Chapter 1


Chapter 1

Background

Reference

1.1        On 24 March 2011, the Senate referred the provisions of the Tertiary Education Quality and Standards Agency Bill 2011 and the Tertiary Education Quality and Standards Agency (Consequential Amendments and Transitional Provisions) Bill to the Senate Standing Legislation Committee on Education, Employment and Workplace Relations for inquiry and report by 10 May 2011.

Conduct of the inquiry and submissions

1.2        The committee advertised the inquiry in The Australian on 30 March 2011, calling for submissions by 13 April 2011. Details of the inquiry were placed on the committee website.

1.3        The committee also contacted a number of organisations inviting submissions to the inquiry. Submissions were received from 34 individuals and organisations, as listed in Appendix 1.

1.4        A public hearing was held on 19 April 2011. The witness list for the hearing is at Appendix 2.

Acknowledgement

1.5        The committee thanks those organisations and individuals who contributed to this inquiry by preparing written submissions and giving evidence at the hearing.

Background

1.6        In 2008 the Review of Australian Higher Education, led by Professor Denise Bradley AC (the 'Bradley Review'), advocated a shift in current higher education funding and resourcing arrangements and proposed a significant re-design of Australia's higher education regulatory environment.[1]

1.7        The Bradley Review became a catalyst for a whole package of reforms announced in the 2009–10 Budget, designed to support productivity and participation. At the centre of the government's changes to the higher education system was a fundamental economic reform towards a demand-driven approach in which funding would be primarily based on student demand.[2]

1.8        The reforms are designed to assist universities to diversify in response to student needs and enable them to make appropriate strategic choices unique to their particular environment.

1.9        A specific recommendation of the Bradley Review was the establishment of an independent, national system of regulation for the sector by 2010.[3]

1.10      As a core component of its response to recommendations outlined in the review, in 2009 the Rudd Government committed to investing $57 million over four years to establish this new body, the Tertiary Education Quality and Standards Agency (TEQSA).[4]

1.11      TEQSA would pursue a standards-based approach to regulation and require higher education providers to meet or exceed these standards so as to remain registered. This approach aimed to safeguard the quality of education provided, ensuring that it is not compromised as the sector expands.

1.12      Responsibility for the national regulator would be shared between the Minister for Tertiary Education, Skills, Jobs and Workplace Relations (the Minister) and the Minister for Innovation, Industry, Science and Research (the Research Minister), in line with their respective portfolio responsibilities.[5]

1.13      Arrangements for establishing TEQSA began in 2009, with the agency due to be fully operational by 2012.[6]

Purpose of the Bills

1.14      Together, the Tertiary Education Quality and Standards Agency Bill 2011 and the Tertiary Education Quality and Standards Agency (Consequential Amendments and Transitional Provisions) Bill 2011 provide for the establishment of TEQSA.

1.15      The Bills would provide this new national regulatory body with administrative and enforcement powers to regulate university and non-university higher education providers. TEQSA would be an independent body, its functions set out in Part 8 of the Tertiary Education Quality and Standards Agency Bill 2011.

1.16      The Tertiary Education Quality and Standards Agency (Consequential Amendments and Transitional Provisions) Bill 2011 proposes consequential amendments to existing Commonwealth law, specifically the Higher Education Support Act 2003 and the Education Services for Overseas Students Act 2000. The amendments would update the two Acts to recognise TEQSA's role in regulating the higher education sector.

1.17      The Tertiary Education Quality and Standards Agency (Consequential Amendments and Transitional Provisions) Bill 2011 would also enable the transition of higher education providers' registration from the states and territories to TEQSA. Universities' self-accrediting authority would be transitioned into the new regulatory environment as part of their registration with TEQSA.

Key provisions of the Tertiary Education Quality and Standards Agency Bill 2011

1.18      The Tertiary Education Quality and Standards Agency Bill 2011 comprises 12 parts.

1.19      Part 1 specifies the interaction between TEQSA legislation and relevant state and territory laws pertaining to higher education. This includes those laws that will continue to operate simultaneously.

1.20      Part 2 outlines the three basic principles of regulation which underpin TEQSA's risk-based regulatory approach and with which TEQSA must act in accordance. The principles, developed through a period of consultation with the higher education sector, are:

  • Regulatory necessity – TEQSA must not excessively burden higher education providers when exercising its powers,
  • Reflecting risk – TEQSA must take into account a range of factors in the context of each higher education provider, including their past compliance with the Act; history of scholarship, teaching and research; student experiences; and financial status and capacity.
  • Proportionate regulation – TEQSA's powers must be exercised directly in proportion to any non-compliance, or risk of future non-compliance, by higher education providers.[7]

1.21      The legislation would replace state and territory-based systems of registration and would require higher education providers to be registered by TEQSA. Details are set out in Part 3.

1.22      Accreditation of courses of study is outlined in Part 4 and applies to all courses which providers are not authorised to self-accredit. To be accredited a course of study would be required to meet the Threshold Standards, which are comprised of Provider Standards and Qualification Standards. The latter would be based on the Australian Qualifications Framework, while the Provider Standards would be based on current National Protocols and focused on marginal and higher risk providers.[8]

1.23      A new Higher Education Standards Framework is set out in Part 5 of the Bill. TEQSA would register and evaluate the performance of education providers against this framework, which consists of five domains:

  • the Provider Standards;
  • the Qualification Standards;
  • the Teaching and Learning Standards;
  • the Research Standards; and
  • the Information Standards.[9]

1.24      Part 6 of the Bill seeks to endow TEQSA with investigative powers to fulfil its roles and responsibilities by covering:

  • Powers of authorised officers to search premises, either by consent or under warrant;
  • The obligations and incidental powers of authorised officers;
  • The rights and responsibilities of the occupiers of premises;
  • General provisions relating to the seizure of things; and
  • The appointment of authorised officers to undertake searches.[10]

1.25      These powers are similar to those of regulatory schemes across the Commonwealth and would be available to TEQSA for the purposes of determining whether the provisions of the Tertiary Education Quality and Standards Agency Bill 2011 are being complied with. [11] 

1.26      Part 7 of the Bill details offences and civil penalty provisions, provides for enforceable undertakings, infringement notices and injunctions, and stipulates that  higher education providers who have been de-registered may not apply for registration for a period of two years, unless otherwise advised by TEQSA.[12]

1.27      As well as establishing TEQSA as a Commonwealth body, Part 8 of the Bill contains provisions on the annual operating plans TEQSA must prepare. Annual reports are to be provided to the Minister for tabling in Parliament.[13]

1.28      Part 8 of the Bill also requires that TEQSA would be constituted by five Commissioners, including one Chief Commissioner, two full-time Commissioners and two part-time Commissioners. All would be appointed on the basis of expertise, appropriate qualifications and knowledge by the Minister in consultation with the Research Minister.

1.29      Part 9 of the Bill establishes the Higher Education Standards Panel, which would be responsible for developing standards and advising the Minister on the Higher Education Standards Framework.

1.30      Certain decisions of TEQSA would be reviewable, as set out in Part 10 of the Bill. Other miscellaneous provisions are set out in Part 12. These include:

  • The delegation of powers of the Minister and of TEQSA;
  • Provision that individuals such as a Commissioner and staff of TEQSA are not subject to legal actions when they perform their functions under this Bill in good faith;
  • Requirement for the Minister to cause a review of the impact of this Bill to be commenced by 1 January 2016;
  • Provision for TEQSA to make certain guidelines (by way of disallowable instruments); and
  • Provision for the Governor-General to make regulations.[14]

1.31      To ensure sound financial accountability, TEQSA would function as a prescribed agency for the purposes of the Financial Management and Accountability Act 1997 (FMA Act). As a statutory agency its staff will be engaged under the Public Service Act 1999.

Working with states and territories

1.32      Although TEQSA would assume responsibility for regulatory activities currently undertaken by the states and territories, this would not affect the state or territories' ability to establish or disestablish universities. New universities would continue to require legislation in the relevant jurisdiction to be established.

1.33      TEQSA would be required to consult with state and territory education ministers before 'taking certain actions against providers who operate in the category which permits the use of the word "university".'[15] These include:

  • the assessment of an application for registration made by a provider wishing to operate as a university;
  • the decision to impose a condition on a university’s ability to self-accredit; and
  • the cancellation of a university’s registration.

1.34      Commonwealth Ministers would also be required to consult relevant Ministerial Councils before establishing any standards universities must adhere to. These measures are designed to preserve the close links states and territories have with universities under their jurisdiction.[16]

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