Bills Digest No. 64 2002-03
Higher Education Legislation Amendment Bill (No. 3)
2002
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Higher Education Legislation
Amendment Bill (No. 3) 2002
Date Introduced:
16 October 2002
House: House of Representatives
Portfolio: Education, Science and
Training
Commencement:
Royal
Assent
Purpose
To amend the
Higher Education Funding Act 1988 so that universities and
other higher education providers may not deliver higher education
in the external territories without receiving accreditation in
accordance with the National Protocols for Higher Education
Approval Processes.
While the stated purpose of this Bill is to
extend the National Protocols for Higher Education Approval
Processes to the external territories, the impetus for the
Bill has come from events surrounding the establishment of
Greenwich University on Norfolk Island.
Greenwich University is a distance education
provider, established in Australia in 1998 under Norfolk Island
legislation. It first took the name Greenwich University in 1989
when its headquarters were in Hawaii. The University was set up on
Norfolk Island, firstly by regulation in June 1998(2)
and subsequently by statute(3). In February 2000,
according to its self-assessment report, Greenwich had 411 enrolled
students of whom 61% were in doctoral programs, 31% in masters
programs, and 8% in bachelor programs. Greenwich at that time had
an active faculty complement of 110, most of whom occupied
positions with traditional universities, large corporations or the
professions. In 1999 courses were offered in arts and humanities,
business and political studies, science and technology and social
science and health.(4)
Norfolk Island is administered in accordance
with the provisions of the Norfolk Island Act 1979 (Cth),
by which the Australian Parliament confers a measure of internal
self-government as a territory under the authority of the
Commonwealth. Norfolk Island has achieved a degree of internal
self-government so has some similarity with the Northern Territory
and the ACT. However, unlike these Territories, it is not a member
of the Ministerial Council on Education, Employment, Training and
Youth Affairs (MCEETYA)(5). Furthermore, Commonwealth
legislation does not automatically extend to Norfolk Island, unless
expressed to do so. Examples of Commonwealth legislation which do
not apply to Norfolk Island include Commonwealth Corporations Act,
tax law and the Education Services for Overseas Students
Legislation.
The Territory is administered by the
Administrator, appointed by the Governor-General. In forming
certain opinions required under the Act, the Administrator must
rely on his or her own judgement. In all other respects, the
Administrator acts on advice. That advice comes from a variety of
sources depending on the category of matter involved. In some
instances, the Administrator is the senior representative of the
Commonwealth on the Island, acting on the advice of the Minister
for Territories. In the case of the Greenwich University Act
1998, that Act was passed by the Assembly and then in
accordance with the Norfolk Island Act was assented to by the
Administrator acting on the advice of the Minister for Territories,
who at that time was Senator the Honourable Ian MacDonald.
In January 1999 Greenwich University, through
the Acting Chief Minister of Norfolk Island, wrote to the Chair of
MCEETYA requesting that Greenwich University be listed on the
register of the Australian Qualifications Framework (AQF). The AQF
maintains a register of bodies with authority to issue
qualifications and a register of authorities empowered by State and
Territory Governments to accredit post-compulsory education and
training courses. Listing occurs once the relevant State or
Territory accreditation authority has accredited the new
institution and the necessary policy and legislative processes have
been finalised. Register on the AQF essentially means that the
respective governments testify to the academic claims of the
institutions, but it does not go to financial viability.
The Commonwealth Department of Education,
Training and Youth Affairs (DETYA) responded to the Norfolk Island
request in June 1999, by establishing a Review Committee chaired by
Michael Gallagher to provide advice on whether Greenwich University
is suitable for inclusion on the AQF'. According to the chair of
this Committee, throughout the entire process of the review,
Greenwich University was given an opportunity to comment on the
terms of reference, on the membership of the Committee and on the
whole review process. It was given drafts of all the reports and
had an opportunity to comment and did so. Further, the final report
was provided to both Greenwich University and to the Norfolk Island
Government.(6)
The Gallagher Review was completed in December
2000. Amongst other things it found:
-
- Greenwich University had not been able to demonstrate that
quality assurance processes that would be expected of Australian
universities are in place.
-
- The qualifications of many of the faculties that were reviewed
were considered either inadequate or inappropriate.
-
- The lack of publications in peer refereed journals in all
disciplines was further evidence of a standard of research that
would be unacceptable for staff in Australian universities who were
supervising doctoral students.
-
- The quality of student work from the three faculties that were
assessed indicated that the standards sought are not comparable
with requirements set by other Australian universities.
-
- On the criterion of scholarship and research, Greenwich
University had not been able to demonstrate that its standing is
demonstrably equivalent to that of other Australian
universities.
The Review Committee concluded that Greenwich
University failed to meet the review criteria and therefore
recommended that:
Greenwich University not be listed on the
registers of the Australian Qualifications Framework because the
standard of its course, quality assurance mechanisms and its
academic leadership fail to meet the standards expected of
Australian universities.(7)
However the Committee, qualified this
recommendation adding:
while Greenwich University does not currently
satisfy the criteria for listing on the AQF registers, it is open
to the University to re-apply once it has addressed the
deficiencies identified in this report.(8)
Following completion of the review, the then
Minister for Education, the Honourable Dr Kemp, made a statement to
the Parliament reporting the findings of the Committee and gave
notice to prospective students and employers to beware, that
neither the Commonwealth or the States would vouch for the
credentials of Greenwich University.(9)
Six months later the issue was still unresolved.
The Chair of the Review Committee, Michael Gallagher, gave evidence
in Estimates Hearings stating that although Greenwich University
had submitted further documents these had not addressed the
deficiencies identified in the review.(10) Of greater
concern was evidence that Greenwich was ignoring the
recommendations of the Review Committee and was continuing to
operate and market its courses overseas describing itself as a
fully accredited Australian institution.(11)
The saga of Greenwich University has been
relentlessly pursued by the ALP in Parliament particularly through
Senate Estimates Committee hearings. The Greenwich University Act
received assent in December 1998 and on 11 February 1999 the ALP,
mainly under the initiative of Senator Kim Carr, began a long
series of questioning on this matter. Questions went to issues such
as: the establishment and accreditation of the university; the
advice of the Territories Minister to the Norfolk Island
Administrator; the marketing of Greenwich as an accredited
Australian university; the Government's apparent tardiness in
responding to the Review Committee's recommendations; and at a more
personal level, the integrity and professional calibre of senior
staff of Greenwich University. According to Senator Carr, the
findings of Review Committee fully vindicated the Opposition s
concerns about the university.
Schedule 1 Amendment of the
Higher Education Funding Act 1988
Schedule 1 of the Bill makes
amendments to the Higher Education Funding Act 1988 (HEF
Act).
Item 1 inserts proposed
section 2B, an applications section, into the HEF Act. It
clarifies that proposed Chapter 5C extends to every external
territory . It is of note that section 18 of the Norfolk Island
Act 1979 states that an Act or a provision of an Act does not
apply to the Territory unless expressed to do so. It would seem
that the term 'every external territory' is sufficient to be
considered a reference to Norfolk Island.(12)
Item 2 inserts proposed
Chapter 5C into the HEF Act. It has the effect of
extending the National Protocols for Higher Education Approval
Processes to all of Australia's external Territories.
According to the Explanatory Memorandum this is on the same basis
as has been agreed and applied by the States and mainland
Territories.
Proposed subsection 106ZL(1)
contains definitions of 'Australian Qualifications Framework',
'Australian Qualifications Framework Register', 'higher education
award', 'listed self-accrediting entity' and 'National Protocols'
for the purposes of new Chapter 5.
Proposed subsections 106ZL(2) and
(3) clarify that the provisions in the Bill have
application to universities operating in an online or virtual
environment.
Proposed sections 106ZM, 106ZN and
106ZO create offences relating to non-accredited
universities or higher education providers operating in external
Territories.
Under proposed subsection
106ZM(1) it is an offence for a person to operate or
purport to operate in an external territory as a university or as a
provider of courses leading to higher education awards unless the
person is:
-
- a listed self-accrediting entity(13) or
-
- approved by the Minister as a self-accrediting entity and any
course offered by the person is accredited by the
Minister.(14)
Proposed subsection 106ZM(2)
specifies that this offence attracts strict
liability(15) in respect of the physical elements of
circumstance that the power of approval and accreditation is under
proposed section 106ZQ. In very simple terms this means the
prosecution would not need to prove that the defendant knew the
letter of the law in regard to Ministerial accreditation and
approval. However a defence of mistake of fact would be open to the
defendant under section 9.2 of the Criminal
Code.(16)
The maximum penalty for this offence is 40 penalty units (ie
$4410) for a natural person or five times that amount for a body
corporate. By way of comparison similar offences in New South Wales
legislation bring a penalty of 200 penalty
units.(17)
Proposed section 106ZN deals
with the offence of offering higher education awards or courses in
external Territories without accreditation. It is written in
similar terms to proposed section 106ZM.
Under proposed subsection
106ZO(1) it is an offence for a person to use the word
university , university college or any like words to identify the
person or their operation in an external territory unless:
-
- the person is a listed self-accrediting entity, or
-
- the person is a self-accrediting entity as approved by the
Minister and the Minister has approved the use of that word or
those words for those purposes.
Proposed subsection 106ZO(2)
specifies that this offence attracts strict
liability(18) in respect of the physical elements of
circumstance that the power of approval is under proposed section
106ZQ. This means the prosecution would not need to prove that the
defendant knew the letter of the law in regard to Ministerial
approval. However a defence of mistake of fact would be open to the
defendant under section 9.2 of the Criminal
Code.(19)
The maximum penalty for this offence is 40
penalty units (ie $4,410) for a natural person or five times that
amount for a body corporate. Again, by way of comparison, a similar
offence in the Higher Education Act 2001 (NSW) brings a
penalty of 200 penalty units(20).
Proposed section 106ZP provides
that, notwithstanding any law in an external Territory, the
registration or authorisation of the use of any company or business
name that uses the word "university", "university college" or any
like words is of no effect unless the Minister has given written
approval for the use of that name.
As the Minister's Second Reading Speech
indicates, the immediate effect of this measure will be to require
International University of America Pty Ltd on Norfolk Island and
any other bodies registered in the external territories with the
name university to cease using the word university in their company
or business name.
Proposed section 106ZQ sets out
the accreditation and approval procedures for the provision of
higher education in external Territories. As the Explanatory
Memorandum indicates, these accreditation procedures were agreed
upon by MCEETYA in 2000 and have already been set in place in the
States and internal Territories.
A person, other than a natural
person(21), not already listed as a self-accrediting
entity, that wishes to operate in an external territory as a
university, must apply in writing to the Minister either for
approval as a self-accrediting entity or for accreditation of each
course it proposes to offer (proposed subsection
106ZQ(1)). Regulations may prescribe fees to be paid in
respect of such applications and may also set out the manner and
times of payment of fees (proposed subsections 106ZQ(2) and
(3)).
The Minister may determine the entity to be a
self-accrediting entity if satisfied, following an assessment made
having regard to the National Protocols(22), that it is
appropriate that the body be empowered to issue its own
qualifications (proposed subsection 106ZQ(4)). The
period and conditions of approval are to be set by the Minister
(proposed subsection 106ZQ(6)).
Proposed subsections 106ZQ(5) and
(7) set out a similar arrangement for applying for
accreditation of a particular course leading to a higher
education award.
Under proposed subsection 106ZQ(8)
the Minister may amend or revoke approval of a self
accrediting entity if the Minister is satisfied:
-
- the entity has breached a condition of approval, or
-
- following a reassessment in accordance with the National
Protocols, the circumstances are so different that if the body were
to apply for approval the Minister would refuse the
application.
The Minister has similar powers in respect of
amending or revoking approval of courses in external Territories
(proposed subsection 106ZQ(9)).
Decisions made by the Minister regarding
accreditation and approval are reviewable in the Administrative
Appeals Tribunal (proposed section 106ZR).
It is of interest that the Bill and its
Explanatory Memorandum do not refer to either Norfolk Island or
Greenwich University, whereas the Minister s Second Reading Speech
is quite candid in indicating the Bill is targeting Greenwich
University. The Minister states that the effect of the Bill is that
Greenwich will no longer be able to trade as a university or offer
higher education awards, until and if it makes an application
demonstrating that it meets the requirements set out in the
National Protocols.
The Bill has received bipartisan support and
both the Government and Opposition are on the public record as
stating that the continued operation of Greenwich University on
Norfolk Island represents a threat to Australia s international
reputation in the field of education. The difference on party lines
is based in the Opposition s criticism of the Government in first
allowing Greenwich University to operate on Norfolk Island and then
in waiting almost two years before acting on the recommendations of
the Gallagher Review Committee.
The Government has responded to this criticism
by arguing that the alleged procrastination was to allow Greenwich
University time to make the relevant changes in order to re-apply
for accreditation. On the other hand the frank opinion of the Chair
of the Review Committee in Estimates Committee suggests that the
Department expects that it would take some time for Greenwich
University to rectify the deficiencies identified in the
review.
It [Greenwich University] clearly has a long way
to go before it reaches anywhere near university standards.
Frankly, from what we saw in the review process, much of what it is
accepting at doctoral standard would not pass muster at high
school.(23)
The Government has indicated that initial
correspondence with the Norfolk Island Administration suggested
that the Assembly might rescind the Greenwich University Act given
the outcome of the Gallagher Review(24). However should
that not happen, the Bill will have the effect of overriding the
Greenwich University Act(25).
The question of compensation for either the
Norfolk Island Government or for Greenwich University has been
raised both in the media(26) and the Parliament.
On 23 October Dr Nelson stated that:
'The Commonwealth has sought legal advice in
this matter and there is no basis upon which, from the government's
point of view, Greenwich University, or the Norfolk Island
Government in that regard, would have any claim on the
Commonwealth'(27)
The Commonwealth does have the power to override
Territory legislation under section 122 of the
Constitution. The Commonwealth could also argue that
Greenwich has had almost two years to address the deficiencies
identified in the Review and further, the effect of the Bill does
not prevent Greenwich University from applying for registration as
a self-accrediting entity at a later date.
-
- Much of the material in this section is extracted from the
Gallagher Review Committee s Report on the Application by the
Norfolk Island Government for the Listing of Greenwich University
on the Australian Qualifications Framework Register, December
2000.
- The Education (Greenwich University) Regulations (Norfolk
Island) were made on 30 June 1998.
- The Greenwich University Act 1998 (Norfolk Island) was
passed by the Norfolk Island Legislature and then in accordance
with the Norfolk Island Act 1979, was endorsed by the then
Territories Minister, Senator the Hon. Ian MacDonald, and granted
assent by the Norfolk Island Administrator on 9 December 1998.
- Gallagher Review Committee s Report on the Application by
the Norfolk Island Government for the Listing of Greenwich
University on the Australian Qualifications Framework
Register, December 2000, p. 1.
- MCEETYA is a body which defines and coordinates policy within
the relevant portfolio areas. Its membership comprises the relevant
ministers at Federal, State and Territory level and has provision
for observers such as Norfolk Island at its meetings.
- Senate, Estimates Committee, Education, Training and Youth
Affairs Portfolio: Department of Education, Training and Youth
Affairs Hansard, 22 February 2001, p. 223.
- Gallagher Review Committee s Report on the Application by
the Norfolk Island Government for the Listing of Greenwich
University on the Australian Qualifications Framework
Register, December 2000, p. 33.
- ibid.
- The Honourable R Kemp, MP, Hansard, Ministerial
Statements: Education: Greenwich University , 7 December 2000, p.
23740.
- Senate, Estimates Committee, Education, Training and Youth
Affairs Portfolio: Department of Education, Training and Youth
Affairs, Hansard, 7 June 2001, p.421.
- Senate, Estimates Committee, Education, Training and Youth
Affairs Portfolio: Department of Education, Training and Youth
Affairs Hansard, 21 June 2002, p. 727.
- Paragraph 17(pd) of the Acts Interpretation Act 1901
defines 'External Territory' to mean a Territory, not being an
internal Territory, for the government of which as a Territory
provision is made by any Act.
- A 'listed self-accrediting entity' is an entity whose name is
included in the Australian Qualifications Framework Register as a
university or higher education institution empowered to issue its
own qualification (proposed subsection 106ZL(1)).
- Ministerial approval and accreditation procedures are set out
in proposed section 106ZQ.
- A strict liability offence is one where the prosecution does
not have to prove fault, only that the defendant carried out the
requisite physical elements of the offence. For a discussion of the
physical and fault elements of offences the reader is referred to
the Background section of Bills Digest, No.92 2000-01 for the
Environment and Heritage Protection Legislation Amendment
(Application of Criminal Code) Bill 2000.
- This defence is available if a person is under a mistaken but
reasonable belief about a fact and, had that fact existed, the
conduct would not constitute an offence. Under the Criminal Code,
any legislative provision that attracts strict liability must
expressly state that it is an offence of strict liability (see
section 6.1 of the Code).
- See Division 4 Offences of the Higher Education Act
2001 (NSW).
- See above at no. 15.
- See above at no. 17.
- Section 13.
- Proposed subsection 106ZQ(10) provides that
for the purposes of section 106ZQ, the term person does not include
a natural person .
- The National Protocols are defined in Chapter 4A of the HEF Act
to mean the National Protocols for Higher Education Approval
Processes (first endorsed by the Ministerial Council on Education,
Employment, Training and Youth Affairs on 31 March 2000), as in
force from time to time.
- Senate, Estimates Committee, Education, Training and Youth
Affairs Portfolio: Department of Education, Training and Youth
Affairs Hansard, 7 June 2001, p. 421.
- ibid.
- Honourable B Nelson, MP, Hansard, Second Reading
Speech, 16 October 2002, p. 7678.
- 'Greenwich weighs up legal route', Australian, 30
October 2002.
- Honourable B Nelson, MP, Hansard, Second Reading
Debate for the Bill, 23 October 2002, p. 8446.
Mary Anne Neilsen
13 November 2002
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