BILLS DIGEST NO. 14, 2020–21              1 October 2020

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

Dr Hazel Ferguson
Social Policy Section 

Date introduced: 2 September 2020

House:  House of Representatives

Portfolio: Education, Skills and Employment

Commencement: various dates as set out in the body of this Bills Digest.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at October 2020.

Purpose of the Bill

The main purpose of the Higher Education Legislation Amendment (Provider Category Standards and Other Measures) Bill 2020 (the Bill) is to amend the Tertiary Education Quality and Standards Agency Act 2011 (TEQSA Act) to give effect to the Government’s response[1] to the recommendations of the Review of the Higher Education Provider Category Standards (PCS Review) requiring legislation.[2]

The Bill also proposes to:

•       amend the TEQSA Act to provide for the Tertiary Education Quality and Standards Agency (TEQSA) to:

–      include undergraduate certificates in its regulatory scope

–      extend a provider or course registration period, even if it has done so previously

–      not change a provider’s registration category when requested by the provider

–      assume control of student records where a registered higher education provider ceases operations

–      prohibit use of the word ‘university’ in top-level domain names, unless approval is provided by the Minister and

•       amend the Higher Education Support Act 2003 (HESA) to ensure that Indigenous student assistance grants cover support for prospective students.

Background

The Tertiary Education Quality and Standards Agency

Establishment and functions

TEQSA was created as part of the Government’s response to the 2008 Review of Australian Higher Education (the Bradley Review), which saw the need for a national quality assurance and accreditation body in the context of an expanding higher education system.[3]

After extensive consultation, TEQSA was established as the independent higher education quality assurance and regulatory authority for Australian higher education by Part 8 of the TEQSA Act, and began operations in January 2012.[4]

Amongst other things, TEQSA is empowered to conduct compliance and quality assessments to ensure the provisions of the TEQSA Act are being complied with, advise the Minister about matters relating to the quality or regulation of higher education, and undertake various other research, information sharing, and advisory functions in relation to higher education quality and academic integrity.[5]

In undertaking its functions, TEQSA must comply with principles set out in Part 2 of the TEQSA Act, which require it to exercise its power in relation to regulated entities:

•       with regard to the principle of regulatory necessity, so as not to burden the entity any more than is reasonably necessary[6]

•       with regard to the principle of reflecting risk, so as to take into consideration the entity’s history, and risk of non-compliance with requirements under the TEQSA Act[7] and

•       with regard to the principle of proportionate regulation, so as to only exercise its power in proportion to any non-compliance, or future risk of non-compliance.[8]

The Higher Education Standards Framework

TEQSA’s registration of higher education providers is based on requirements set out in the Higher Education Standards Framework (Threshold Standards) 2015 (the Threshold Standards 2015).[9] The Threshold Standards 2015 are in two parts. Part A covers standards for higher education, in the following areas:

•       student participation and attainment

•       learning environment

•       teaching

•       research and research training

•       institutional quality assurance

•       governance and accountability and

•       representation, information and information management.

Part B covers the criteria for a provider seeking authority to self-accredit courses of study, and provider categories (that is, the type of higher education provider an entity may be registered as, such as an Australian University—provider categories are discussed in detail below).[10]

Under paragraph 98(a) of the TEQSA Act, TEQSA may impose sanctions on a provider that has failed to meet the Threshold Standards. Those sanctions may include shortening the provider’s period of registration or cancelling the provider’s registration.[11]

The Threshold Standards make up the first four Standards of the Higher Education Standards Framework (HES Framework):

(a)              the Provider Registration Standards

(b)              the Provider Category Standards

(c)              the Provider Course Accreditation Standards

(d)              the Qualification Standards

(h)              other standards against which the quality of higher education can be assessed.[12]

Before making a Standard, the Minister is required to engage in a consultation process consisting of:

•       the Standard being developed by the Higher Education Standards Panel (HESP), which is responsible for consulting with the higher education sector and advising the Minister about the Threshold Standards, and other matters relating to Standards[13] and

•       consultation about the draft with:

–      TEQSA

–      the Council consisting of the Ministers for the Commonwealth and each state and territory responsible for higher education (currently the Education Council) and

–      if the Minister is not also responsible for the Australian Research Council Act 2001, then the Minister responsible for that Act.[14]

The Minister is required to have regard to the draft Standard developed by the HESP, and any advice received from the HESP, Ministerial Council, or TEQSA, before making the Standard.[15]

The Provider Category Standards

The Provider Category Standards (PCS), which the Bill is primarily concerned with, are currently listed at paragraph 58(1)(b) of the TEQSA Act as part of the HES Framework, and appear in Part B of the Threshold Standards 2015. The PCS describe the categories of higher education provider that may be registered, and the conditions for registration in that category, thereby functioning as both a regulatory tool for TEQSA, and a protection on the use of the title ‘university’ in Australia. The PCS address a need for nationally agreed criteria and approval processes for all higher education institutions, including in relation to self-accreditation and the establishment of Australian universities.[16] With some revisions, the PCS are based on 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.[17]

Currently, under Part B of the Threshold Standards 2015, all providers that meet the HES Framework to be registered with TEQSA become ‘Higher Education Providers’. Part B also contains standards for five university categories, which operate in addition to the category of Higher Education Provider. These categories, and the number of registered providers in each category, are summarised in Table 1 below.

Table 1: Registered higher education providers by category

Provider category

Registration criteria summary

Self-accrediting Authority

Non-self-accrediting Authority

Total

Higher Education Provider

Meets the Threshold Standards and offers at least one accredited higher education qualification. Research requirements apply only if the provider offers higher degrees by research (that is, Masters Degrees (Research) and Doctoral Degrees (Research)).

11

125

136

Australian University

Meets the Threshold Standards, and is self-accrediting, conducts research, delivers undergraduate and postgraduate courses of study across a broad range of fields, and higher degrees in at least three of the broad fields of study it offers.

40

0

40

Australian University College

Meets the Threshold Standards, and has realistic plans to meet the ‘Australian University’ or ‘Australian University of Specialisation’ criteria within five years. Conducts research, and delivers undergraduate and postgraduate courses of study across a range of fields, including higher degrees by research in at least one of the broad fields of study it offers.

1

0

1

Australian University of Specialisation

Meets the Threshold Standards, and fulfils some of the requirements of the ‘Australian University’ category, but only offers qualifications and conducts research within one or two broad fields of study.

1

0

1

Overseas University

Recognised as a university by its home country and meets criteria equivalent to the ‘Australian University’ category.

1

0

1

Overseas University of Specialisation

Recognised as a university by its home country and meets criteria equivalent to the ‘Australian University of Specialisation’ category.

0

0

0

Total providers

54

125

179

Sources: Higher Education Standards Framework (Threshold Standards) 2015, Part B; TEQSA, ‘Search the National Register for Providers and Courses’, TEQSA website, data extracted 24 September 2020; Coaldrake, What’s in a name?, op. cit., p. 5.

The PCS Review

A review of the PCS (the PCS Review) was announced in 2018, to ensure:

… the provider categories can accommodate changing practices in higher education and encourage choice of educational offerings to students, while continuing to provide the quality education the Australian community expects.[18]

The review was asked to make recommendations as to the most appropriate categorisation system for Australian higher education delivery, and criteria settings within each of the recommended categories.[19]

In 2019, a total of 66 public submissions were received in response to a discussion paper.[20]

The Final Report of the PCS Review (the Report) considered a number of key issues in relation to the PCS, namely:

•       the complexity of the current structure, with six categories, most of which are not commonly used[21]

•       the undifferentiated nature of the ‘Higher Education Provider’ category, which includes both for-profit and not-for-profit providers (including TAFE providers and semi-autonomous government bodies) specialist providers and comprehensive providers, faith-based bodies, and pathway providers affiliated with universities[22]

•       the diversity and expansion of the higher education sector as a whole, in contrast to the relatively static number of universities[23]

•       the lack of provision for ‘greenfield universities’ (newly established entities not previously registered with TEQSA)[24]

•       the importance of safeguarding the standards of self-accrediting authority criteria, while also clarifying and simplifying requirements[25] and

•       the limited awareness of, and transparency of, the PCS.[26]

The Report made 10 recommendations and included a revised PCS model, which reduced the number of provider categories to four:

•       Institutes of Higher Education—a revision of the current Higher Education Provider category

•       National Institutes of Higher Education—a new category, requiring self-accreditation of 70 per cent of courses, a strong history of successful delivery, and a depth of academic leadership and engagement, but no research unless offering higher degrees by research

•       Australian Universities—a revision and merger of the existing Australian University and Australian University of Specialisation categories, which allows for universities with a specialised focus, and includes increased research and engagement requirements and

•       Overseas Universities in Australia—a merger of the current Overseas University and Overseas University of Specialisation categories.[27]

The Government’s response to the PCS Review accepted the aim of all of the recommendations, and committed to further consultation on their implementation, in accordance with the requirements to consult on the making of Standards under section 58 of the TEQSA Act.[28] The HESP consultation paper, Amending the Higher Education Standards Framework: Provider Category Standards (the Draft PCS consultation paper) details the proposed changes in response to the PCS Review in the form of draft PCS and draft amendments to the self-accrediting authority criteria.[29] In contrast to the categories proposed in the PCS Review, the draft PCS includes  a ‘University College’ category in place of the proposed National Institutes of Higher Education category.[30]

While most of the recommendations can be implemented without the need to amend the TEQSA Act, some of the terminology changes in the revised PCS model, and the increased research requirements, are not currently provided for. Such changes are the primary purpose of the Bill.

History of changes to TEQSA’s functions

TEQSA’s early years were characterised by controversy over the way it exercised its powers. In 2013, the Review of Higher Education Regulation (the Lee Dow-Braithwaite Review) recommended the TEQSA’s work be narrowed to focus on its core activities as a regulator [provider registration and re-registration applications, course accreditation and re-accreditation applications].[31] The Government initially gave effect to changes through Ministerial Direction No. 2 of 2013 (the Ministerial Direction) which required:

•       ‘a deregulatory and quality enhancement philosophy and deliberate action to remove red tape’

•       additional consultation across the higher education sector

•       additional reporting by TEQSA to the Minister

•       simplified processes and improved timelines for registration activities and

•       a limit on sectoral quality assessment activities, which could only be conducted ‘if TEQSA has surplus resources after fully achieving the above tasks and priorities’, effectively ending quality assessment activities.[32]

Further action was taken through amendments to the TEQSA Act in 2014, although the Bill was amended in the Senate and the Government’s intention to remove TEQSA’s quality assessment powers did not go ahead.[33]

The Review of the impact of the TEQSA Act on the higher education sector (the Review), which was completed in 2017, did not find any major failings in TEQSA’s operations.[34] The legislative response to the Review did not substantially change TEQSA’s functions, focusing instead on minor updates to the TEQSA Act to better support the regulator’s existing remit, including:

•       a new notice period for quality assessments, which opened the way for TEQSA’s quality assessment powers to be reinstated by repealing the Ministerial Direction in December 2019[35]

•       removal of the Research Standards and Teaching and Learning Standards from the HES Framework, as their purpose was unclear—no non-Threshold Standards have ever been made[36]

•       changes to meeting requirements for TEQSA Commissioners

•       additional information sharing and disclosure requirements

•       additional requirements that the HESP include members with expertise in non-university higher education providers and

•       offences relating to the use of the word ‘university’ by overseas providers.[37]

In September 2020, TEQSA’s remit was also expanded to include the Government’s response to academic cheating.[38]

Committee consideration

Senate Selection of Bills Committee

At its meeting of 2 September 2020, the Senate Selection of Bills Committee deferred consideration of the Bill to its next meeting.[39]

Senate Standing Committee for the Scrutiny of Bills

At the time of writing, the Senate Standing Committee for the Scrutiny of Bills has not considered the Bill.[40]

Policy position of non-government parties/independents

At the time of writing, no non-government parties/independents have expressed a position on the Bill. Labor Senator Kim Carr has raised questions about the interactions between the research quality provisions in the Bill and university funding. This is discussed in detail below.

Position of major interest groups

At the time of writing, no major interest groups have expressed a view on the Bill.

Financial implications

The Explanatory Memorandum states that the student records management provisions in the Bill are expected to cost $2 million over four years from 2020–21, and that the other measures have no cost.[41]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[42]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights has considered the Bill and has no comment.[43]

Key issues and provisions—the Higher Education Standards Framework

Commencement

Schedule 1, Part 1, (items 1–19) commences on the earlier of a day to be fixed by Proclamation and 12 months after Royal Assent.

Schedule 1 of the Bill deals with amendments to the TEQSA Act in response to the PCS Review.

Simplifying the HES Framework

Item 14 proposes to further simplify the HES Framework by repealing and replacing subsection 58(1), which currently lists the components of the HES Framework. In place of the current five item list, proposed subsection 58(1) provides for the Minister to make, as the HES Framework:

(a) the Threshold Standards, and

(b)              other standards against which the quality of higher education can be assessed.

Items 2, 3, 4, 5, 12, 13, 16 and 17 make consequential amendments, repealing various references to components of the current HES Framework, and replacing them with references to the Threshold Standards which will be created under proposed paragraph 58(1)(a).

This change would mean the scope of the Threshold Standards would no longer be defined in the TEQSA Act. However, the Threshold Standards would still be subject to consultation before the Minister makes a Standard. The function of the Threshold Standards would also be subject to the limitations of TEQSA’s functions under the TEQSA Act, as outlined in the background to this Bills Digest.

Amending references to provider categories

Although the provider categories are chiefly dealt with in subordinate legislation (currently in the Threshold Standards 2015), the university categories are referenced in sections of the TEQSA Act which specify how particular categories of provider are to be dealt with by TEQSA. For example, section 19 of the TEQSA Act requires that a preliminary assessment of a provider application for registration must include consultation with the Minister responsible for higher education of each relevant state and territory, if the category the provider has applied for, or the category that TEQSA considers would be appropriate, permits the use of the word ‘university’.

The Bill proposes to update references to the university categories in the TEQSA Act to reflect the proposal to reduce the current five university provider categories to two.

Items 6, 7, 8, 9 and 18 repeal and replace references to provider categories that permit the use of the word ‘university’ (which under current arrangements include five university provider categories) with references to the proposed provider categories of Australian University and Overseas University.

Section 45 provides for universities, and other providers, if authorised, to self-accredit courses of study. Subsection 45(1) provides for universities registered in the Australian university provider category to automatically receive self-accrediting status. Item 10 makes a minor technical amendment, repealing the reference to ‘the Australian university provider category’ from this subsection and replacing it with ‘the “Australian University” provider category’. Item 11 inserts proposed subsection 45(2A), which provides that registration in the Australian University provider category would not automatically confer self-accrediting status under subsection 45(1), if the provider has a specialised focus in accordance with the Threshold Standards. Such a provider would therefore need to apply to self-accredit their courses, or have their courses accredited by TEQSA.

Item 1 makes a minor consequential amendment to the simplified outline of the TEQSA Act in section 4, to replace a reference to ‘Australian universities registered in the Australian university provider category’ with ‘those providers registered in the “Australian University” provider category’, in the paragraph discussing those providers that can self-accredit their courses of study.

Research quality

There are currently no research requirements in the TEQSA Act. Under the Threshold Standards 2015 providers registered as Australian Universities, Australian University Colleges, and Australian University of Specialisation are currently required to undertake research

… that leads to the creation of new knowledge and original creative endeavour at least in those broad fields of study in which Masters Degrees (Research) and Doctoral Degrees (Research) are offered.[44]

Australian universities are required to offer research degrees in at least three broad fields of study, while a lower threshold applies to an Australian University College (one broad field) and Australian University of Specialisation (one or two broad fields).[45] Under the proposed PCS, these categories would be combined into the Australian University category.

No volume or quality requirements are currently applied to these research measures. The PCS Review recommended:

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.[46]

Item 15 inserts proposed section 59A, which requires TEQSA to have regard to the quality of the research undertaken as part of considering if a provider applying to be, or registered as, an Australian University meets the Threshold Standards in relation to research.

Proposed subsections 59A(4), (5) and (7) provide that TEQSA may, in writing, determine matters relating to the quality of research for the purposes of the section. That determination must be approved by the Minister. The determination so approved is a legislative instrument made by the Minister on the day that it is approved.[47]

What will the research quality requirements be?

The final shape of the research quality requirements, and their likely effect on providers, cannot be analysed for this Bills Digest as the legislative instrument has not yet been made. However, the HESP Draft PCS consultation paper includes draft research quality criteria, which provide some guidance as to the likely requirements:

The undertaking of research that leads to new knowledge and original creative endeavour and research training are fundamental to the status of a higher education provider as an ‘Australian University’. To be registered and remain registered in the ‘Australian University’ category, the higher education provider:

14.              from 1 January 2030, undertakes research at or above one or both of the benchmark standards described in B1.3 (16) that leads to the creation of new knowledge and original creative endeavour in:

a.              at least three, or at least 50 per cent, of the broad (2-digit) fields of education in which it delivers courses of study, whichever is greater; or

b.               all broad (2-digit) fields of education in which it has authority to self-accredit, in the case of a university with a specialised focus.

TEQSA will use existing national benchmarking exercises where they are available. Where they are not available, TEQSA will benchmark against standard indicators.

For the first ten years after entry to the ‘Australian University’ category a new entrant:

15.              undertakes research at or above one or both of the benchmark standards described in B1.3 (16) that leads to the creation of new knowledge and original creative endeavour in:

a.              at least three, or at least 30 per cent, of the broad (2-digit) fields of education in which it delivers courses of study, whichever is greater; or

b.               all broad (2-digit) fields of education in which it has authority to self-accredit, in the case of a university with a specialised focus.

Following this period, the provider’s research requirements will be assessed against the percentage set out in criterion B1.3 (14).

Where an ‘Australian University’ provider delivers courses of study in new broad (2-digit) field/s of education, the provider may request that those field/s not be considered in the quantum of fields for the purposes of compliance of this criterion for a period of no more than ten years from the commencement of those course of study offerings.

16.              The benchmark standards for research are:

                            a.              research that is ‘world standard’ measured using best practice indicators; and/or

b.               research of national standing in fields specific to Australia, in the case of research that is not easily captured by existing standard indicators.

Standard indicators to be used in assessment may include (but are not limited to) peer reviewed journal papers, rate of publication, weighted publications, success in competitive grant rounds and other direct funding, citation analysis, impact measures, and existing assessment exercises.[48]

How will research quality be evaluated?

TEQSA has not confirmed which ‘best practice indicators’ it may adopt to evaluate the benchmark standards. Australia currently has a well-established measure of research quality, Excellence in Research for Australia (ERA). ERA is a major undertaking, administered by the Australian Research Council (ARC), which has published national reports of ERA evaluations undertaken for field of research (FoR) in 2012, 2015 and 2018.[49] According to the Portfolio Budget Statements 2019–20, the ERA program was projected to cost around $3.6 million in 2019–20.[50] The Draft PCS consultation paper noted:

The existing national assessment exercise, the Australian Research Council’s (ARC) Excellence in Research for Australia (ERA), uses a combination of research indicators to underpin expert committee ratings of research quality against world standard. The Review noted that ERA currently assesses research using the Australian and New Zealand Standard Research Classification (ANZSRC) of fields of research administered by the Australian Bureau of Statistics (ABS). For the purposes of the PCS, these fields could be correlated to fall within one or more of the 12 ASCED 2-digit fields of education.[51]

Can universities meet new research quality requirements?

Universities may be constrained in their responses to research quality requirements by the current funding environment. According to the latest Australian Bureau of Statistics (ABS) data, universities spent approximately $12.2 billion on research and experimental development in 2018, with 56.1 per cent ($6.8 billion) coming from general university funds, compared with 29.5 per cent ($3.6 billion) from Australian Government research funding.[52] The largest sources of general university funds are Australian Government funding for teaching and fees from overseas students.[53]

Changes to Australian Government funding for teaching are currently proposed in the Higher Education Support Amendment (Job-ready Graduates and Supporting Regional and Remote Students) Bill 2020 (the Job Ready Graduates Bill). The Job Ready Graduates Bill seeks to reduce average per-student funding for teaching.[54] Latest estimates suggest around 10 per cent of such funding is currently spent on non-teaching functions (including, but not limited to, research) although this varies considerably between institutions.[55] This non-teaching expenditure from teaching funding has previously been seen as a way to ensure universities have sufficient resources to maintain their wider role in society, including their research functions.[56] Questions about some universities’ capacity to meet increasing research requirements were raised during the Senate Education and Employment Legislation Committee inquiry hearings about the Job Ready Graduates Bill, although no university that was questioned indicated it expected not to be able to meet the requirements.[57]

In 2020, universities have already faced significant revenue declines due to the effect of COVID-19 border closures on the international education market. Modelling from the Melbourne Centre for the Study of Higher Education at the University of Melbourne suggests universities will face a shortfall of discretionary income available for research of between $6.4 billion and $7.6 billion from 2020 to 2024, resulting in a possible reduction of the university research workforce by 11 per cent.[58] Overseas student fees are estimated to account for around 27 per cent of total university research expenditure, or about $3.3 billion.[59]

The interaction of research quality requirements and funding challenges will be experienced differently by different universities. On the one hand, the Melbourne Centre for the Study of Higher Education modelling identifies predominantly Group of Eight (Go8) research intensive universities (University of Melbourne, the Australian National University, the University of Sydney, the University of Queensland, the University of Adelaide, the University of Western Australia, Monash University and UNSW Sydney) as among the most likely to experience significant research funding impacts from overseas student fee losses.[60] On the other hand, these are the universities that are best placed to comfortably meet any research quality requirements, with a track record of well above world standard and above world standard research across multiple FoRs according to ERA reporting.[61] Go8 universities also account for the bulk of research income, collectively receiving over 60 per cent of government research funding in 2018.[62]

On the other hand, while less research intensive universities are less likely to experience large research expenditure impacts from overseas student fee reductions due to COVID-19, they also typically receive less dedicated research income on which they can draw as an alternative to general university funds. For example, the Regional Universities Network (RUN, made up of CQUniversity, Southern Cross University, Federation University Australia, University of New England, University of Southern Queensland, University of the Sunshine Coast and Charles Sturt University) collectively received only around three per cent of government research funding in 2018.[63]

In summary, while there is no indication that any university would immediately struggle to meet research quality requirements imposed by the revised PCS, and such an assessment could not be made until TEQSA’s evaluation approach is announced, the combination of COVID-19 together with the reduction in per-student funding as proposed in the Job Ready Graduates Bill, could risk research capacity in some institutions, unless alternative research support arrangements are introduced. On 1 July 2020, Education Minister Dan Tehan announced a Research Sustainability working group to provide advice ‘about sustainable approaches to research funding for universities during COVID-19 and beyond’.[64] At the time of writing, the outcomes of this work have not yet been announced, although there is some expectation of an announcement in the upcoming Budget.[65]

The outcome for a university unable to meet research quality requirements in the Threshold Standards, based on the four categories in the draft PCS, would be registration as a University College rather than as a university.

Other provisions

Commencement

Schedule 1, Part 2, (items 20–30) commences on the day after Royal Assent.

Other amendments to the TEQSA Act

Undergraduate certificates

Currently, under section 5 of the TEQSA Act, diploma, advanced diploma, associate degree, bachelor degree, graduate certificate, graduate diploma, masters degree and doctoral degree qualifications are identified as higher education awards. This definition is used throughout the TEQSA Act to define the scope of TEQSA’s regulatory powers in relation to types of qualifications. For example, it is an offence under section 106 for an entity to offer a higher education award if the entity is not registered. Item 20 amends the list of qualifications to add ‘undergraduate certificate’ after ‘bachelor degree’. The undergraduate certificate is half a full-time year of study (normally four units), and was added to the Australian Qualification Framework in 2020 as part of the COVID-19 higher education relief package.[66]

Extension of a registration period

Currently, under section 37A of the TEQSA Act, TEQSA may extend the period of a registered higher education provider’s registration, so long as the period has not previously been extended by TEQSA. A period of registration must not exceed seven years, but the extension of registration provides a means to exceed this period.[67] Item 22 removes the limitation on extending registration if TEQSA has already done so previously.

The same limitation applies to TEQSA accredited courses of study (for non-self-accrediting providers) under section 57A. Item 26 similarly proposes to remove the limitation on extending accreditation if TEQSA has already done so previously.

Changing a provider’s registration category

Currently, section 38 provides for TEQSA to change the category a provider is registered in, either on its own initiative, or in response to an application by the provider.

Item 23 inserts proposed subsection 38(1A) to clarify that TEQSA may decide not to change the category in response to an application by the provider. Item 24 amends subsection 38(2), to require that in making this decision TEQSA must have regard to the Threshold Standards. Item 25 amends section 40 to require that TEQSA must notify the provider of such a decision. Item 27 amends the table at section 183 to include such a decision in the table of reviewable decisions.

Higher education student records

As part of the Job Ready Graduates Package announced on 19 June 2020, $2.0 million was allocated for TEQSA to assume control of student records where a registered higher education provider ceases operations, largely for updating ICT infrastructure.[68] According to the departmental fact sheet on the measure, 43 higher education providers have ceased operation since TEQSA began operations in 2012. The fact sheet states:

This measure will provide TEQSA with similar legislative powers to those of the Australian Skills Quality Authority (ASQA) in sections 211 to 214 of the National Vocational Education and Training Regulator Act 2011. This requires registered training organisations (RTOs) to provide ASQA with a copy of their student records within 30 days of ceasing operation unless the records have been transferred to another RTO because the student has transferred to the new RTO.

This measure will allow current and former students of closed higher education providers to obtain their academic records from TEQSA in an efficient manner, including details of qualifications earned. This measure has particular importance for international students, who may have difficulty advocating on their own behalf to secure academic records where their higher education provider collapses.[69]

Item 21 inserts a definition of higher education student records into section 5 of the TEQSA Act. The proposed definition covers any document or object in any form (including electronic) that is held by a higher education provider because of its connection with a person who is or was enrolled in an accredited course provided by that provider. If an entity was formerly registered as a higher education provider, the same definition applies for documents held in relation to when the entity was registered.

Item 28 inserts proposed Subdivision C—higher education student records at the end of Division 2 of Part 10, which deals with the management of higher education information. Within this subdivision:

•       proposed section 197AA provides that if a higher education provider ceases to operate or an entity’s registration is cancelled, then TEQSA may give written notice to a person who is, or was, an executive officer for the entity. That notice may require the person to provide higher education student records to TEQSA within a period which is specified in the notice. The period must be at least 14 days after the date of the notice. If the person to whom the notice is given possesses or controls the records specified in the notice but fails to comply with the requirement to provide the records, the person commits a criminal offence. The maximum penalty for the offence is 150 penalty units ($33,300). In the alternative, the failure to comply may give rise to a civil penalty of a maximum of 300 penalty units ($66,600)[70]

•       proposed section 197AB provides authority for TEQSA to request higher education records by written notice from someone who is not, or was not, an executive officer, if TEQSA considers that the person may hold higher education student records relating to a registered higher education provider that has effectively ceased to operate, or its registration is cancelled

•       proposed section 197AC provides that a student transferring from one registered higher education provider to another may request that the first entity provide the second entity with a copy of their higher education student records—the second entity may also make an equivalent request of the first entity. The proposed section does not appear to require the student’s permission for this latter exchange of information

•       proposed section 197AD provides that TEQSA may provide a copy of a higher education student record to a registered higher education provider if the person to whom the record relates is seeking to enrol with that provider and requests, in writing, that TEQSA provide the record. In that case, the provider the person is seeking to enrol with may also make the same request of TEQSA, with the person’s permission and

•       proposed section 197AE specifies that the Commonwealth is liable to pay a reasonable amount of compensation if the operation of proposed section 197AA would result in the acquisition of property from a person otherwise than on just terms, and that if agreement cannot be reached about a reasonable amount, the person can institute proceedings in the Federal Court to recover compensation from the Commonwealth.[71]

Domain names with the word ‘university’

While the use of the word university in an entity’s name is protected by the PCS, no such protections currently apply to domain names.

Item 29 inserts proposed section 204A, which relies on the Commonwealth’s legislative power in relation to ‘postal, telegraphic, telephonic, and other like services’, under section 51(v) of the Constitution. Proposed subsections 204A(1) and (2) prohibit issuing a domain name which includes the word university (or a word or expression that has the same or similar meaning to the word university) without written approval from the Minister, if the domain name includes an Australian Top-Level Domain (such as .au).

Under proposed subsection 204A(3), the Minister may, in writing, delegate the power to approve use of the word ‘university’ in domain names to an SES or acting SES employee in the Department.

Indigenous student assistance grants

Commencement

Schedule 2, items 1 to 4, commence on the day after Royal Assent.

Schedule 2, item 5, commences immediately after the other items in Schedule 2, unless the same provision in the Higher Education Support Amendment (Job-ready Graduates and Supporting Regional and Remote Students) Act 2020 commences on or before that date, in which case item 5 does not commence at all.

Key provisions

Part 2-2A of HESA provides for Indigenous student assistance grants, currently consisting of Indigenous Student Success Program (ISSP) grants administered by the National Indigenous Australians Agency.[72] The ISSP provides funding to universities for scholarships, tutorial assistance, mentoring, safe cultural spaces and other personal support services, which the university can tailor to match their students’ needs.[73]

Currently, HESA refers to grants to ‘Indigenous students’. Schedule 2 of the Bill proposes amendments to refer to ‘Indigenous persons’, to provide for grants to prospective students.

Item 5 inserts a definition of Indigenous person, as having the same meaning as in the Indigenous Education (Targeted Assistance) Act 2000, to the Dictionary in Schedule 1 of the HESA. Section 4 of that Act defines Indigenous person as a member of the Aboriginal race of Australia or a descendant of the Indigenous inhabitants of the Torres Strait Islands.

Items 1 and 2 make minor amendments to the language of HESA in sections 3-5, 8-1 and 38-1, which set out the kinds of grants provided under HESA, to replace references to ‘Indigenous students’ with references to ‘Indigenous persons’ where relevant. Item 3 similarly replaces ‘Indigenous students’ with ‘Indigenous persons (who may or may not be students)’ in section 38-10, which sets out eligibility for Indigenous student assistance grants.

Item 4 repeals and replaces paragraph 38-10(1)(b), which currently provides that Indigenous student assistance grants can be for the purpose of increasing the number of Indigenous students enrolling in, progressing in and completing courses leading to higher education awards. Proposed paragraph 38-10(1)(b) has the effect of changing the wording of this provision slightly for clarity, but assistance for enrolling in, progressing in and completing courses remain the allowable purposes for which Indigenous student assistance grants can be made.

Concluding comments

The main purpose of the Bill is to amend the TEQSA Act to provide a framework to implement the Government’s response to the PCS Review. Although the Bill itself includes relatively minor changes, current university funding issues may act as a constraint on providers’ capacity to respond effectively to the most significant outcomes of the PCS Review dealt with in the Bill, especially the implementation of university research quality requirements in the Threshold Standards.

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[1].              Australian Government response to the review of the Higher Education Provider Category Standards, December 2019.

[2].              P Coaldrake, What’s in a name? : review of the Higher Education Provider Category Standards: final report, (PCS Review), Department of Education, Canberra, October 2019.

[3].              D Bradley, Review of Australian higher education: final report, (Bradley Review), Department of Education, Employment and Workplace Relations (DEEWR), Canberra, December 2008, Recommendation 20, p. xxi.

[4].              Tertiary Education Quality and Standards Agency Act 2011 (TEQSA Act), section 2.

[5].              TEQSA Act, section 134.

[6].              TEQSA Act, section 14.

[7].              TEQSA Act, section 15.

[8].              TEQSA Act, section 16.

[9].              TEQSA Act, note 1 to subsection 58(1), section 5, and paragraph 21(1)(a).

[10].              Subsection 18(1) of the TEQSA Act allows providers to apply to TEQSA for registration within a particular provider category.

[11].              TEQSA Act, sections 100 and 101.

[12].              TEQSA Act, section 58.

[13].              Department of Education, Skills and Employment (DESE), ‘The Higher Education Standards Panel (HESP)’, DESE website; TEQSA Act, section 168.

[14].              TEQSA Act, subsection 58(3). Under Administrative Arrangements Order – 1/2/2020, the Minister for Education is responsible for the Australian Research Council Act 2001.

[15].              TEQSA Act, subsection 58(4).

[16].              Ministerial Council on Education, Employment, Training and Youth Affairs (MCEETYA), National Protocols for Higher Education Approval Processes, MCEETYA, October 2007; Coaldrake, What’s in a name?, op. cit., pp. 2–4.

[17].              Higher Education Standards Framework (Threshold Standards) 2011, Chapter 2; MCEETYA, National Protocols for Higher Education Approval Processes, 31 March 2000, pp. 1–3; MCEETYA, National Protocols for Higher Education Approval Processes, op. cit.; Ministerial Council for Education, Early Childhood Development and Youth Affairs (MCEECDYA), ‘National Protocols for Higher Education Approval Processes—submissions of feedback’ archived MCEECDYA website, n.d.; G Guthrie, S  Johnston and R King, Further development of the National Protocols for Higher Education Approval Processes, a report for the Department of Education, Science and Training (DEST), DEST, [Canberra], 2004.

[18].              D Tehan (Minister for Education), Review into Higher Education Provider Category Standards, media release, 17 October 2018.

[19].              Coaldrake, What’s in a name?, op. cit., p. 59.

[20].              DESE, ‘Review of the Higher Education Provider Category Standards’, DESE website.

[21].              Coaldrake, What’s in a name?, op. cit., p. 12.

[22].              Ibid.

[23].              Ibid., p. 28.

[24].              Ibid., p. 41.

[25].              Ibid., pp. 42–43.

[26].              Ibid., p. 44.

[27].              Ibid., pp. vii–viii and 48–51.

[28].              Australian Government response to the review of the Higher Education Provider Category Standards, December 2019.

[29].              Higher Education Standards Panel (HESP), Amending the Higher Education Standards Framework: Provider Category Standards, 2020, pp. 29–34.

[30].              Ibid., pp. 30–31.

[31].              K Lee Dow and V Braithwaite, Review of higher education regulation: report, Department of Industry, Innovation, Science, Research and Tertiary Education, Canberra, 2013, recommendation 1, p. 56.

[32].              Deloitte Access Economics, Review of the impact of the TEQSA Act on the higher education sector, Department of Education and Training, Canberra, March 2017, p. iv.

[33].              C Pyne, ‘Second reading speech: Tertiary Education Quality and Standards Agency Amendment Bill 2014’, House of Representatives, Debates, 27 February 2014, p. 1080; Tertiary Education Quality and Standards Agency Amendment Act 2014.

[34].              Deloitte Access Economics, Review of the impact of the TEQSA Act on the higher education sector, op. cit., p. ii.

[35].              Notice of Revocation of Ministerial Direction No. 2 of 2013. Currently, under section 60 of the TEQSA Act, TEQSA may review or examine any aspect of an entity’s operations to assess the quality of higher education provided by one or more registered providers and assess systematic issues related to particular courses of study or kinds of regulated higher education awards. However, under subsection 60(2), at least 60 days’ notice must be given to the Minister and the Higher Education Standards Panel (HESP), before commencing a review that may have an impact on a majority of registered higher education providers.

[36].              Deloitte Access Economics, Review of the impact of the TEQSA Act, op. cit., p. 9.

[37].              Tertiary Education Quality and Standards Agency Amendment Act 2019; H Ferguson, Tertiary Education Quality and Standards Agency Amendment Bill 2019, Bills digest, 14, 2019–20, Parliamentary Library, Canberra, 2019.

[38].              Tertiary Education Quality and Standards Agency Amendment (Prohibiting Academic Cheating Services) Act 2020; H Ferguson, Tertiary Education Quality and Standards Agency Amendment (Prohibiting Academic Cheating Services) Bill 2019, Bills digest, 84, 2019–20, Parliamentary Library, Canberra, 2020.

[39].              Senate Standing Committee for the Selection of Bills, Report, 8, 2020, The Senate, Canberra, 3 September 2020, [p. 4].

[40].              Senate Standing Committee for the Scrutiny of Bills, Index of Bills considered by the Committee, 18 September 2020.

[41].              Explanatory Memorandum, Higher Education Legislation Amendment (Provider Category Standards and Other Measures) Bill 2020, p. 5.

[42].              The Statement of Compatibility with Human Rights can be found at page 7 of the Explanatory Memorandum to the Bill.

[43].              Parliamentary Joint Committee on Human Rights, Human rights scrutiny report, 11, 2020, 24 September 2020, pp. 81–82.

[44].              Threshold Standards 2015, Parts B1.2.3, B1.3.3 and B1.4.3.

[45].              Threshold Standards 2015, Parts B1.2.2, B1.3.2 and B1.4.1.

[46].              Coaldrake, What’s in a name?, op. cit., pp. vii–viii.

[47].              Under the Legislation Act 2003 a legislative instrument can be subject to disallowance if either a Senator or Member of the House of Representatives moves a motion of disallowance within 15 sitting days of the day that the legislative instrument is tabled.

[48].              HESP, Amending the Higher Education Standards Framework, op. cit., pp. 14–15.

[49].              Australian Research Council (ARC), ‘Excellence in Research for Australia’, ARC website, last modified 10 October 2019.

[50].              Australian Government, Portfolio budget statements 2019–20: budget related paper no. 1.5: Education and Training Portfolio,  p. 117.

[51].              HESP, Amending the Higher Education Standards Framework, op. cit., p. 15.

[52].              Parliamentary Library calculations based on Australian Bureau of Statistics (ABS), ‘Research and experimental development, higher education organisations, Australia’, summary statistics, 2018, ABS website, released 20 May 2020. Totals may not sum due to rounding.

[53].              DESE, 2018 Higher Education Providers Finance Table, DESE, 13 March 2020. See in particular Australian Government funding for teaching through the Commonwealth Grant scheme, Australian Government payments on behalf of students through HECS-HELP, and revenue from fee paying overseas students under fees and charges. Other revenue sources are smaller and/or tied to particular projects and outcomes.

[54].              H Ferguson, Higher Education Support Amendment (Job-Ready Graduates and Supporting Regional and Remote Students) Bill 2020, Bills digest, 12, 2020–21, Parliamentary Library, Canberra, 2020; M Warburton, Submission to the Senate Education and Employment Committee, Inquiry into the Higher Education Support Amendment (Job-ready Graduates and Supporting Regional and Remote Students) Bill 2020, [Submission no. 25], September 2020, p. 2.

[55].              Deloitte Access Economics, Transparency in higher education expenditure, report prepared for the Department of Education, November 2019, p. xiii.

[56].              H Ferguson, Higher Education Support Amendment (Job-Ready Graduates and Supporting Regional and Remote Students) Bill 2020, op. cit., p. 3.

[57].              Senate Education and Employment Legislation Committee, Higher Education Support Amendment (Job-Ready Graduates and Supporting Regional and Remote Students) Bill 2020, The Senate, Canberra, September 2020, pp. 24, 29, and 74–75.

[58].              F Larkins and I Marshman, COVID-19 pandemic research funding shortfalls and workforce reductions modelled for individual Australian universities, LH Martin Institute, University of Melbourne, 21 September 2020.

[59].              A Norton, ‘How reliant is Australian university research on international student profits?’, Higher education commentary from Carlton, 21 May 2020.

[60].              Larkins and Marshman, COVID-19 pandemic research funding shortfalls, op. cit., p. 8.

[61].              ARC, ‘ERA outcomes’, ARC website.

[62].              In 2018, the Group of Eight received 63.1 per cent of Australian Government Research Block Grant (RBG) funding, which is to support university research capacity and research training, and 66.0 per cent of all reportable research grant income, including 68.7 per cent of national competitive research grant income. Figures are Parliamentary Library calculations based on DESE, Research Income Data (1994–2018), 21 April 2020 and DESE, RBG Allocations Time Series, 18 December 2019. National competitive grant income is the largest source of university competitive research grant income. It includes grants from the Australian Research Council, National Health and Medical Research Council, Medical Research Future Fund, and Rural Research and Development Corporations (RDCs), as well as other nationally competitive Australian Government and state and territory government schemes.

[63].              In 2018, the Regional Universities Network received 3.0 per cent of RBG funding, and 3.0 per cent of all reportable research income, including 3.3 per cent of national competitive research grant income. Figures are Parliamentary Library calculations based on DESE, Research Income Data (1994–2018), 21 April 2020 and DESE, RBG Allocations Time Series, 18 December 2019.

[64].              D Tehan (Minister for Education), Research sustainability working group, media release, 1 July 2020.

[65].              T Dodd and R Ferguson, ‘Urgent plan to save uni researchers’, The Australian, 23 September 2020, p. 1.

[66].              DESE, ‘Higher education relief package - Frequently Asked Questions’, DESE website; Addendum No.3 to AQF Second Edition January 2013.

[67].              TEQSA Act, subsections 21(6) and 37A(2).

[68].              DESE, ‘Improving transparency and accountability’, DESE website, last modified 24 June 2020; DESE, Improving transparency and accountability: student records management, DESE, [18 June 2020], p. 2.

[69].              DESE, Improving transparency and accountability: student records management, op. cit., p. 1.

[70].              Penalties are expressed in penalty units to facilitate adjustment across the Act from time to time. A penalty unit is currently equal to $222, with effect from 1 July 2020. See Notice of Indexation of the Penalty Unit Amount .

[71].              Section 51(xxxi) of the Constitution gives the Parliament power to make laws with respect to the acquisition of property on just terms from any state or person for any purpose in respect of which the Parliament has power to make laws.

[72].              Indigenous Student Assistance Grants Guidelines 2017.

[73].              National Indigenous Australians Agency (NIAA), ‘Indigenous Student Success Program’, NIAA website.