Purpose of the Bill

The purpose of the Tertiary Education Quality and Standards Agency Amendment Bill 2018 (the Bill) is to amend the Tertiary Education Quality and Standards Agency Act 2011 (TEQSA Act) to give effect to the elements of the Government’s response to the Review of the Impact of the TEQSA Act on the Higher Education Sector (the Review of the TEQSA Act) requiring legislation.[1]

Tertiary Education Quality and Standards Agency background

Functions

The Tertiary Education Quality and Standards Agency (TEQSA) is the independent national quality assurance and regulatory agency for Australian higher education. All institutions providing higher education in Australia must be registered by TEQSA, and those without self-accrediting status must have courses accredited by TEQSA.[2] 

There are three key features of TEQSA’s regulatory operations:

• the TEQSA Commissioners, who head TEQSA and are responsible for making regulatory decisions, monitoring risk, and deciding on matters related to the Agency’s quality assurance and regulatory functions[3]
• the Threshold Standards, which higher education providers must meet as a condition of registration—these are the standards that TEQSA regulates against[4]
• the Higher Education Standards Panel (HESP), which consults with the higher education sector and advises the Minister about the Threshold Standards, and other matters relating to the standards.[5]

Establishment and subsequent changes

TEQSA was created as part of the Government’s response to the 2008 Review of Australian Higher Education (the Bradley Review), which recommended a national regulatory body to carry out quality assurance and accreditation functions.[6] The agency commenced operations under the TEQSA Act in January 2012.[7]

Following its establishment, TEQSA took several years to mature into its role. In 2013, the Review of Higher Education Regulation (the Lee Dow-Braithwaite Review) revealed widespread sector concern about TEQSA, and recommended the scope of TEQSA’s work be narrowed to focus on its core activities as a regulator.[8] The Government accepted this recommendation and gave effect to changes through Ministerial Direction No. 2 of 2013, which restricted TEQSA’s quality assessment activities, and amendments to the TEQSA Act in 2014.[9]

The Review of the TEQSA Act

The Review of the TEQSA Act is the first review to focus specifically on TEQSA since its establishment and subsequent changes. Section 203 of the TEQSA Act requires that ‘[t]he Minister must, before 1 January 2016, cause a review to be started of the impact on the higher education sector of this Act.’ The Review was commissioned on 12 December 2015, and reported in March 2017.[10] Unlike the earlier Lee Dow-Braithwaite Review, the Review of the TEQSA Act:

does not recommend changes that would significantly alter the current regulatory architecture established by the Act. Broadly, this Review finds that the Act is operating effectively and as intended. Some recommendations that seek to improve the TEQSA Act are made to place TEQSA and the regulatory and quality assurance system established by the Act on a stronger footing.[11]

The Government has committed to implementing most recommendations of the Review of the TEQSA Act.[12] However, as detailed later in this digest, some of the amendments proposed in the Bill respond to the issues raised in the review rather than specifically following its recommendations.

Committee consideration

Senate Standing Committee for the Scrutiny of Bills

At the time of writing, the Senate Standing Committee for the Scrutiny of Bills had not considered the Bill.[13]

Policy position of non-government parties/independents

At the time of writing no non-government parties or independents have commented on the Bill.

Position of major interest groups

At the time of writing no major interest groups have commented on the Bill.

Financial implications

According to the Explanatory Memorandum, there is no financial impact associated with the Bill.[14]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[15]

Parliamentary Joint Committee on Human Rights

At the time of writing, the Parliamentary Joint Committee on Human Rights had not considered the Bill.[16]

Key issues and provisions

The Review of the TEQSA Act did not find any major failings in TEQSA’s operations.[17] The key provisions proposed in the Bill aim to strengthen and simplify a number of different aspects of the TEQSA Act to improve TEQSA’s functioning.

Simplifying the Higher Education Standards Framework

TEQSA takes a standards-based approach to regulation. Currently, under section 58 of the TEQSA Act, the Higher Education Standards Framework (HES Framework) can comprise the following standards, made by legislative instrument by the Minister (or Research Minister in the case of the Research Standards):

(a)  the Provider Registration Standards

(b)  the Provider Category Standards

(c)  the Provider Course Accreditation Standards

(d)  the Qualification Standards

(f)   the Teaching and Learning Standards

(g)  the Information Standards

(h)  other standards against which the quality of higher education can be assessed and

(i)   the Research Standards.[18]

The ‘Threshold Standards’ are (a) to (d) listed above.[19] Providers must meet the Threshold Standards as a condition of registration as a higher education provider.[20] A range of powers are available to TEQSA to enforce this requirement under subsection 98(a), including shortening the provider’s period of registration (section 100) and cancelling registration (section 101).

Of the other standards—(f), (g) and (i)—the Review of the TEQSA Act observed:

The role of these ‘non-threshold’ standards is unclear. TEQSA’s responsibilities under the Act regarding registration and course accreditation refer only to the Threshold Standards ... No ‘non-threshold’ standards have been made.[21] [Emphasis added].

The purpose of Items 1 to 6 is therefore to, in accordance with recommendation 5.2.1 of the Review of the TEQSA Act, remove specific references to these non-Threshold Standards from the TEQSA Act, while retaining the option for the Minister to make new standards.[22] 

Item 1 proposes to remove the references to the Teaching and Learning Standards, Research Standards, and Information Standards from the definition of Higher Education Standards Framework in the dictionary in section 5.

Item 2 proposes to remove the definition of Research Standards from section 5.

Items 3 and 4 propose to remove references to the Research Standards from subsection 58(1).

Item 5 proposes to repeal paragraphs 58(1)(f) and (g), which list the Teaching and Learning Standards and the Information Standards (which do not form part of the ‘Threshold Standards’) as part of the HES Framework under section 58.

Item 6 proposes to repeal subsection 58(2), which specifies that the Research Minister may, by legislative instrument, make the Research Standards as part of the HES Framework. The Research Minister is defined under section 5 as the Minister administering the Australian Research Council Act 2001. This change would remove the Research Minister’s powers to make a standard.

These amendments retain the option at paragraph 58(1)(h) for the Minister to make ‘other standards against which the quality of higher education can be assessed’ by legislative instrument. According to the Review of the TEQSA Act:

The first reason for retaining power to make non-Threshold Standards is that a small number of providers were, rightly in the opinion of this Review, uncomfortable about the notion that the only Standards that could be made pursuant to the TEQSA Act are those dealing with ‘minimum acceptable requirements’. This is not to suggest that this Review, or the providers who raised this point, consider that the term ‘minimum’ implies ‘low’. Rather the point is that Standards of a different kind may be needed for a purpose other than the purposes served by the Threshold Standards. For example, it may be necessary to establish Standards with grades of compliance rather than Threshold Standards that are met or not met. It is possible that the objects of the Act set out in section 3, including protecting and enhancing excellence in higher education in Australia, may demand Standards of a different kind, in addition to the Threshold Standards, in the future.[23]

Items 7 to 12 make consequential amendments required by the removal of the Research Standards. These chiefly consist of technical wording changes to ensure section 58 consistently refers to ‘the Minister’. Where consultation with the Minister or Research Minister (as appropriate) is currently required, the Bill proposes to change this to ‘if the Minister is not also the Research Minister—the Research Minister’, which would ensure the Research Minister is consulted in the creation of any new standards.[24]

In addition, the Bill also removes requirements for the Research Minister to be consulted in relation to appointing new Commissioners, and appointments to the HESP.[25] These proposals are detailed in the relevant sections later in this digest.

Quality assessments

Section 60 of the TEQSA Act allows TEQSA to review or examine any aspect of an entity’s operations to:

• assess the level of quality of higher education provided by one or more registered higher education providers
• assess whether there are any systemic issues relating to a particular course of study leading to a particular regulated higher education award or
• assess the level of quality of, or whether there are any systemic issues relating to, the courses of study that lead to one or more kinds of regulated higher education awards.

However, following the 2013 Lee Dow-Braithwaite Review, the Ministerial Direction No. 2 of 2013 (the Direction) essentially revoked this power by requiring that TEQSA only undertake quality assessments ‘if TEQSA has surplus resources after fully achieving the above tasks and priorities [provider registration and re‑registration applications, course accreditation and re‑accreditation applications].’[26]

The Review of the TEQSA Act recommended amendments to the Act to bring these restrictions into the legislation in a more permanent form, by requiring that quality reviews under section 60 be undertaken only by direction from the Minister, drawing on advice from TEQSA, the HESP and other sector stakeholders.[27] The Review saw this as consistent with arrangements under the Direction, since quality assessments can currently only be undertaken if funding is provided for this purpose.[28]

However, while the Government accepted this recommendation in principle, it stated ‘if such assessments were “only by direction from the Minister”, this would potentially undermine TEQSA’s independence as the national regulator.’[29]

Item 14 therefore adds a requirement to section 60 that TEQSA must give written notice of any proposed quality review or examination to the Minister and the HESP at least 60 days before its commencement.

However, the Government’s response to the Review indicates it intends to repeal the Direction once the amendments proposed in the Bill have commenced.[30] This would effectively re-establish TEQSA’s ability to independently decide to undertake quality assessments, albeit with the new notice requirements.[31]

Offences related to use of the word ‘university’ by overseas providers

Under Part B of the Threshold Standards, a registered higher education provider is classified as:

• a Higher Education Provider—an Australian or overseas institution offering at least one accredited higher education qualification in Australia
• an Australian University—a self-accrediting institution that delivers undergraduate and postgraduate courses that meet the HES Framework across a range of broad fields, including Masters (Research) and PhD (Research) in at least three broad fields
• an Australian University College—an institution with plans to meet the criteria for an ‘Australian University’ or ‘Australian University of Specialisation’ within five years
• an Australian University of Specialisation—an ‘Australian University’ that is only required to offer qualifications and conduct research within one or two broad fields
• an Overseas University—a university that is recognised as such in its home country that meets criteria equivalent to the ‘Australian University’ category or
• an Overseas University of Specialisation—a university recognised as such in its home country that meets criteria equivalent to the ‘Australian University of Specialisation’ category.[32]

Currently, it is an offence for a regulated entity (that is, a registered higher education provider) to represent itself as a university when it is not registered as one of the categories that use the word ‘university’.[33] Subparagraph 108(1)(a)(ii) specifies that this applies in relation to an overseas course of study, ‘to the extent that the course of study is, or is to be, provided from Australian premises that are related to an overseas higher education award’.[34]

The Review of the TEQSA Act recommended a technical amendment to section 108 avoid uncertainty about whether, and the extent to which, overseas providers not registered with TEQSA can operate in Australia under their usual name if it includes the word ‘university’.[35] The Government’s response states:

Whilst the department and TEQSA currently manage this issue, clarification through an amendment will ensure overseas providers are clear on the regulatory expectations.

The Government therefore intends to amend section 108 to allow that a university can provide an overseas course of study in Australia under its own name without needing to be registered by TEQSA, as long as the provision is not ‘wholly or mainly’ from Australian premises.[36] 

Item 15 therefore proposes to amend subparagraphs 108(1)(a)(iii) and 2(a)(ii) to apply the civil penalty provisions for using the word ‘university’ inappropriately in the provision of an overseas course of study to a course that is, or is to be provided ‘wholly or mainly’ from Australian premises. This change clarifies that the circumstances in which the offence is committed, and allows for some limited operations in Australia by overseas universities not registered with TEQSA. In doing so, it brings section 108 into line with the meaning of regulated higher education award in section 6, which includes ‘an overseas higher education award offered or conferred for the completion of an overseas course of study provided wholly or mainly from Australian premises related to the award.’

Commissioners

Currently, TEQSA is headed by a Chief Commissioner and two other Commissioners.[37] Under section 133 of the TEQSA Act, a Chief Commissioner and up to four other Commissioners can be appointed.

Under sections 138 and 147, the Research Minister must be consulted about the appointment of Commissioners. The Bill proposes to remove this requirement:  

• Item 16 proposes to remove the requirement, currently in section 138, to consult the Research Minister on the appointment of TEQSA Commissioners
• Item 17 proposes to remove the requirement, currently in section 147, to consult the Research Minister on the appointment of an Acting Chief Commissioner or Acting Commissioner.

Under section 148, the Chief Commissioner must ensure that meetings are sufficient for the ‘efficient performance of TEQSA’s functions’. Under subsection 149(3), at a meeting of TEQSA, a quorum at a TEQSA meeting is constituted by 2 Commissioners.

However, under section 151, decisions can be made without a meeting, providing:

• all Commissioners were informed of the proposed decision, or reasonable efforts were made to inform them and
• a majority of Commissioners indicate agreement with the proposed decision.

The Review of the TEQSA Act recommends amending section 151 to bring it into line with the quorum requirements for meetings—that is, to make a decision without meeting, the agreement of two Commissioners would be required, rather than ‘a majority’.[38] However, the Government Response states that this:  

would be inconsistent with the formulation of ‘decision without meeting’ provisions for other Commonwealth entities ... the need for decisions without a formal meeting should be extremely rare and under normal circumstances would be unwarranted.[39]

Based on the inconsistency between sections 149 and 151 identified by the review, item 18 proposes to amend subsection 149(3) so that a quorum is ‘a majority of commissioners’, since ‘the currently specified quorum of two Commissioners is inappropriate when more than three Commissioners are appointed.’[40]  

Higher Education Standards Panel experience and responsibilities

The HESP is established by section 166 of the TEQSA Act. HESP members are appointed by the Minister by written instrument.[41] A list of current HESP members, appointed for the period 26 March 2018 to 25 March 2021, is available from the DET website.[42] Currently, when appointing HESP members, under paragraph 167(2)(a), the Minister must ensure members ‘collectively possess an appropriate balance of professional knowledge and demonstrated expertise, including in higher education and the development of quality standards’.

At December 2018, there are 127 non-university higher education providers on the national register maintained by TEQSA.[43] The Review of the TEQSA Act recommended the HESP contain members with experience and expertise in contemporary higher education provision, and provision by both university and non-university higher education providers. This was to be achieved by amending the TEQSA Act to add an explicit requirement to include experience and expertise in the provision of non-university higher education.[44] The Government accepted this recommendation.[45] Proposed paragraph 167(2)(aa) (item 19) therefore requires the Minister, in appointing members to the HESP, to ‘ensure the Panel members collectively have contemporary experience in the provision of higher education by higher education providers that are universities and that are not universities’.

Items 20 to 25 propose to revise the HESP’s functions as set out in Part 9. Currently, under subsection 168(1), the HESP:

• advises and makes recommendations to the Minister or the Research Minister on making and varying, and other matters relating to, the HES Framework, at the request of either Minister or the HESP’s own initiative and
• advises and makes recommendations to TEQSA on matters related to the HES Framework, at the request of TEQSA or the HESP’s own initiative.

Item 24 proposes additional responsibilities as set out in new paragraph 168(1)(c), which allows that if requested by TEQSA, or on its own initiative, the HESP advise and makes recommendations to TEQSA about:

• TEQSA’s strategic objectives, corporate plan, performance against that plan, reform agenda, streamlining of activities and resourcing requirements or
• approaches to deregulation, including by the application of principles relating to regulatory necessity, risk and proportionality in respect of different types of higher education providers.

Items 20 to 23 and 25 remove references to the Research Minister from Part 9, meaning the Research Minister will no longer have a role in relation to the HESP:

• Item 21 removes the requirement, currently in section 167, for the Minister to consult the Research Minister about proposed appointments to the HESP
• Item 22 removes advising and making recommendations to the Research Minister from the HESP’s functions in section 168
• Item 25 removes the requirement, currently in section 170, for the Minister to consult the Research Minister about the appointment of the HESP Chair 
• Items 20 to 23 make technical amendments to remove the remaining references to the Research Minister from Part 9.

Information sharing and disclosure

The Review of the TEQSA Act also made a number of recommendations in relation to information sharing and disclosure, to allow TEQSA to operate more effectively and to bring the provisions of the Act into line with the Higher Education Support Act 2003. As outlined below, higher education information sharing and disclosure arrangements currently apply to TEQSA’s activities under the TEQSA Act, to allow TEQSA to share information with certain entities, and to make unauthorised disclosure an offence.[46]

Section 5 defines higher education information as information, relating to a regulated entity:

(a)  that is obtained by TEQSA; and

(b)  that relates to TEQSA’s functions; and

(c)  that is not personal information (within the meaning of the Privacy Act 1988).

Under section 188, a person commits an offence, subject to a penalty of imprisonment for two years, if they disclose or use higher education information obtained because they are or have been an entrusted person (that is, a Commissioner, HESP member, TEQSA’s Chief Executive Officer, a member of TEQSA staff, or a TEQSA service provider), unless that disclosure or use is:

• connected with their duties as an entrusted person, or
• required or authorised by law.

Item 26 proposes an additional exception to section 188, covering instances where the regulated entity the information relates to has consented, in writing, to the disclosure or use.

In line with the exceptions currently in section 188 that higher education information may be disclosed when required or authorised by law, the TEQSA Act allows disclosure:  

• about proposed cancellations of registration—to a Minister of a state or territory responsible for higher education (section 190)
• about cancelling a provider’s registration or an accredited course of study, or restricting the number of students that may enrol in a course—to Tertiary Admissions Centres (section 191)
• to the Minister, their staff, or the Secretary (section 192)
• to professional bodies responsible for the regulation of an occupation (section 193)
• to a Royal Commission, or a Commonwealth, state, or territory authority as specified in the Information Guidelines—if TEQSA is satisfied that the disclosure is necessary to enable or assist it to exercise its functions or powers (section 194)[47]
• to a regulatory authority of another country—if cooperative arrangements exist with that other authority or country that relate to the assessment or regulation of higher education and releasing the information is consistent with those arrangements (section 195) and
• about anything done, or omitted to be done, under the TEQSA Act—to the public (section 196).

Item 27 proposes to repeal and replace section 192. Proposed section 192 retains the current provisions for TEQSA to disclose higher education information to the Minister, their staff, and the Secretary and adds:

• personal information (within the meaning of the Privacy Act 1988), if it relates to a regulated entity and TEQSA’s functions, may also be disclosed and
• disclosure can also be to an APS employee in the Department.

Item 28 would insert provisions to extend disclosure arrangements to researchers (proposed section 195A) and complainants (proposed section 195B).

Proposed section 195A would allow TEQSA to disclose higher education information to:

• a person employed or engaged by a regulated entity or
• a body determined by legislative instrument

provided it is for the purposes of research relating to the provision of higher education. However, proposed subsection 195A(2) provides that if the information was provided by a regulated entity, it can only be disclosed by TEQSA with that entity’s written consent.

Proposed section 195B would allow TEQSA to disclose higher education information to:

• a person who has made a complaint to TEQSA relating to a regulated entity’s compliance with the TEQSA Act or the Education Services for Overseas Students Act 2000 (under which TEQSA also has regulatory responsibilities), or a legislative instrument under either Act
• provided TEQSA is satisfied the information relates to the subject of the complaint.  

Items 29 and 30 make consequential and technical amendments to section 197 to ensure the proposed sections do not apply to national security information (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004).

The commencement information at item 2 and the application provisions at item 31 mean the proposals in this Bill are not retrospective. They will commence on or after the day the Tertiary Education Quality and Standards Agency Amendment Act 2018 commences. However, the information sharing and disclosure provisions will apply to information collected by TEQSA before as well as on or after the day the Act commences, meaning the new disclosure powers will apply retrospectively to information already collected by TEQSA before the amendments take effect.  

Concluding comments

The Bill proposes amendments to the TEQSA Act to give effect to the elements of the Government’s response to the Review of the TEQSA Act requiring legislation. While a number of these amendments relate to key features of the regulatory architecture for higher education in Australia, including the HES Framework, quality assessments, and the HESP, the proposed changes aim to achieve incremental improvements to TEQSA’s functions, rather than major changes.