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Senate

Higher Education Legislation Amendment (Provider Category Standards and Other Measures) Bill 2020

Revised Explanatory Memorandum

(Circulated by authority of the Minister for Education, the Honourable Dan Tehan MP)
THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY THE HOUSE OF REPRESENTATIVES TO THE BILL AS INTRODUCED AND ADDRESSES MATTERS RAISED BY THE SENATE SCRUTINY OF BILLS COMMITTEE

OUTLINE

The Higher Education Legislation Amendment (Provider Category Standards and Other Measures) Bill 2020 ( the Bill ) proposes to amend the Tertiary Education Quality and Standards Agency Act 2011 ( TEQSA Act ) to:

give effect to the Commonwealth Government's decision to implement the recommendations arising from the Review of the Higher Education Provider Category Standards ( PCS Review );
give effect to an outstanding recommendation from the Review of the impact of the TEQSA Act on the higher education sector ( Impact Review ), to refer to the Threshold Standards as a single unified framework; and
improve regulation of Australia's higher education sector through a small number of other measures, including to ensure student records can be appropriately handled following a provider ceasing to operate and to protect the term 'university' as it appears in Australian internet domain names.

The Bill also proposes to amend the Higher Education Support Act 2003 ( HESA ) to:

replace references to 'Indigenous students' with 'Indigenous persons' to provide clarity around the scope of 'Indigenous Student Assistance Grants'.

The 2017?18 Budget included a measure to undertake a review of the Higher Education Provider Category Standards, which are part of a legislative instrument, the Higher Education Standards Framework (Threshold Standards) 2015 ( the Threshold Standards ). The PCS Review, undertaken by Emeritus Professor Peter Coaldrake AO in 2018-19, recommended amendments to the Provider Category Standards to ensure they support the Government's goals for a diverse and high-quality higher education sector that meets the needs of students, employers, higher education providers and the wider community, with category standards that are fit for purpose for the future.

At the Minister's request, and as required by Section 58 of the TEQSA Act, the Higher Education Standards Panel ( the Panel ), which advises the Commonwealth Minister for Education on changes to the Higher Education Standards Framework and on higher education quality and regulatory matters, proposed amendments to the Threshold Standards to give effect to the PCS Review recommendations. To accommodate these proposed amendments to the Threshold Standards, complementary amendments are also proposed to be made to the TEQSA Act by this Bill to ensure that the Threshold Standards can be made as proposed. Should this Bill be enacted, new Threshold Standards, in the form proposed by the Panel, will therefore be made by legislative instrument, with both the legislative instrument and relevant provisions of the Bill to come into effect on the same date, to be fixed by proclamation.

In particular, the measures in Schedule 1 of the Bill will:

amend a small number of references to provider category types, to reflect the new provider category names. References to ''a provider category that permits the use of the word "university"' will be replaced with references to either the 'Australian University' or 'Overseas University' provider category, to account for the introduction of the new 'University College' category for high quality, high-performing non-university providers (which will be permitted to use the term 'university' in their name);
enable TEQSA to make a determination setting out factors it will take into consideration when assessing the quality of research under new university research benchmarks; and
clarify references to the type of self-accrediting authority for 'Australian University' category providers (as required to give effect to the introduction in the Threshold Standards of a subset of the 'Australian University' category of universities that have a 'specialised focus', and which do not have full self-accrediting authority).

The Impact Review was conducted by Deloitte Access Economics in 2016-17, in accordance with section 203 of the TEQSA Act, which required that, before 1 January 2016, the Minister commence a review of the impact of the TEQSA Act on the higher education sector. The majority of amendments required to respond to this review were made through the Tertiary Education Quality and Standards Agency Amendment Act 2019. The outstanding recommendation, which was deferred until after completion of the PCS Review, proposed reframing references to the Threshold Standards in the TEQSA Act as a single unified framework, instead of four distinct types of Threshold Standards. This amendment will enable the structure of the Threshold Standards instrument to be simplified, making it clearer to read and use.

Other measures to improve higher education regulation given effect by the Bill will:

include reference to the Australian Qualifications Framework qualification type 'undergraduate certificate' in the definition of 'higher education award';
allow TEQSA to extend the period of a provider's registration or course accreditation more than once, which will help TEQSA manage its regulatory workload better and provide low-risk providers with additional flexibility;
allow merits review of a decision by TEQSA not to change a provider's category;
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 (and to allow students and providers to request access):

o
This measure is part of the Government's Job-ready Graduates package, and will help current and former higher education students obtain access to their academic records in the event that a registered higher education provider ceases to operate;
o
The measure will provide TEQSA with similar legislative powers to those conferred on the Australian Skills Quality Authority (ASQA) in sections 211 to 214 of the National Vocational Education and Training Regulator Act 2011, which require registered training organisations to provide ASQA with a copy of their student records within 30 days of ceasing operation.

protect use of the word 'university' in Australian internet domain names, by requiring consent of the Minister to use a domain name containing the word 'university' or words or expressions that have the same or similar meaning.

The amendments in Schedule 2 of the Bill will replace references to 'Indigenous student' with 'Indigenous person' in Part 2-2A of HESA to ensure that providers can use Indigenous student assistance grants to assist prospective Indigenous students as well as existing students.

Overall, the amendments are intended to help clarify and streamline the regulatory framework for the benefit of higher education providers, students and potential students.

Senate Scrutiny of Bills Committee

In Scrutiny Digest No. 13 of 2020, the Senate Scrutiny of Bills Committee requested the Minister's advice about the appropriateness of leaving 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, to delegated legislation.

In Scrutiny Digest No. 16 of 2020 the Committee requested that key information provided by the Minister to the Committee be included in the Explanatory Memorandum to the Bill. That information is as follows.

Should the Threshold Standards remain as a standalone legislative instrument or be incorporated into the TEQSA Act?

The Higher Education Standards Framework should remain in delegated legislation rather than be incorporated into the TEQSA Act.

The process that is mandated by the TEQSA Act to make or amend the Threshold Standards is multi-layered. Section 58 of the TEQSA Act requires that the Minister must not make a standard unless:

a draft of the standard has been developed by the Panel
the Minister has consulted with each of the following about the draft:

o
the Council consisting of the Ministers for the Commonwealth and each State and Territory responsible for higher education (i.e. the Education Council)
o
if the Minister is not also the Research Minister (i.e. the Minister responsible for the Australian Research Council Act 2001) - the Research Minister, and
o
TEQSA

the Minister has had regard to the draft developed by the Panel, and any advice or recommendations received from the Panel or those other parties.

This process is time consuming but delivers a very important outcome - engagement with and ownership of the standards by higher education stakeholders, including the providers that are subject to regulation against the standards, and by all jurisdictions in the Federation, which have tacitly but not formally delegated administration of higher education policy and funding arrangements to the Commonwealth.

In addition to these process constraints, the requirements for appointing members of the Panel, set out in subsection 167(2) of the TEQSA Act ensure that, collectively, the Panel's membership has broad knowledge and expertise in both university and non-university higher education delivery and standards development and has regard to the perspectives of different states and territories, students and provider staff. Subsection 168(2) of the TEQSA Act also specifies that "the Panel must consult interested parties when performing its functions". This means that the expert advisory body with responsibility for developing any draft new or amended standards is itself broadly representative of sector perspectives and must directly engage with those impacted by its work before providing advice to government. This ensures the Panel can give the Government of the day unvarnished independent advice on the best approach. Indeed, the Panel's advice has been relied on repeatedly by the Government not just to guide proposed changes to the Threshold Standards but other matters critical to assuring the quality of Australian higher education.

The primary function for the Threshold Standards is to provide a basis for TEQSA as the independent national regulator to assure the quality of higher education delivery. These are not the funding rules, which are set out in HESA, but, rather, reflect the shared understanding and agreement of higher education providers and other relevant stakeholders as to what 'quality' means in higher education delivery.

The process and stakeholder input required to amend or create new standards is set out in the TEQSA Act. But 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.

Quality standards in any field of endeavour are inevitably dynamic and need constant monitoring, review and occasional updating to reflect new learnings, shared experience and evolving good practice. The Committee noted that the Threshold Standards have only been amended twice since their creation in 2011. The context and nature of these amendments needs to be acknowledged, however. As noted in Bills Digest No. 14, 2020-21, the initial (2011) Threshold Standards were created out of the National Protocols for Higher Education Approval Processes, agreed by the Commonwealth and state and territory higher education ministers in 2000 and revised in 2007. The changes made since their creation involved minor technical amendments to fix some anomalies in 2013 and a complete rewrite of the entire instrument in 2015, apart from the Provider Category Standards - consideration of which were deferred to a subsequent separate review.

The 2015 Threshold Standards instrument delivered a more streamlined and integrated standards framework that removed a significant amount of duplication and reflected current practice of higher education delivery. It followed an intensive review by the Panel over nearly three years, that involved wide consultation with the higher education sector and other stakeholders, including state and territory governments, including 230 written submissions over the entire period. This review set a high benchmark for future Panel activity. The instrument came into effect from January 2017 and involved significant adjustment by the higher education sector to understand the different approach, and by TEQSA to completely revise its guidance and support materials. The last three years has seen the new standards bedded down. This includes through providers gradually adopting them as a framework for their internal management and governance which, if pursued in this way, offers the promise of significant reductions in administrative burden associated with regulatory assessments.

Now the Provider Category Standards and criteria for awarding self-accrediting authority have also been comprehensively reviewed by an independent reviewer, with further scrutiny and consultation by the Panel - both of which engaged widely with stakeholders. Professor Coaldrake held a large number of both open and targeted stakeholder meetings and received 67 written submissions to his review. In developing its advice, the Panel held a stakeholder forum with around 250 attendees in November 2019, a webcast and various other stakeholder meetings, received over 40 written responses to a February 2020 consultation paper and consulted extensively with TEQSA. In a very real sense, the PCS review is the final part of the initial strategic review.

It is not the case that the Standards lack dynamism or change. Far from it. The combination of the initial Panel and subsequent PCS reviews will have seen the Threshold Standards comprehensively analysed and rewritten to reflect contemporary best practice. The capacity for that level of sector input to, ownership and acceptance of the content of the standards would be compromised were they to be set in stone by incorporation into primary legislation.

Should updated research requirements for Australian University category providers proposed by the PCS Review be included in the Threshold Standards or written into the TEQSA Act?

It is appropriate that the updated research requirements for the Australian University provider category recommended by the PCS Review remain part of the Threshold Standards and not be separately written into the TEQSA Act.

Recommendation 5 of the PCS Review report states:

"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."

Professor Coaldrake proposed that by 2030, universities should be expected to undertake research "at or above world standard" in at least three or 50 per cent of the broad fields of education it delivers, whichever is greater. Until that level of performance is required, there should be a lower benchmark of at least three or 30 per cent of the broad fields of education the university delivers, whichever is greater.

The Australian Government's response to the review, while recognising that research benchmarks are ideally set at a world-class standard, notes that such benchmarks "must also recognise work of national standing in Australia-specific fields such as Australian studies and Australian literature."

While the specific measures for research quality recommended by the PCS Review and Australian Government response are newly defined, the issue they address is not new and has been a core element of the Threshold Standards from their creation in 2011. Both the 2011 and 2015 Threshold Standards instruments specified that the undertaking of research is a fundamental requirement for university status. They outline that an Australian University category provider must, among other things undertake:

"research that leads to the creation of new knowledge and original creative endeavour at least in those (at least three) broad fields of study in which Masters Degrees (Research) and Doctoral Degrees (Research) are offered."

Similar research requirements apply in both the Australian University College and Australian University of Specialisation categories but with progressively lower numbers of fields of study specified.

Over several years, however, TEQSA has identified that the lack of an explicit indication as to the quality of research activity required for registration as a university makes the assessment of whether new applicants or existing providers meet these standards difficult. Currently these judgments are left to TEQSA with no formal guidance as to the approach it should take.

In effect, TEQSA has had to develop its own policy on this, which is outlined in some detail in its application guide for registration in a university category, including:

"whether the quality and quantity of research being undertaken meets the expectations of the national and international academic community for an Australian university. In assessing the quality of research, TEQSA will have regard to the assessment model used by the Australian Research Council for the most current Excellence in Research for Australia evaluation, including for the quality of research outputs."

In its submission to the PCS Review, TEQSA recommended that:

"Requirements for research included in any future university category should include indications of the quantity and quality of research required, and provide support for TEQSA to undertake benchmarking against comparable providers registered in university categories."

The new benchmarks seek to clarify this measurement by setting principles-based thresholds that can be judged using readily available metrics such as the Excellence in Research for Australia assessments conducted by the Australian Research Council. This approach is not dissimilar from the approach TEQSA has articulated in its application guide. If a provider is not currently included in such an assessment framework - e.g. a new applicant for university status - they would need to offer other evidence of a robust and quality research program, exactly as occurs now, drawing on measures such as published and peer-reviewed research papers, etc. Providers will have the added benefit, though, of a clearly articulated benchmark to work towards.

Rather than imposing a new requirement, the research benchmarks clarify the existing requirement. Professor Coaldrake is explicit about this in his final report of the PCS Review, noting:

"The research criteria have been revised to provide more guidance and scope for TEQSA regulation including setting requirements for quality and quantity of research."

The benchmarks proposed by Professor Coaldrake are relatively modest, especially in the first ten years of operation. On the basis of publicly available Excellence in Research for Australia assessments alone, it is not anticipated that any public university would have difficulty achieving the initial benchmark of research in at least three or 30 per cent of the broad fields of education the university delivers, whichever is greater. No university has indicated that it fears it will not meet the proposed benchmarks. In its advice to the Minister on implementing the PCS Review recommendations, the Panel suggested giving effect to Professor Coaldrake's "2030" timeframe for the higher threshold as "within ten years after entry to the 'Australian University' category", which would apply a full ten year transition period to existing providers moving to assessment under the revised Threshold Standards as well as to providers entering the category for the first time in the future.

It should also be noted these benchmarks are about quality rather than quantity or volume. There is nothing inherent in the benchmarks that would disadvantage a smaller institution. The "research of national standing" benchmark ensures that smaller research programs that focus on issues that respond to important community and national needs but may not be able to be compared with world standard will also be acknowledged, respected and valued.

As a threshold of quality to be achieved, these benchmarks belong most appropriately in the Threshold Standards along with the other defined threshold quality measures across the full range of institutional activity necessary to deliver higher education. It would also be inappropriate to specify this one threshold in the TEQSA Act, while leaving other threshold measures in a legislative instrument - especially considering the related measure in the current Threshold Standards is contained in the legislative instrument. The same arguments articulated above about the need for sector-engaged development and implementation apply here too. Moving this threshold into the TEQSA Act would reduce the sector's 'ownership' and capacity to influence should it be the subject of future reconsideration.

If the Threshold Standards and research requirements remain in a legislative instrument, should the TEQSA Act contain high level guidance on their content?

It is not necessary to incorporate specific guidance on the content of the Threshold Standards in the TEQSA Act. The process mandated by the TEQSA Act to amend the Threshold Standards means that they cannot change without significant scrutiny by higher education stakeholders, the expert advice of the Higher Education Standards Panel and TEQSA, input from state and territory governments and finally the opportunity for Parliamentary review. As ably demonstrated by the change process currently underway, this means that precedents 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.

The 2011 TEQSA Act effectively included high level guidance on the content of both the 'threshold' and 'other' standards by naming four different types of threshold standards and three types of additional standards. These were:

Threshold standards

the Provider Registration Standards;
the Provider Category Standards;
the Provider Course Accreditation Standards; and
the Qualification Standards.

Other standards

the Teaching and Learning Standards;
the Information Standards; and
the Research Standards.

Even this broad guidance as to the content of the standards proved unhelpful, however. A significant problem found with this approach was that the initial Threshold Standards, being transaction focused and based around different types of regulatory assessments, inevitably led to a great deal of duplication of content within the different types of threshold standards. Many quality issues relevant to provider registration, for example, are also relevant to course accreditation but were restated in those original standards.

Only the Threshold Standards were ever made. No effort was made to create Teaching and Learning Standards, Information Standards or Research Standards. In fact, the initial Threshold Standards included their own content relating to teaching and learning, information and research. So much so, that specialised standards in those areas were unnecessary and would only have increased the level of duplication across statutes.

Perceptions change over time and the 2012-14 review by the inaugural Higher Education Standards Panel proposed moving to a more integrated standards framework against seven activity domains that largely removed duplication. This new approach is reflected in the 2015 legislative instrument and represented a significant change in approach.

The 2017 Review of the Impact of the TEQSA Act on the Higher Education Sector, undertaken by Deloitte Access Economics, agreed that the different types of standards should be removed from the TEQSA Act to better facilitate adoption of the integrated standards framework recommended by the Panel. Three types of non-threshold standards - Teaching and Learning Standards, Information Standards and Research Standards - were removed in 2019 through the Tertiary Education Quality and Standards Agency Amendment Act 2019. The current Bill will remove the four types of Threshold Standards specified - Provider Registration Standards, Provider Category Standards, Provider Course Accreditation Standards and Qualification Standards, leaving just one overarching category of "Threshold Standards". Provision for a minister to make "other standards against which the quality of higher education can be assessed" if desired, at section 58(1)(h), is retained, however. This could include, for example, where the Government wished to describe aspirational standards that recognised quality delivery in a particular area that are above the minimum threshold required for registration.

The experience, so far, with the Higher Education Standards Framework suggests that - at least for these standards - even high level guidance on content can present a barrier to innovation. It would not be useful to include guidance specifying the content of either the Threshold Standards or specific elements within those standards - such as the research benchmarks - in primary legislation, given the evolving nature of stakeholder perspectives and objectives. For the Higher Education Standards Framework, the protections built into the process to amend or create new standards provides adequate protection to ensure the outcome is well considered and sector-appropriate.

FINANCIAL IMPACT STATEMENT

The student records management provisions in the Bill are expected to cost $2 million over four years from 2020-21. The other measures in the Bill have no financial implications.

REGULATION IMPACT STATEMENT

The Regulation Impact Statement for the Bill titled "What's in a Name? Review of the Higher Education Provider Category Standards" is at the end of this Explanatory Memorandum (Attachment A).

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

HIGHER EDUCATION LEGISLATION AMENDMENT (PROVIDER CATEGORY STANDARDS AND OTHER MEASURES) BILL 2020

The Higher Education Legislation Amendment (Provider Category Standards and Other Measures) Bill 2020 ( the Bill ) 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.

Overview of the Bill

The Bill proposes to amend the Tertiary Education Quality and Standards Agency Act 2011 ( TEQSA Act ) to:

give effect to the Commonwealth Government's decision to implement the recommendations arising from the Review of the Higher Education Provider Category Standards ( PCS Review );
give effect to an outstanding recommendation from the Review of the impact of the TEQSA Act on the higher education sector ( Impact Review ), to refer to the Threshold Standards as a single unified framework; and
improve regulation of Australia's higher education sector through a small number of other measures, including to ensure student records can be appropriately handled following a provider ceasing to operate and to protect the term 'university' as it appears in Australian internet domain names.

The Bill also proposes to amend the Higher Education Support Act 2003 ( HESA ) to:

replace references to 'Indigenous students' with 'Indigenous persons' to provide clarity around the scope of 'Indigenous Student Assistance Grants'.

The 2017?18 Budget included a measure to undertake a review of the Higher Education Provider Category Standards, which are part of a legislative instrument, the Higher Education Standards Framework (Threshold Standards) 2015 ( the Threshold Standards ). The PCS Review, undertaken by Emeritus Professor Peter Coaldrake AO in 2018-19, recommended amendments to the Provider Category Standards to ensure they support the Government's goals for a diverse and high-quality higher education sector that meets the needs of students, employers, higher education providers and the wider community, with category standards that are fit for purpose for the future.

The Higher Education Standards Panel ( the Panel ), which advises the Commonwealth Minister for Education on changes to the Higher Education Standards Framework and on higher education quality and regulatory matters, drafted amendments to the Threshold Standards to give effect to the PCS Review recommendations. To accommodate these proposed amendments to the Threshold Standards, complementary amendments are also proposed to be made to the TEQSA Act by this Bill to ensure that the Threshold Standards can be made as proposed.

The Bill provides capacity for TEQSA to make a determination, by legislative instrument, setting out factors it will take into consideration when assessing the quality and quantity of research under new university research benchmarks. It also clarifies references to the type of self-accrediting authority for 'Australian University' category providers under the new Threshold Standards.

In response to an outstanding recommendation from the Impact Review, references to the Threshold Standards will be reframed as a single unified framework, instead of four distinct types of Threshold standards as originally specified in the TEQSA Act.

Other measures to improve higher education regulation given effect by the Bill will:

include reference to the Australian Qualifications Framework qualification type 'undergraduate certificate' in the definition of 'higher education award';
allow TEQSA to extend the period of a provider's registration or course accreditation more than once, which will help TEQSA manage its regulatory workload better and provide low-risk providers with additional flexibility;
allow merits review of a decision by TEQSA not to change a provider's category;
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:

o
This measure is part of the Government's Job-ready Graduates package, and will help current and former higher education students obtain access to their academic records in the event that a registered higher education provider ceases to operate;
o
The measure will provide TEQSA with similar legislative powers to those conferred on the Australian Skills Quality Authority ( ASQA ) in sections 211 to 214 of the National Vocational Education and Training Regulator Act 2011, which require registered training organisations to provide ASQA with a copy of their student records within 30 days of ceasing operation.

protect use of the word 'university' in Australian internet domain names, by requiring consent of the Minister to use a domain name containing the word 'university' or its derivatives.

Analysis of human rights implications

The Bill engages the following human rights:

the right to education - Article 13 of the International Covenant on Economic, Social and Cultural Rights ( ICESCR );
the right to privacy - Article 17 of the International Covenant on Civil and Political Rights ( ICCPR ); and
the right to freedom of expression - Article 19 of the ICCPR.

Right to education

The Bill engages the right to education, which is set out in Article 13 of the ICESCR. The right to education recognises the important personal, societal, economic and intellectual benefits of education.

The measures contained in the Bill amend the Threshold Standards to simplify and streamline provider categories, and clearly articulate the requirements to be categorised as a particular type of higher education provider. This will help to ensure a diverse and high-quality higher education sector that meets the needs of students, employers, higher education providers and the wider community.

The Bill also makes a number of amendments that are technical in nature, and are designed to provide TEQSA with greater flexibility in conducting its regulatory functions, consistent with its risk-based and proportionate approach to regulation. These will, in turn, improve higher education providers' ability to deliver high-quality teaching, learning and research, optimising educational outcomes for students.

Provisions in the Bill allowing TEQSA to collect some student records will help current and former higher education students to obtain access to their academic records in the event that a registered higher education provider ceases to operate. In the past, students of providers that have ceased operation have had difficulty in obtaining their student records, as current arrangements for accessing these records are unclear. These amendments are intended to address this.

TEQSA currently has no legislative authority to take custody of such records. In the past, when former students of closed providers have sought TEQSA's assistance to gain access to their academic records it has had to rely solely on the goodwill of, and professional relationships forged with, the relevant providers, liquidators and the like, to facilitate access to records. This measure promotes the right to education by ensuring students can access their records and transition without impediment to new educational opportunities with other tertiary education providers and, more broadly, supports student access to and participation in higher education in Australia.

The Bill is compatible with the right to education because the amendments, separately and in combination, will clarify and streamline the regulatory framework associated with the provision of education to the benefit of higher education providers, students and potential students.

The amendments in Schedule 2 confirm the arrangements provided in Part 2-2A of HESA. For detailed discussion of the human rights implications of Part 2-2A, see the statement of compatibility with human rights in the explanatory memorandum to the Higher Education Support Legislation Amendment (2016 Measures No. 1) Bill 2016.

Right to privacy

The Bill engages Article 17(1) and 17(2) of ICCPR, which states that "no one shall be subject to arbitrary or unlawful interference with his privacy...nor to unlawful attacks on his honour and reputation" and that "everyone has the right to the protection of the law against such interference or attacks".

The right to privacy under Article 17 allows, impliedly, for the right to be limited provided that limitation or purported interference is not 'arbitrary' or 'unlawful'. In order for an interference with the right to privacy to be permissible, the interference must be prescribed or authorised by law, be for a reason consistent with the ICCPR and be reasonable, necessary and proportionate means for pursuit of a legitimate objective. The UN Human Rights Committee has interpreted the requirement of 'reasonableness' to imply that any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case.

The Bill engages the right to privacy because it authorises TEQSA to collect student records that may include personal information (within the meaning of the Privacy Act 1988) from a registered higher education provider in the event the provider ceases operations. As a result, this measure would necessarily involve the access, transfer and storage of student personal information, including sensitive information.

This measure is reasonable, necessary and proportionate means for pursuit of a legitimate objective because it is designed to help current and former higher education students to obtain access to their academic records in the event that a registered higher education provider ceases to operate. Currently a student may have to approach a number of different entities such as liquidators, parent companies, new owners, former managers or academics in order to access their academic records, which in some cases may be incomplete or unusable. Information about students can only be obtained, used and disclosed under these provisions in the furtherance of this legitimate policy objective.

The proposed amendments are also targeted, measured and subject to existing privacy protections. They specify clearly the circumstances in which the transfer of personal information from a provider to TEQSA is permitted or required. Notably, as a Commonwealth agency, TEQSA and its staff are subject to the terms of the Privacy Act and the Australian Privacy Principles ( APPs ) established under that Act.

Personal information held by TEQSA as a result of this measure will only be able to be accessed and disclosed by TEQSA in circumstances consistent with the purpose for which the information was collected (APP 6). TEQSA may disclose the information to the student to whom it relates (APP12), or under certain circumstances to a second higher education provider, to facilitate the movement of a student's academic records to another higher education provider where the student enrolls with that provider and has consented to the information being passed to the new provider.

TEQSA will undertake a privacy impact assessment ( PIA ) as part of its implementation of this measure to ensure that its handling of personal information under the new provisions in the Bill complies with the Privacy Act 1988.

To the extent that these measures limit the right to privacy, such limitations are consistent with the prohibition on arbitrary interference with privacy as they are directed at a legitimate objective and are reasonable and proportionate to that objective. Further, in streamlining the access route to private information that is held by providers which have ceased operation, the measure aims to improve the protection of the privacy of students affected by provider closures. Students of closed higher education providers will have a single point for access for their academic transcripts, assessment results, grades, and qualifications, without having to approach a range of individuals and entities to which the records may have passed in the absence of TEQSA's role (as is currently the case).

Right to freedom of expression

The Bill engages the right to freedom of opinion and expression as contained in Article 19 of the ICCPR. Amongst other things, Article 19 states that individuals must have the 'freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers'. Under Article 19(3), the right to freedom of expression may be subject to limitations that are necessary to protect the rights or reputations of others, national security, public order, or public health or morals. Limitations must be prescribed by law, pursue a legitimate objective, be rationally connected to the achievement of that objective and a proportionate means of doing so.

The Bill will require consent of the Minister before a person can use an Australian internet domain name containing the word 'university' (or expressions of similar meaning). This measure will, in effect, limit the capacity of individuals to choose domain names in some circumstances where those domain names include the word 'university' or expressions of similar meaning - for example 'uni' where it is intended to mean 'university'. This restriction mirrors similar requirements on the issuing of company and business names containing the word 'university' or derivatives of that term.

The policy intent underpinning this measure is to protect the reputation of Australian higher education institutions by preventing misleading, or deceptive use of the word 'university' in company names, business names and domain names in ways that could undermine the standing or reputation of individual institutions or the higher education sector as a whole. Protecting the use of the word 'university' is one element of Australia's higher education quality arrangements. Restricting the use of the word 'university' in company names, business names and domain names ensures that employers and students can be confident that any institution with the word 'university' in its title meets the relevant quality requirements. It also acts as a consumer protection measure to limit the opportunity for individuals to be misled about the nature and standing of a business or service that claims to have a connection to one or more universities.

In today's online world, internet domain names are effectively the trading names of many businesses and services, many of which are unincorporated and do not seek formal approval of a business or company name.

Under guidelines approved by the Minister, approval may be granted, for example, where the applicant:

is a university itself or has the approval of a university to use its name - for example in a campus-based club or business; or
is not a university or a university-related entity with approval to use the university's name, and:

o
does not propose to provide education services or information about education services;
o
does not purport to operate as a university;
o
the proposed name reflects the purpose for which the business is being formed.

A policy to limit the allocation of domain names containing the word 'university' was previously in operation through inclusion of the word 'university' on the reserved list of .auDA, the Government-endorsed industry self-regulatory body for the .au Country Code internet Top Level Domain space. The Bill will provide specific authority to reinstate the policy as a matter of law.

The requirement to seek approval for use of the word 'university' in a domain name is a reasonable, necessary and proportionate response to the need to maintain the integrity and reputation of Australia's higher education system. This is because an authorisation process is the least restrictive means to minimize the likelihood of domain names being misused. The authorisation process is limited and proportionate to the reasonable policy objective of curtailing the misuse of 'university' or analogous words in domain names.

The Bill is compatible with the right to freedom of expression as the limitation will be prescribed by law, pursue a legitimate objective that is rationally connected to the limitation and is a proportionate means of doing so.

Conclusion

Measures in the Bill, which bolster TEQSA's regulatory capabilities, enable amended Threshold Standards, allow TEQSA to specify matters in relation to new research quality benchmarks for providers in the 'Australian University' category, simplify and consolidate tertiary provider categories and assist students to access their records in the event a provider ceases to operate, support and enhance the right to education by improving both the governance arrangements and the functional experience of students entering, and navigating through, the tertiary education system. To the extent that measures contained in the Bill may limit human rights, these limitations are reasonable, necessary, and proportionate to the legitimate policy aims to which those measures are directed.

The Bill is compatible with human rights.

Notes on Clauses

Clause 1 - Short title

This clause provides for the Act to be the Higher Education Legislation Amendment (Provider Category Standards and Other Measures) Act 2020.

Clause 2 - Commencement

The table in subclause 2(1) sets out when the Act's provisions will commence. The table provides that:

sections 1 to 3 and anything in the Act not covered elsewhere in the table commence on the day the Act receives the Royal Assent;
Part 1 of Schedule 1 - containing the Provider Category Standards-related amendments - commences on a date to be fixed by Proclamation or, if the provisions do not commence within 12 months from the day the Act receives the Royal Assent, the provisions commence the day after the end of that 12 month period;
Items 20 to 28 and Item 30 of Schedule 1 commence on the day after the Act receives the Royal Assent;
Item 29 of Schedule 1 commences on the seventh day after the Act receives the Royal Assent;
Items 1 to 4 of Schedule 2 - commence the day after the Act receives the Royal Assent;
Item 5 of Schedule 2 commences immediately after the commencement of Items 1 to 4 of Schedule 2. However, the Item does not commence at all if Schedule 1 to the Higher Education Support Amendment (Job-ready Graduates and Supporting Regional and Remote Students) Act 2020 commences on or before the day on which Items 1 to 4 of Schedule 2 commence.

Subclause 2(2) provides that information in column 3 of the table at subclause 2(1) is not part of the Act and information may be inserted into column 3 or information in it may be edited in any published version of the Act.

Clause 3 - Schedules

This clause provides that any legislation that is specified in a schedule is amended or repealed as set out in the applicable items in the schedule and that any other item in a schedule has effect according to its terms.

LIST OF ABBREVIATIONS

COAG      Council of Australian Governments

HESA      Higher Education Support Act 2003

Impact Review      Review of the Impact of the TEQSA Act on the higher education sector undertaken by Deloitte Access Economics and published in 2018

Panel      Higher Education Standards Panel

PCS Review      Review of the higher education Provider Category Standards conducted by Emeritus Professor Peter Coaldrake AO and released in 2019.

TEQSA Act      Tertiary Education Quality and Standards Agency Act 2011

Schedule 1 - Higher Education standards and other amendments

Summary

The amendments in Part 1 of Schedule 1 give effect to:

recommendations arising from the PCS Review that require a legislative response; and
an outstanding recommendation from the Impact Review - this is done by removing references to different types of Threshold Standards.

The amendments in Part 2 of Schedule 1 enact a number of other measures intended to strengthen the way the TEQSA Act is administered and TEQSA's regulatory role to:

include reference to the new Australian Qualifications Framework qualification type 'undergraduate certificate' in the definition of 'higher education award';
allow TEQSA to extend the period of a provider's registration or course accreditation more than once;
introduce external merits review of a decision by TEQSA not to change the category in which a provider is registered;
provide TEQSA with the legislative authority to assume collect and disclose higher education student records from a registered higher education provider in the event the provider ceases operations; and
require the consent of the Minister to use an Australian Internet domain name that includes the word 'university' or words or expressions with the same or similar meaning that are specified in a legislative instrument. .

Detailed explanation

Part 1 - Higher education standards

Tertiary Education Quality and Standards Agency Act 2011

Item 1

Section 4 of the TEQSA Act is a simplified outline of the TEQSA Act.

Item 1 omits and substitutes that part of the outline which relates to the need for registered higher education providers to have their courses of study accredited before they can provide those courses in connection with regulated higher education awards.

The new wording is similar to the current wording, except that it makes some minor drafting changes and clarifies that some providers (including those registered in the 'Australian University' category) are authorised to self-accredit some or all of their courses of study.

Items 2 to 5

These items amend the definitions contained in section 5 of the TEQSA Act to remove references to different types of Threshold Standards, in line with the outstanding recommendation of the Impact Review, as follows:

Item 2 repeals and substitutes the definition of Higher Education Standards Framework - the new definition being the Threshold Standards and any other standards made under paragraph 58(1)(b). The capacity for the Minister to make standards in addition to the Threshold Standards, should the need ever arise, is retained.
Item 3 amends the definition of provider category so that it now means a provider category listed in the Threshold Standards (instead of a provider category listed in the Provider Category Standards). Once the new Threshold Standards come into effect, the provider categories will be described in a separate part of the Threshold Standards, rather than a separately constituted and separately named set of 'Provider Category Standards'.
Item 4 repeals the following definitions, which are no longer required because the relevant standards will no longer be used, and instead their content will be captured in the Threshold Standards:

Provider Category Standards
Provider Course Accreditation Standards
Provider Registration Standards

Item 5 repeals and substitutes the definition of Threshold Standards - the new definition being the Threshold Standards made under paragraph 58(1)(a), The new singular set of Threshold Standards will replace the current four separate types of Threshold Standards - see also amendments to subsection 58(1) made by ( Item 14 ).

Items 6 to 9

Items 6 to 9 make minor changes to the language used in various provisions of the TEQSA Act to reflect the introduction of the new 'Australian University' and 'Overseas University' provider categories.

Item 6 amends paragraphs 19(2)(b) and 20(2)(b) to omit "permits the use of the word 'university'" and, substitutes it with: "is either the 'Australian University' or 'Overseas University' provider category, to reflect the change in provider categories under the Threshold Standards.

Section 33 of the TEQSA Act concerns decisions that TEQSA proposes to make about the ability of a registered higher education provider, that is registered in a provider category that permits the use of the word 'university', to self-accredit its courses. Item 7 amends paragraph 33(1)(a) to omit reference to "permits the use of the word 'university':" and substitutes it with: "either the 'Australian University' or 'Overseas University' provider category", to reflect the change in provider categories under the Threshold Standards.

Section 36 of the TEQSA Act concerns decisions by TEQSA on whether to renew the registration of a registered higher education provider. Under subsections 36(5) and 36(6), if TEQSA proposes to reject an application for renewal of registration made by a provider that is registered in a provider category that permits the use of the word 'university', then TEQSA must give the provider and the relevant state or territory minister for higher education notice of the proposed decision and allow them the opportunity to provide representations about the matter. Item 8 amends paragraph 36(6)(b) to omit reference to permitting the use of the word 'university' and, instead, substitutes reference to either the 'Australian University' or 'Overseas University' provider category to reflect the change in provider categories under the Threshold Standards.

Section 39 of the TEQSA Act concerns consultations that TEQSA must undertake when considering whether to make a decision under subsection 38(1) to change the category in which a provider is registered. Under paragraph 39(1)(b), if TEQSA proposes to make a decision under subsection 38(1) to change a provider's category of registration and the provider is registered in a provider category that permits the use of the word 'university' - then TEQSA must give the provider and the relevant state or territory minister for higher education notice of the proposed decision and allow them the opportunity to provide representations about the matter.

Item 9 amends paragraph 39(1)(b) to omit reference to permitting the use of the word 'university' and, instead, substitutes reference to either the 'Australian University' or 'Overseas University' provider category.

Items 10 and 11

Section 45 of the TEQSA Act concerns who can accredit courses of study. Subsection 45(1) provides that registered higher education providers in the Australian university provider category that are established by or under, or recognised by, a Commonwealth, state or territory law, or are registered as companies under Part 2A.2 of the Corporations Act 2001, are authorised to self-accredit their courses that lead to a higher education award they offer or confer.

Item 10 replaces the words "Australian university provider category" in paragraph 45(1)(a) with the words "'Australian University' provider category", to better reflect the way the new provider category is expressed in the Threshold Standards.

Item 11 inserts a new subsection 45(2A) which provides that subsection 45(1) does not apply to registered higher education providers in the 'Australian University' category if they have a specialised focus in accordance with the Threshold Standards. This is necessary as, in future, the 'Australian University' category will encompass providers that offer courses across a broad curriculum in several fields of education, as well as providers that offer a more limited offering in just one or two fields of education. The latter will not have automatic authority to self-accredit courses outside of their recognised specialised fields of education. They would either need to seek accreditation by TEQSA under section 46 for any courses they wished to offer in other fields of education or, alternatively, seek authority to self-accredit courses in those additional fields of education under section 41.

Items 12, 13, 16 and 17

Items 12, 13, 16 and 17 make minor amendments to paragraph 49(1)(b), subsection 56(1), section 61 and paragraph 98(d) of the TEQSA Act to omit 'Provider Course Accreditation Standards' and substitute 'Threshold Standards', as the Provider Course Accreditation Standards are being replaced with the Threshold Standards.

Item 14

Subsection 58(1) of the TEQSA Act provides that the Minister may, by legislative instrument, make a number of standards that together comprise the Higher Education Standards Framework. These are: the Provider Registration Standards; the Provider Category Standards; the Provider Course Accreditation Standards; the Qualification Standards (all four of which Note 1 explains make up the Threshold Standards); as well as other standards against which the quality of higher education can be assessed.

Item 14 repeals and substitutes subsection 58(1). New subsection 58(1) provides that the Minister may, by legislative instrument, make standards that together comprise the Higher Education Standards Framework. These are the Threshold Standards and other standards against which the quality of higher education can be assessed. This change streamlines the standards providers are expected to satisfy, in line with an outstanding recommendation of the Impact Review. A Note draws attention to subsection 33(3) of the Acts Interpretation Act 1901 which clarifies that the power to make the standards includes the power to vary or revoke them.

Item 15

Item 15 inserts new section 59A. New subsection 59A(1) provides that, if TEQSA is considering the Threshold Standards, to the extent they relate to research, either in relation to:

a regulated entity that has applied to TEQSA for registration within the "Australian University" provider category;
a registered higher education provider that has applied under section 38 to change to the "Australian University" provider category; or
a registered higher education provider that is in the "Australian University" provider category (for example, in relation to deciding whether to renew the registration of a registered higher education provider as an "Australian University" under section 36 of the TEQSA Act, or in relation to compliance assessments undertaken under section 59 of the TEQSA Act);

then TEQSA must have regard to the quality of the research undertaken by the entity or provider.

This reflects the PCS Review's recommendation that new research quality benchmarks be included in the Threshold Standards for providers in the 'Australian University' category. While the current Provider Category Standards require universities to undertake "research that leads to the creation of new knowledge and original creative endeavour", they do not specify how this is to be measured or assessed.

New subsection 59A(2) provides that, in having regard to the research undertaken by the entity or provider under new subsection 59A(1), TEQSA must have regard to the matters determined in an instrument made under new subsection 59A(7) (if such an instrument is in force).

New subsection 59A(3) specifies that new subsection 59A(2) does not limit the matters to which TEQSA may have regard (in considering the quality of research undertaken by an entity or provider under subsection (1)).

New subsection 59A(4) provides that TEQSA may, in writing, determine matters relating to the quality of research for the purposes of new section 59A.

New subsection 59A(5) provides that a determination made under new subsection 59A(4) has no effect unless the Minister approves it in writing.

New subsection 59A(6) specifies that TEQSA must give the Minister such information as the Minister reasonably requires for the purposes of approving the determination.

New subsection 59A(7) provides that a determination under subsection 59A(4) made by TEQSA and approved by the Minister is a legislative instrument made by the Minister on the day on which the determination is approved.

Item 18

Section 108 provides for an offence and a civil penalty for a regulated entity that uses the word 'university' in representations about itself or its operations concerning courses of study and higher education awards - when the entity is not registered in a 'university' category.

Item 18 amends paragraphs 108(1)(b) and 108(2)(b) to omit the words "a provider category that permits the use of the word 'university'" and substitutes "the 'Australian University' or 'Overseas University' provider category", to better reflect the way the new provider category is expressed.

Neither the offence nor civil penalty will apply to providers in the new 'University College' category as long as they represent themselves as a University College, rather than a University. A requirement within the new Threshold Standards will mandate that, while a University College category provider is welcome to use the word 'university' in its institutional branding, it must only do so by using the full category name 'university college' and not just the word 'university' in isolation.

Item 19 is an application provision which provides as follows:

the amendments made to paragraphs 19(2)(b) and 20(2)(b) of the TEQSA Act (see Item 6 ) apply to applications made on or after the commencement of Item 19;
the amendments made to paragraphs 33(1)(a), 36(6)(b) and 39(1)(b) of the TEQSA Act (see Items 7, 8 and 9 ) apply to decisions made on or after the commencement of Item 19;
the amendment that inserts subsection 45(2A) of the TEQSA Act (see Item 11 ) applies in relation to working out whether a registered higher education provider is authorised to self-accredit a course of study on or after the commencement of Item 19;
the amendment made to paragraph 49(1)(b) of the TEQSA Act (see Item 12 ) applies to applications for accreditation of courses of study made on or after the commencement of Item 19, or that were pending immediately before that commencement;
the amendment made to subsection 56(1) of the TEQSA Act (see Item 13 ) applies to applications for renewal made on or after the commencement of Item 19, or that were pending immediately before that commencement;
the amendment made to insert subsection 59A(1) (see Item 15 ) of the TEQSA Act applies in relation to the consideration of the Threshold Standards on or after the commencement of Item 19, whether the research was undertaken before, on or after that commencement;
the amendment made to paragraph 98(d) of the TEQSA Act (see Item 17 ) applies in relation to a failure to ensure that an accredited course in relation to a provider meets the Threshold Standards that occurred on or after the commencement of Item 19;
Subdivision A of Division 1 of Part 7 of the TEQSA Act (Administrative sanctions), as in force immediately before the commencement of Item 19, continues to apply on or after that commencement in relation to a failure referred to in paragraph 98(d) (i.e. a failure to ensure that an accredited course in relation to a provider meets the Provider Course Accreditation Standards) that occurred before the commencement of Item 19; and
the amendments made to section 108 of the TEQSA Act (see Item 18 ) apply to uses of the word 'university' on or after the commencement of Item 19.

Part 2 - Other amendments

Tertiary Education Quality and Standards Agency Act 2011

Item 20

Item 20 expands the definition of higher education award in section 5 of the TEQSA Act by adding in the words 'undergraduate certificate' after 'bachelor degree'. This reflects COAG Education and Skills Councils' agreement to add 'Undergraduate Certificate' to the Australian Qualifications Framework as a new higher education qualification type from May 2020 to December 2021, unless this period is extended by the Councils.

Item 21

Item 21 inserts a definition of higher education student records into section 5 of the TEQSA Act, as it is used in new Subdivision C of Division 2 of Part 10 (see Item 28 ). This definition covers documents or objects in any form (including any electronic form):

held by an entity that is a registered higher education provider, because of the document's or object's connection with a person who is or was enrolled in an accredited course provided by the entity
held by an entity that is a former registered higher education provider at a time when it was a registered higher education provider, because of the document's or object's connection with a person who was enrolled in an accredited course provided by the entity.

Item 22

Subsection 37A(1) of the TEQSA Act currently provides that TEQSA may extend the period of a registered higher education provider's registration, so long as the period has not been previously extended by TEQSA. Item 22 removes the words 'so long as the period has not been previously extended by TEQSA'. This will enable TEQSA to extend the period of registration more than once. Having this ability may be necessary to manage regulatory activity during the COVID-19 pandemic. It will also offer TEQSA greater flexibility to manage provider registrations into the future, particularly for low risk high quality providers that may have had a previous period of extension - including a relatively short extension period that might have been granted in response to the pandemic.

Items 23 and 24

Under paragraph 38(1)(b) of the TEQSA Act, TEQSA may change the provider category in which a registered higher education provider is registered on application by the provider (under paragraph 38(1)(a), TEQSA may also change the provider category on its own initiative).

Item 23 inserts a new subsection 38(1A) into the TEQSA Act which makes it clear that, where a provider has made an application under paragraph 38(1)(b) application to change its category of registration, TEQSA may decide not to change that category. This addition will enable decisions not to change a provider category to be included in the list of decisions that may be reviewed by the Administrative Appeals Tribunal - see Item 27 .

Subsection 38(2) provides that, before it makes a decision under subsection 38(1), it must have regard to the Threshold Standards. Item 24 makes a consequential amendment to subsection 38(2) to provide that this requirement to have regard to the Threshold Standards also applies to a decision under the new subsection 38(1A).

Item 25

Section 40 of the TEQSA Act provides that TEQSA must, within 40 days of making a subsection 38(1) decision, give the registered higher education provider written notice of its decision and reasons for the decision. Item 25 amends section 40 to extend this requirement to decisions made under new subsection 38(1A) (see Item 23 ).

Item 26

Subsection 57A(1) of the TEQSA Act currently provides that TEQSA may extend the period of accreditation of a course of study, so long as the period has not been previously extended by TEQSA. Item 26 removes the words 'so long as the period has not been previously extended by TEQSA'. This will enable TEQSA to extend the period of accreditation more than once, just as Item 22 provides this capacity in relation to extensions of provider registration and for the same reasons.

Item 27

Section 183 of the TEQSA Act contains a table setting out those decisions of TEQSA that are reviewable decisions that may be reviewed by the Administrative Appeals Tribunal following a process of internal review by TEQSA. Item 27 adds a new reviewable decision category to that table - that is, decisions under section 38 not to change the category in which a registered higher education provider is registered (see Item 23 ).

Item 28

Division 2 of Part 10 of the TEQSA Act concerns information management and consists of the following subdivisions:

Subdivision A (restrictions on the disclosure or use of information)
Subdivision B (information sharing).

Item 28 adds a new Subdivision C (student records), consisting of the following new sections:

section 197AA (higher education student records to be provided to TEQSA)
section 197AB (TEQSA may request higher education student records)
section 197AC (provision of higher education student records to another registered higher education provider)
section 197AD (TEQSA's management of higher education student records)
section 197AE (compensation)

These provisions will enable TEQSA to take custody of the academic records of a higher education provider that closes, ensuring that past students of the provider will have guaranteed and simpler access to their records into the future. Such records are often needed by a student to facilitate their enrolment in a course with another provider, or to verify the units undertaken or qualifications awarded for an employer. The provisions in sections 197AA to 197AE are modelled on similar authority provided to the Australian Skills Quality Authority to assist vocational education and training students in sections 211 to 214 of the National Vocational Education and Training Regulator Act 2011 ( NVETR Act ).

While not explicitly stated in the provisions, students will have access to their own personal information held by TEQSA by virtue of their rights under the Privacy Act 1988 and the APPs under that act, to which TEQSA, as an APP entity, is subject. APP 12 (access to personal information) requires an APP entity that holds personal information about an individual to give the individual access to that information on request. APP 12 also sets out minimum access requirements, including the time period for responding to an access request, how access is to be given, and that a written notice, including the reasons for the refusal, must be given to the individual if access is refused.

Section 197AA (higher education student records to be provided to TEQSA)

Subsection 197AA(1) provides that if:

an entity is a registered higher education provider has effectively ceased to operate; or
an entity's registration as a registered higher education provider is cancelled.

then TEQSA may, by written notice given to a person who is, or was, an executive officer of the entity, require the person to provide to TEQSA with a copy of the higher education student records (see Item 21 ) relating to an entity as are specified in the notice, within the period specified in the notice.

Subsection 197AA(2) provides that the period specified in the notice must be at least 14 days after the notice is given.

Subsection 197AA(3) provides that a person commits an offence (subject to a penalty of 150 penalty units), where that person possesses or controls higher education student records specified in a notice issued to them under subsection 197AA(1), and fails to comply with that notice (the value of a penalty unit is currently $222).

Subsection 197AA(4) is a civil penalty (of up to 300 penalty units) provision, which is contravened where a person who possesses or controls higher education student records specified in a notice issued to them under subsection 197AA(1), fails to comply with that notice.

These penalties are consistent with 'A guide to framing Commonwealth offences, infringement notices and enforcement powers', published by the Attorney-General's Department, as they are consistent with existing similar offences. In particular, these penalties are consistent with subsections 211(3) and 211(4) of the National Vocational Education and Training Regulator Act 2011.

These penalties are necessary to ensure compliance with the notices provided by TEQSA, so that students are able to access their student records and continue their education or gain employment. The size of the penalties is reasonable and proportionate, and reflect the potential harm to students and the reputation of the Australian higher education system of non-compliance. The penalties are also consistent with comparable offences. For example, the penalties created by this section are the same as those applicable to an executive officer or high managerial agent of a vocational education and training provider for a comparable offence under section 211 of the NVETR Act.

Section 197AB (TEQSA may request higher education student records)

Section 197AB entitles TEQSA to issue a notice in writing to a person (where that person is not, and was not, an executive officer of the entity) it considers may hold higher education student records relating to an entity, requesting the person provide a copy of those records specified in the notice to TEQSA where:

an entity that is a registered higher education provider has effectively ceased to operate; or
an entity's registration as a registered higher education provider is cancelled

This section will enable TEQSA to request copies of student records that may be held by someone other than an executive officer or former executive officer of a provider that has ceased operating. This is necessary as, once a provider closes, custody of the former provider's assets, including historical student records and data may pass to a range of other individuals or entities, including liquidators or relatives.

Section 197AC (transfer of higher education student records to another registered higher education provider)

Section 197AC facilitates the transfer of higher education student records held by one registered higher education provider to be transferred to another registered higher education provider, where a student transfers providers.

Section 197AC provides that if a person (i.e. student) is enrolled in an accredited course provided by an entity that is a (first) registered higher education provider and then that person transfers their enrolment to a different (second) registered higher education provider, then:

the person may request the first registered higher education provider provide a copy of the higher education student records the first provider holds about the person to the second registered higher education provider; or
the second registered higher education provider may, in writing, request the first registered higher education provider provide a copy of the higher education student records the first provider holds about the person to the second registered higher education provider.

Section 197AD (TEQSA's management of higher education student records)

Section 197AD facilitates TEQSA providing a copy of relevant higher education student records to a registered higher education provider where a student requests this to occur if:

the person to whom the record relates has enrolled, or is seeking to enrol, in an accredited course with the provider and gives TEQSA a written request asking it to provide the record to the provider; or
with the consent of the person to whom the record relates, the provider gives TEQSA a written request asking it to provide a copy of the record to the provider because the person has enrolled, or is seeking to enrol, in one of the accredited courses it provides.

Section 197AE (compensation)

Subsection 197AE(1) provides that, if the operation of section 197AA would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person, within the meaning of section 51(xxxi) of the Constitution. This is included to remove any doubt about the validity of new section 197AA.

Subsection 197AE(2) specifies that, if the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

Item 29

Item 29 inserts a new section 204A into the TEQSA Act.

New subsection 204A(1) provides that a person must not use a domain name with either:

the word 'university'; or
a word or expression that has the same or a similar meaning to the word 'university' and that is determined in an instrument under new subsection 204A(3);

in the domain name, and where that domain name includes an Australian top-level domain, unless there is an approval in force under new subsection 204A(4) in relation to the person's use of that domain name.

This means that if a person uses a domain name without approval, the licensor can prevent that person from continuing to use that domain name. It also means that if a domain name is transferred to a new person, that person would need to seek approval before using the domain name.

New subsection 204A(2) specifies that subsection 204A(1) applies in relation to a person's use of a domain name on or after the commencement of section 204A if the licence for the use of that domain name was issued on or after the commencement and no licence for the use of that domain name had been issued before that commencement to the licensee of the licence referred to in paragraph (a). This means that holders of an existing domain name of a kind specified in subsection 204A(1) (such as universities who are renewing their existing domain name) will not be required to seek authority to continue using that domain name.

New subsection 204A(3) provides that the Minister may, by legislative instrument, determine words or expressions for the purposes of subparagraph (1)(a)(ii). This will allow the Minister to provide clarity to stakeholders as to the words or expressions that are to be considered similar to university. It is anticipated that common expressions that are used to refer to university, such as "uni", may be specified in the instrument. Examples could include "uni", where this is intended to mean "university", or foreign translations of the word "university". It would also allow the Minister to respond flexibly to new words or expressions that are similar to university that may be used improperly, as they emerge.

New subsection 204A(4) states that the Minister may, in writing, approve a person's use of a specified domain name. It further states that the Minister may give an approval on the Minister's own initiative or on application. This accounts for the variety of ways that Ministerial approval may be sought.

New subsection 204A(5) provides that the Minister must give a copy of an approval granted under new subsection 204A(4) to the person and the licensor that issues licenses for the use of a domain name to which paragraphs (1)(a) and (b) apply. The intention of this provision is that a copy of an approval will be given both to the person who seeks to use the domain name and to the entity to which that person has applied, or will be applying to, for the licence to use the relevant domain name.

New subsection 204A(6) specifies that an approval under new subsection 204A(4) comes into effect at the time it is given.

New subsection 204A(7) specifies that, if the Minister refuses to give the approval, the Minister must give written notice of the refusal and of the reasons for the refusal to the person and the licensor that issues licenses for the use of a domain name to which paragraphs (1)(a) and (b) apply. The intention of this provision is that a copy of a refusal to give approval, and statement of reasons for the refusal, will be given both to the person who seeks to use the domain name and to the entity to which that person, has applied, or will be applying, to for the licence to use the relevant domain name. This will ensure the licensor has the information it needs to prevent the use of the domain name if the Minister has not approved its use.

New subsection 204A(8) provides that, in deciding whether or not to give an approval under subsection 204A(4), the Minister must have regard to:

whether the licensee is a registered higher education provider; and
the matters determined in an instrument under subsection 204A(10).

This will allow the Minister to specify additional matters that will be taken into account when considering whether to grant approval. This could include, for example, whether the person already has approval in place for a company or business name registered in Australia or overseas, or has a trademark over words or expressions that are included in a proposed domain name.

New subsection 204A(9) states that subsection 204A(8) does not limit the matters to which the Minister may have regard.

New subsection 204A(10) specifies that the Minister must, by legislative instrument, determine matters for the purposes of paragraph (8)(b).

New subsection 204A(11) provides that the Minister may, in writing, request the licensor that issues licences for the use of a domain name to which paragraphs (1)(a) and (b) apply to give the Minister the following details in relation to the period specified in the request:

the name of each person to whom such a licence has been issued;
the domain name covered by the licence; and
contact details for the person to the extent known by the licensor.

This will allow the Minister to request only the information necessary to assess whether to grant an approval to a particular person's use of a domain name, or to seek further information from the applicant if necessary. This disclosure may include personal information (for example the contact details of the person who seeks to use the domain name), however, the intention is that any disclosure will be restricted to information that is reasonable and proportionate to the policy objective or preventing misuse of the word university or words or expressions with the same or similar meaning in domain names.

New subsection 204A(12) states that the licensor must comply with a request under new subsection 204A(11).

New subsection 204A(13) provides that the Minister may, in writing, delegate the Minister's functions and powers under this section (except new subsections 204A(3) and (10)) as specified in the subsection. This will allow delegates in the Department of Education, Skills and Employment to make approval decisions, for example.

New subsection 204A(14) clarifies that an approval under subsection 204A(4) is not a legislative instrument, as each approval will be an administrative, rather than legislative, decision.

Item 30

Item 30 is an application provision which provides as follows:

the amendment made to section 37A of the TEQSA Act (see Item 22 ) applies to an extension of a higher education provider's registration given on or after the commencement of Item 30, whether the registration occurred before, on or after that commencement;
the amendments made to sections 38, 40 and 183 of the TEQSA Act (see Items 23, 24, 25 and 27 ) apply to decisions about not changing provider registration category made on or after the commencement of Item 30, whether an application to change provider registration category was made before, on or after that commencement;
the amendment made to section 57A of the TEQSA Act (see Item 26 ) applies to an extension of a period of accreditation of a course of study given on or after the commencement of Item 30, whether the accreditation occurred before, on or after that commencement;
new section 197AA of the TEQSA Act (see Item 28 ) concerning providing copies of higher education student records to TEQSA applies in relation to:

o
a registered higher education provider that effectively ceases to operate on or after the commencement of Item 30
o
the cancellation of a registered higher education provider's registration on or after the commencement of Item 30;

new section 197AB of the TEQSA Act (see Item 28 ) concerning TEQSA requesting copies of higher education student records applies in relation to:

o
a registered higher education provider that effectively ceases to operate on or after the commencement of Item 30
o
the cancellation of a registered higher education provider's registration before, on or after the commencement of Item 30;

new paragraph 197AC(b) of the TEQSA Act (see Item 28 ) concerning the provision of copies of higher education student records to another registered higher education provider, applies where the person to whom the records relate transfers to the new (second) provider on or after the commencement of Item 30, irrespective of whether the person's enrolment with the original (first) provider occurred before, on or after that commencement; and

Schedule 2 - Indigenous student assistance grants

Summary

Schedule 2 to the Bill amends certain sections in Part 2-2A (Indigenous student assistance grants) and other parts of HESA to replace references to 'Indigenous students' with 'Indigenous persons', and to clarify the purpose for which grants under Part 2-2A may be made to higher education providers. These amendments confirm the existing arrangements provided for by Part 2-2A of HESA that providers can use Indigenous student assistance grants to assist prospective Indigenous students as well as existing Indigenous students.

Detailed explanation

Higher Education Support Act 2003

Items 1 and 2 - Paragraph 3-5(1)(aa), Sections 8-1 and 38-1

Items 1 and 2 amend paragraph 3-5(1)(aa) and sections 8-1 and 38-1 of HESA to replace references to 'Indigenous students' with references to 'Indigenous persons.'

These are consequential amendments due to items 3 and 4 .

Item 3 - Paragraph 38-10(1)(a)

Item 3 amends paragraph 38-10(1)(a) of HESA to replace the reference to 'Indigenous students' with the words 'Indigenous persons (who may or may not be students)'. This amendment confirms that Table A and Table B providers are eligible for Indigenous student assistance grants for the purpose of assisting prospective Indigenous students as well as existing Indigenous students undertaking higher education.

Item 4 - Paragraph 38-10(1)(b)

Item 4 replaces paragraph 38-10(1)(b) of HESA to confirm that Table A and Table B providers are eligible for Indigenous student assistance grants for the purposes of increasing the number of:

Indigenous persons enrolling in courses leading to higher education awards; and
students who are Indigenous persons progressing in and completing courses leading to higher education awards.

Examples of activities that are consistent with this purpose can be found in the explanatory memorandum to the Higher Education Support Legislation Amendment (2016 Measures No. 1) Bill 2016.

Item 5 - Subclause 1(1) of Schedule 1

Item 5 inserts a new definition for Indigenous person into Schedule 1 of HESA, being the same definition as in the Indigenous Education (Targeted Assistance) Act 2000. Under that Act, 'Indigenous person' means:

(a)
a member of the Aboriginal race of Australia; or
(b)
a descendant of the Indigenous inhabitants of the Torres Strait Islands.

ATTACHMENT A

Regulation Impact Statement

What's in a Name? Review of the Higher Education Provider Category Standards
Regulation impact statement


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