of study, whichever is greater; or
(b)
all broad (2-digit) fields of education in which it has authority to self-accredit, in the case of a university with a specialised focus.
TEQSA will use existing national benchmarking exercises where they are available. Where they are not available, TEQSA will benchmark against standard indicators.
For the first ten years after entry to the 'Australian University' category a new entrant:
(15)
undertakes research at or above one or both of the benchmark standards described in B1.3 (16) that leads to the creation of new knowledge and original creative endeavour in:
(a)
at least three, or at least 30 per cent, of the broad (2-digit) fields of education in which it delivers courses of study, whichever is greater; or
(b)
all broad (2-digit) fields of education in which it has authority to self-accredit, in the case of a university with a specialised focus.
Following this period, the provider's research requirements will be assessed against the percentage set out in criterion B1.3 (14).
Where an 'Australian University' provider delivers courses of study in new broad (2 digit) field/s of education, the provider may request that those field/s not be considered in the quantum of fields for the purposes of compliance of this criterion for a period of no more than ten years from the commencement of those course of study offerings.
(16)
The benchmark standards for research are:
(a)
research that is 'world standard' measured using best practice indicators; and/or
(b)
research of national standing in fields specific to Australia, in the case of research that is not easily captured by existing standard indicators.
Standard indicators to be used in assessment may include (but are not limited to) peer-reviewed journal papers, rate of publication, weighted publications, success in competitive grant rounds and other direct funding, citation analysis, impact measures, and existing assessment exercises.
These criteria in some assessments will have significant ramifications. The Group of Eight have indicated that if these were adopted then the consequences would be:
An analysis of ERA 2018 results at ERA rating 3 for broad research fields (2-digit Field of Research) by the Go8 indicates that for institutions currently registered in the Australian University category:
3 institutions are under the 30 per cent level for the PCS standards up until 2030;
A further 2 institutions are under the 50 per cent level for 2030 PCS standards; and
A further 4 institutions may be considered 'at risk' between 50 per cent and 60 per cent.
These 9 institutions represent a full-time domestic student load of approximately 80,000 or 11% of Australia's domestic university student load.
The University of Sydney, in its submission on the related bill (the Higher Education Support Amendment (Job-Ready Graduates and Supporting Regional and Remote Students) Bill 2020) commented:
This will either mean that some current universities will potentially fail to meet the new threshold due to the lack of research capacity (partly as a result of the impact of COVID-19) or reinforce the fundamental structural flaw in research funding outlined above.
The department has claimed both that no university would be adversely affected and that some would be affected:
Analysis of 2018 ERA data suggests that all public Australian universities would meet the proposed initial research quality benchmark requiring research at or above world-class standard that leads to the creation of new knowledge and original creative endeavour in at least three, or at least 30 per cent, of the broad fields of education they deliver (all fields for specialised universities). However, it is arguable that some of Australia's smaller private universities may struggle to meet these standards if assessed on ERA ratings alone. This is partly due to low volume thresholds applied through the ERA assessment process which requires a minimum of 50 research publications in a field of research in order to receive a rating against that field of research.
…
No university has indicated any concern or risk that they would not satisfy the benchmark. This is a testament to the already high quality of research in Australia. If they have a concern, however, both TEQSA and the department are available to discuss options to guide institutions toward improved performance or greater specialisation that would enable them to meet the standards.
This indicates to Labor Senators that standards are so low that universities will meet them given the time lag involved and given that the government has not spelt out any additional resources that would be available to achieve this end. It raises that question as to whether the government is confident that the standards are sufficiently rigorous.
Indeed, it raises the broader question of what is the point of standards if the bar is so low?
Consequences of regulatory failure
The consequences of failure here are profound, with the history of regulatory failure in Australia scattered with higher education examples.
Failures of ministerial discretion, delegated powers, assessment of new entrants to the system and misuse of the title 'university' were all issues that arose in the Greenwich University scandal of the early 2000s, which ultimately led to the National Protocols for Higher Education Approvals Processes.
Greenwich University was an institution established on Norfolk Island, which had a Chancellor who was a convicted embezzler, a Vice-Chancellor who had bought some titles to the Russian throne, and it had been allowed to use the term 'university' because the Minister for Regional Affairs at the time, Senator Macdonald, had directed the Legislative Assembly of Norfolk Island to sign off on it.
Greenwich University established its own degrees. It had teaching staff and accredited their own PhDs to provide them with necessary qualifications.
This is just one of several examples Australia has seen over the past 20 years and this bill does not do enough to prevent a recurrence of such events.
Parliamentary oversight
Parliamentary scrutiny is an important part of legislative and regulatory oversight in Australia, but unfortunately this bill seeks to limit that scrutiny.
Parliamentary oversight is a matter of deep concern for Labor Senators especially given the history of regulatory failure in this sector.
The Senate Standing Committee for the Scrutiny of Bills has made very pertinent remarks on this matter. Primarily, that consultation should occur prior to the bill being presented and the key threshold standards should have been identified in the primary legislation.
In his correspondence with the Scrutiny of Bills Committee, the Minister notes that the Threshold Standards were created by Commonwealth and state/territory higher education ministers in 2000, with revisions and edits in 2007, 2013 and 2015. Labor Senators note that these are matters that undergo constant monitoring, review and updating, and, given this, are at a loss as to why the government is choosing to reinvent in the wheel and withhold detail from the primary legislation.
The government's assertion that to do otherwise would be an impediment and would create 'barriers to innovation' is not persuasive, especially given that the Minister has provided no examples of what he means by this.
Labor Senators agree with the Scrutiny of Bills Committee that, from a scrutiny perspective, there are concerns that significant matters, such as the standards making up the Higher Education Standards Framework, and matters relating to how the quality of research undertaken by higher education providers will be assessed, should be included on the face of primary legislation.
Incorporating the standards into the primary legislation would not prevent changes being made to the standards, while at the same time such an approach would provide a higher level of parliamentary oversight and control as compared with delegated legislation.
The Minister's advice to the Scrutiny of Bills Committee that a long period of consultation has been undertaken in relation to reviews of the standards shows the significant nature of the standards and their impact on the sector, thus making them more appropriate for the full scope of parliamentary scrutiny via their inclusion in primary legislation.
Labor Senators also agree with the Scrutiny of Bills Committee that it is unclear why the same level of consultation could not be undertaken prior to introducing primary legislation to amend the standards into the Parliament. In this regard, it would be possible to include a requirement for regular review of the standards on the face of the primary legislation.
As it currently stands the safeguards that ensure standards are adequate and sector specific are not provided in this bill.
Recommendation
That the government accept the recommendation of the Scrutiny of Bills Committee, that an addendum to the explanatory memorandum containing the key information provided by the minister be tabled in the Parliament as soon as practicable, noting the importance of these explanatory materials as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).
Conclusion
Much of this bill concentrates on research standards. ERA remains the best means of judging performance against standards. It is the responsibility of the Australian Research Council to ensure that ERA is not diminished by gaming or rorting. It is the ARC's responsibility to ensure that ERA remains fit for purpose; that should be the focus of the current ARC review into ERA.
Given the limited research funding that is available, it is important that the national interest is pursued by ensuring excellence of research effort in the development of key national priorities and industries. While the government has promised short-term relief to the crisis in the form of its $1 billion research fund for 2020–21, the long-term funding crisis for Australian research remains.
The government's decision to remove research funding from allocations to Commonwealth Supported Places has made this issue more acute. Spreading limited research funding too thinly will only endanger Australia's international reputation. Drawing research excellence at scale is the best defence of national capabilities. The lowering of standards will equally undermine our ability to develop research excellence and attract international students, and it will weaken international research collaborations. New entrants cannot be allowed to dilute the quality or reputation of the Australian higher education system.
From a national interest perspective, the application of the Provider Category Standards is not an abstract or an obscure policy matter. We do not want to see a repeat of policy disasters like Greenwich and the international student policy farce of the past.
Building a university system of the highest quality and integrity requires persistent and determined regulatory effort. Parliamentary scrutiny should be a matter of the highest priority to maintenance of excellence in our university system.
Senator Louise PrattSenator the Hon Kim Carr
Deputy ChairParticipating Member