Background
Tertiary Education Quality and Standards Agency (TEQSA)
2.1
TEQSA is Australia's independent national quality assurance and regulatory agency for higher education. It was established under the TEQSA Act as part of the government's response to the 2008 Review of Australian Higher Education.
2.2
More broadly, the TEQSA Act instituted a national system of regulation to assure the quality of higher education providers through a standards-based quality framework currently known as the Higher Education Standards Framework (Threshold Standards) 2015 (the HES Framework).
2.3
The HES Framework forms the basis for TEQSA's regulation of higher education providers and courses. Among other activities, TEQSA's regulatory functions include registering higher education providers and accrediting their courses of study, conducting compliance and quality assessments, and providing advice and recommendations to the Commonwealth Minister for Education on matters relating to the quality and regulation of higher education providers.
The HES Framework
2.4
The HES Framework is developed and maintained by the Higher Education Standards Panel (HESP). The HESP was also established under the TEQSA Act and provides advice to the Minister for Education on how to maintain the quality and standards of Australia's higher education system.
2.5
There are two parts to the HES Framework:
Part A—Standards for Higher Education, which represent the minimum acceptable requirements for higher education provision, organised into seven domains:
Student Participation and Attainment;
Research and Research Training;
Institutional Quality Assurance;
Government and Accountability; and
Representation, Information and Information Management.
Part B—Criteria for Higher Education Providers, which includes:
Classification of Higher Education Provider Categories; and
Seeking Authority for Self-Accreditation of Courses of Study.
2.6
The Threshold Standards are a subset of the HES Framework and are specified under subsection 58(1) of the TEQSA Act. The following Threshold Standards have been made by the Minister for Education under paragraphs 58(1)(a) to (d) inclusive:
Provider Registration Standards;
Provider Category Standards;
Provider Course Accreditation Standards; and
2.7
Before making a standard under subsection 58(1), the Minister must have consulted the Council comprising the Commonwealth, state and territory Ministers responsible for higher education, the Commonwealth Research Minister, and TEQSA. A draft standard must also have been developed by the HESP, including consultation with 'interested parties'.
Review of the Higher Education Provider Category Standards
2.8
The Provider Category Standards (PCS) are one of the Threshold Standards under the HES Framework. They define higher education provider categories—Higher Education Provider (the basic classification), Australian University, Australian University College, Australian University of Specialisation, Overseas University and Overseas University of Specialisation—and set out the requirements for registration under each category.
2.9
The 2017–18 Budget included a measure to review the PCS (the PCS review). The PCS review was completed in 2019 by Emeritus Professor Peter Coaldrake AO, with all ten of its recommendations accepted by the government. The central recommendation of the review was to simplify and enhance the higher education provider categories by:
reducing the number of domestic university categories from three to one (Australian University);
reducing the number of overseas university categories from two to one (Overseas Universities); and
enhancing the categories for non-university providers by introducing a second category for providers with a track record of high-quality delivery and learning outcomes (Institutes of Higher Education) and a new category of provider called University Colleges.
Review of the impact of the TEQSA Act on the higher education sector
2.10
The TEQSA Act required the Minister for Education to commence a review of its impact on the higher education sector before 1 January 2016. The review of the impact of the TEQSA Act on the higher education sector (the impact review) was undertaken by Deloitte Access Economics in 2016–17.
2.11
While the majority of the review's recommendations were addressed in a previous bill, one recommendation—to simplify framing of the Threshold Standards in the TEQSA Act—was deferred until completion of the PCS review.
2.12
The relevant recommendation (Recommendation 5.2.2) is set out below:
The TEQSA Act should be amended to remove references to the categories of Threshold Standards, that is, the Act should not require the development of Provider Standards (the Provider Registration Standards, the Provider Category Standards and the Provider Course Accreditation Standards) and Qualification Standards. This amendment, and related consequential amendments, should not come into operation until the next formal review of the 2015 Threshold Standards.
2.13
This recommendation responded to a suggestion made by the HESP to specify the standards framework as a unified whole, rather than as separate standards. The HESP argued this would better match the structure of the HES Framework, which is based around the operational lifecycle of a provider. In the discussion accompanying this recommendation, Deloitte also noted the considerable drafting effort that went into making the Threshold Standards conform to the specified categories and acknowledged that the categories added a layer of complexity that the HESP found unnecessary.
Higher Education Legislation Amendment (Provider Category Standards and Other Measures) Bill 2020
2.14
The bill would give effect to the remaining recommendation of the impact review (relating to changes to the Threshold Standards), as well as recommendations of the PCS review that require a legislative response. The bill would also enact a number of measures intended to strengthen TEQSA's administration and its regulatory role.
2.15
The amendments to the TEQSA Act contained in the bill are consequential to the changes to the Threshold Standards themselves, which will be remade through a new legislative instrument if the bill is passed.
2.16
The Minister noted the changes to Threshold Standards have been drafted by the HESP, as required by section 58 of the TEQSA Act. He also noted the commencement date for the related provisions in the bill would be fixed by proclamation so they take effect on the same day as the new Threshold Standards instrument (expected to be 1 July 2021).
Streamlining the HES Framework
2.17
The bill would enact the recommendation from the impact review to remove reference to individual Threshold Standards from the TEQSA Act by repealing the list of five standards that currently comprise the HES Framework and replacing it with the following list:
other standards against which the quality of higher education can be assessed.
2.18
This would present the Threshold Standards as a single unified framework, instead of four distinct standards.
2.19
Further related amendments to the TEQSA Act would remove references to individual standards and replace definitions as follows:
Item 2 would repeal and substitute the definition of Higher Education Standards Framework in Section 5—the new definition being the Threshold Standards and any other standards made under paragraph 58(1)(b).
Item 3 would amend the definition of provider category in Section 5 so it means a provider category listed in the Threshold Standards, instead of a provider category listed in the Provider Category Standards. If the new Threshold Standards come into effect, the provider categories will be described in a separate part of the Threshold Standards (rather than in separate Provider Category Standards).
Item 4 would repeal the definitions of Provider Category Standards, Provider Course Accreditation Standards, and Provider Registration Standards in Section 5 as they would no longer be used (their content would be captured in the Threshold Standards).
Item 5 would repeal and substitute the Section 5 definition of Threshold Standards—the new definition being the Threshold Standards made under paragraph 58(1)(b).
2.20
Other minor amendments to the TEQSA Act would omit Provider Course Accreditation Standards and substitute Threshold Standards.
Simplifying and enhancing the higher education provider categories
2.21
At the request of the Minister for Education and as required by Section 58 of the TEQSA Act, the HESP has proposed changes to the HES Framework. These changes are designed to give effect to the PCS review recommendations to simplify and enhance the higher education provider categories.
2.22
The HESP's proposed changes reduce the number of university provider categories from five to two (Australian University and Overseas University) and increase the number of non-university provider categories from one to two (Institute of Higher Education and University College).
2.23
The bill would make complementary amendments to the TEQSA Act in order to accommodate the proposed changes, including:
Minor changes to language used in the TEQSA Act would reflect the new provider categories. References to "a provider category that permits the use of the word 'university'" would be replaced with references to either the Australian University or Overseas University categories, to account for the introduction of the new University College category (high quality non-university providers that would be permitted to use the term 'university' in their name).
In relation to self-accreditation, registration in the new Australian University category would not confer an automatic authority to self-accredit courses of study if the university has a specialised focus in accordance with the Threshold Standards. These universities would need to seek either TEQSA accreditation of courses outside their specialised fields of education, or the authority to self-accredit such courses.
Clarification that some providers will be 'authorised to self-accredit some or all of their courses of study' (rather than the previous 'authorised to self-accredit their courses of study').
Introducing research quality measures
2.24
The current Threshold Standards contain the following research requirement for higher education providers seeking approval as an Australian University, Australian University College or Australian University of Specialisation:
The higher education provider undertakes research that leads to the creation of new knowledge and original creative endeavour at least in those broad fields of study in which Masters Degrees (Research) and Doctoral Degrees (Research) are offered.
2.25
However, the Threshold Standards do not specify the quality or quantity of research required, or how this should be measured or assessed. Recommendation 5 of the PCS review stated that:
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.
2.26
The bill responds to this recommendation and proposes the inclusion of a section that would require TEQSA to have regard to the quality of research undertaken by an entity or provider that:
applies to TEQSA for registration within the Australian University category; or
applies to change to the Australian University category.
2.27
In addition, the bill would require TEQSA to have regard to research quality in relation to providers already registered in the Australian University category—for example, when making decisions about registration renewal in that category or undertaking compliance assessments under section 59 of the TEQSA Act.
2.28
To support this requirement, the bill would enable TEQSA to make a determination, by legislative instrument, setting out the factors it will consider when assessing the quality and quantity of research.
Assuming control of higher education student records
2.29
The Job-ready Graduates Package of higher education reforms included a measure to provide TEQSA with the legislative authority to assume control of higher education student records from a registered higher education provider in the event the provider ceases operations.
2.30
To give effect to this measure, the bill would add a proposed subdivision C (student records), which is comprised of the following proposed sections:
197AA—higher education student records to be provided to TEQSA;
197AB—TEQSA may request higher education student records;
197AC—provision of higher education student records to another registered higher education provider;
197AD—TEQSA's management of higher education student records; and
2.31
The Explanatory Memorandum notes that, while not explicitly stated in the provisions, students would have access to their personal information held by TEQSA under the Privacy Act 1988 and the Australian Privacy Principles to which TEQSA is subject.
2.32
A definition of higher education student records, covering documents or objects in any form (including electronic form), would be inserted into
Section 5 of the TEQSA Act.
Other amendments to the TEQSA Act
2.33
The bill proposes a number of other amendments to the TEQSA Act that aim to improve higher education regulation.
Expanding the definition of a higher education award
2.34
Section 5 of the TEQSA Act defines higher education awards (for example 'a diploma, advanced diploma, associate degree, bachelor degree, graduate certificate, graduate diploma, masters degree or doctoral degree').
2.35
The bill would expand the definition of 'higher education award' in the TEQSA Act by adding 'undergraduate certificate' after 'bachelor degree'. This reflects an agreement by the Council of Australian Government Education and Skills Councils to include Undergraduate Certificate in the Australian Qualifications Framework (from May 2020 to December 2021, unless extended by the Councils) as a qualification to upskill workers displaced by COVID-19.
Extending registration periods
2.36
Currently, TEQSA may extend the period of a higher education provider's registration—so long as the period has not been extended previously by TEQSA. The bill would remove this qualifying statement, enabling TEQSA to extend registration periods more than once.
Allowing review of decisions not to change a provider's registration category
2.37
The TEQSA Act currently enables TEQSA to change the category in which a provider is registered, either on application by the provider or on its own initiative.
2.38
The bill would clarify that TEQSA may decide not to change a provider category in response to an application by a provider made under paragraph 38(1)(b). This addition would enable decisions not to change a provider's category to be reviewed by the Administrative Appeals Tribunal.
2.39
The bill would also require TEQSA to:
have regard to the Threshold Standards when making decisions about changing provider categories; and
notify providers in writing of decisions related to changing provider categories.
Protecting the word 'university' in Australian internet domain names
2.40
Use of the word 'university' in an entity's name is protected by the Provider Category Standards. However, no protections currently apply to its use in domain names.
2.41
This bill would insert a section into the TEQSA Act to specify that a licence must not be issued for a domain name that includes the word 'university'—or a word of expression with the same or similar name to the word 'university'—unless the Minister has provided written approval.
Amending the Higher Education Support Act 2003
2.42
Schedule 2 to the bill would amend the Higher Education Support Act 2003 to replace references to 'Indigenous Students' with 'Indigenous Persons' and clarify the purpose for which grants under Part 2-2A may be made to higher education providers. These amendments would confirm the existing arrangement that providers can use Indigenous student assistance grants to assist prospective Indigenous students as well as existing Indigenous students.
2.43
Item 5 would also insert a new definition for Indigenous person into Schedule 1 of the Higher Education Support Act 2003. This definition would be the same definition as in the Indigenous Education (Targeted Assistance)
Act 2000.
Consideration by the Senate Standing Committee for the Scrutiny of Bills
2.44
The Senate Standing Committee for the Scrutiny of Bills considered the bill in the Scrutiny Digest 13 of 2020.
2.45
The Scrutiny of Bills Committee raised concerns about the use—without sufficient justification—of delegated legislation to establish the Threshold Standards, as well as the approach to assessing the quality of research undertaken by higher education providers.
2.46
The Scrutiny of Bills Committee also pointed to the relative stability of the Threshold Standards since they came into force in 2011 as another argument for their inclusion in primary legislation, stating that:
It is therefore unclear to the committee why these important standards, which are central to the regulation and reputation of the higher education sector in Australia, cannot be included on the face of the primary legislation. Similarly, it is unclear to the committee why it would not be possible to set out in primary legislation matters relating to how the quality of research undertaken by higher education providers will be assessed, rather than leaving these matters to be determined in a legislative instrument made under proposed subsection 59A(7).
2.47
Accordingly, the Scrutiny of Bills Committee requested the Minister provide advice as to:
why it is considered necessary and appropriate to leave 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, to delegated legislation;
whether the bill can be amended to include the standards and matters relating to how the quality of research undertaken by higher education providers will be assessed on the face of the primary legislation; and
if it is not considered appropriate to include the standards and matters relating to the quality of research on the face of the primary legislation, whether at least high-level guidance in relation to what may be included in the standards made under proposed subsection 58(1) and instruments made under proposed subsection 59A(7) can be set out in the primary legislation.
2.48
In response, the Minister advised it was appropriate for the Threshold Standards—including the research benchmarks—to remain in delegated legislation given the need for ongoing monitoring and review in response to evolving practice. The Minister also pointed to the protections built into the process for making or amending the Threshold Standards, which include scrutiny by stakeholders, expert advice from the HESP, state and territory government input and Parliamentary review. The Minister further argued that:
…while primary legislation can appropriately constrain a delegated legislation-making process, it would be unusual to similarly constrain the power of Parliament to make changes if the Threshold Standards were incorporated directly within the TEQSA Act. This could put at risk the acceptance, ownership and effective consent of those being regulated to the terms on which their operation is permitted.
2.49
In terms of providing high-level guidance in the TEQSA Act, the Minister noted that this could work against future reform and innovation:
…precedence and consensus play a very significant role in guiding the evolution or replacement of content within the Threshold Standards, to the point that any guidance overlayed by provisions of the TEQSA Act could be seen as stifling the opportunity for reform and innovation. Indeed, amendments in the Bill respond to advice from the Panel and independent review findings that even the very high level guidance previously embedded in the TEQSA Act was unhelpful and should be removed.
2.50
While it welcomed the Minister's response, the Scrutiny of Bills Committee reiterated its concern about the Threshold Standards being established via delegated legislation. It argued that including the Threshold Standards in primary legislation would not prevent future changes and could still allow for extensive consultation processes.
Compatibility with human rights
2.51
The statement on compatibility with human rights for the bill concluded it is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
2.52
The Parliamentary Joint Committee on Human Rights made no comment on the bill as it found it '[does] not engage, or only marginally engage[s], human rights; promote[s] human rights; and/or permissibly limit[s] human rights'.
Financial impact statement
2.53
The student records management provisions in the bill are expected to cost the Australian Government $2 million over four years from 2020–21. The other measures in the bill have no financial implications.