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Higher Education Legislation Amendment Bill (No. 3) 2002

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2002

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

HIGHER EDUCATION LEGISLATION AMENDMENT BILL (NO. 3) 2002

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Education, Science and Training the Hon Dr Brendan Nelson MP)

 

 



HIGHER EDUCATION LEGISLATION AMENDMENT BILL (NO. 3) 2002

 

 

 

OUTLINE

 

 

The Higher Education Funding Act 1988 (HEFA) makes provision for grants of financial assistance to higher education institutions and other bodies for higher education purposes, establishes the Higher Education Contribution Scheme (HECS), the Postgraduate Education Loan Scheme (PELS), the Open Learning Deferred Payment Scheme (OLDPS) and the Bridging for Overseas Trained Professionals Loan Scheme and makes provision for the repayment of monies lent by the Commonwealth to students under those schemes.

 

The Bill amends the HEFA to:

 

  • extend the application of the National Protocols for Higher Education Approval Processes (National Protocols) to Australia’s external territories on the same basis as has been agreed by the states and mainland territories, so that universities or other providers of higher education may not deliver higher education in the external territories without accreditation in accordance with the National Protocols. 

 

The Bill will penalise financially, on a similar basis to that applied by the States and mainland Territories, persons who commit offences under the proposed legislation.  It will allow persons (other than natural persons) in an external territory to apply for approval as a self-accrediting entity or for accreditation of a course as a course leading to a higher education award.  Approval and accreditation may only be given having regard to the National Protocols.

 

The Bill also prohibits use of the term “university”, “university college” or any like words in a company or business name in an external territory without the Minister's approval.

 

 

FINANCIAL IMPACT

 

Nil

 



HIGHER EDUCATION LEGISLATION AMENDMENT BILL (NO. 3) 2002

 

NOTES ON CLAUSES

 

 

Clause 1 - Short title

 

Provides for the Act to be cited as the Higher Education Legislation Amendment Act (No. 3) 2002 .

 

 

Clause 2 - Commencement

 

Provides for the Act to commence on the day on which it receives the Royal Assent.

 

Clause 3 - Schedule(s)

 

Provides that each Act 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 the Schedule has effect according to its terms.



 

Schedule 1 - Amendment of the Higher Education Funding Act 1988

 

Item 1

 

Inserts a new section 2B which provides that proposed new Chapter 5C and any regulations made for the purposes of that Chapter extend to every external territory. 

 

 

Item 2

 

Inserts a proposed new Chapter 5C which has the effect of extending the National Protocols for Higher Education Approval Processes to all of Australia’s external territories on the same basis as has been agreed and applied by the States and mainland Territories and provides for related matters.

 

 

Chapter 5C - The Provision of higher education in the external territories

 

Part 5C.1 Preliminary

(NOTE: proposed section is abbreviated as ps)

 

 

ps106ZL  Definitions

 

Proposed subsection 106ZL(1) provides for definitions of Australian Qualifications Framework , Australian Qualifications Framework Register , higher education award , listed self-accrediting entity and National Protocols for the purposes of proposed new Chapter 5C. 

 

Proposed subsections 106ZL(2) and (3) clarify the meaning of operating or purporting to operate in an external territory as a university, part of a university or as another provider, of courses leading to higher education awards.

 

 

Part 5C.2 - Limitations upon operations of certain persons in the external territories

This Part provides for certain offences under proposed new Chapter 5C.

 

ps106ZM  Persons without accreditation not to operate as universities or other higher education providers in external territories

 

Proposed subsection 106ZM(1) has the effect of making it an offence for a person to operate or purport to operate in an external territory as a university (or part of a university) or as another provider, of courses leading to higher education awards unless the person is a listed self-accrediting entity, or approved by the Minister as a self-accrediting entity in relation to that territory under proposed section 106ZQ or any course offered by the person is accredited by the Minister under proposed section 106ZQ in relation to that territory.

 

Proposed subsection 106ZM(2) specifies that the offence in proposed subsection 106ZM(1) attracts strict liability in respect of the physical elements of circumstance in proposed subparagraphs (1)(c)(ii) and paragraph (1)(d), that the power of approval and accreditation respectively is under proposed section 106ZQ.  Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant in relation to that physical element.  A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code .  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).

 

 

ps106ZN  Persons without accreditation not to offer higher education awards or courses in external territories

 

Proposed subsection 106ZN(1) has the effect of making it an offence for a person to offer or purport to offer in an external territory a course leading to a higher education award unless the person is a listed self-accrediting entity, or approved by the Minister as a self-accrediting entity in relation to that territory under proposed section 106ZQ or the course is accredited by the Minister under proposed section 106ZQ in relation to that territory.

 

Proposed subsection 106ZN(2) has the effect of making it an offence for a person to offer or purport to offer in an external territory a higher education award unless the person is a listed self-accrediting entity, or approved by the Minister as a self-accrediting entity in relation to that territory under proposed section 106ZQ or the offer or purported offer of the award is dependant on the successful completion of a course accredited by the Minister under proposed section 106ZQ in relation to that territory as the course leading to that award.  The offence created by proposed subsection 106ZN(2) is intended to include the situation where a person who is not a listed self-accrediting entity or approved by the Minister as a self-accrediting entity in relation to that territory under proposed section 106ZQ, offers or purports to offer in an external territory a higher education award without offering or requiring the completion of any course.

 

Proposed subsection 106ZN(3) specifies that the offences in proposed subsections 106ZN(1) and (2) attract strict liability in respect of the physical elements of circumstance in proposed subparagraphs (1)(c)(ii) or (2)(c)(ii) and paragraphs (1)(d) or (2)(d), that the power of approval and accreditation respectively is under proposed section 106ZQ.  Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant in relation to that physical element.  A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code .  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).

 

 

ps106ZO  Persons without accreditation not to describe themselves as universities in external territories

 

Proposed subsection 106ZO(1) has the effect of making it an offence for a person to use the word “university”, “university college” or any like words to identify the person or their operation or purported operation in an external territory unless the person is a listed self-accrediting entity, or approved by the Minister as a self-accrediting entity in relation to that territory under proposed section 106ZQ or the Minister has approved the use of that word or those words for those purposes.

 

Proposed subsection 106ZO(2) specifies that the offence in proposed subsection 106ZO(1) attracts strict liability in respect of the physical elements of circumstance in proposed subparagraph (1)(b)(ii) that the power of approval and accreditation respectively is under proposed section 106ZQ.  Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant in relation to that physical element.  A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code .  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).

 

 

Part 5C.3 - Laws regulating the use of company names and business names in external territories

 

ps106ZP  Law in force in external territory not to allow company or business names using the word “university”

 

Proposed section 106ZP has the effect of providing that, notwithstanding any provision of a law in force in an external territory that regulates the use of company or business names in that territory, the registration or authorisation of the use of any company name 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.

 

 

Part 5C.4 - Accreditation procedures for persons proposing to provide higher education in external territories

 

 

ps106ZQ  Minister to act as accrediting authority in relation to some persons providing higher education in external territories

 

Proposed subsection 106ZQ(1) has the effect of providing that, if a person is not a listed self-accrediting entity and wishes to operate in an external territory as a university or other provider of courses leading to higher education awards, the person must apply in writing to the Minister either for approval of the person as a self-accrediting entity in relation to that territory or for accreditation in relation to that territory of each course it proposes to offer.

 

Proposed subsection 106ZQ(2) provides that the regulations may prescribe fees to be paid in respect of applications made under proposed subsection 106ZQ(1) and for that purpose may take into account costs incurred in making a decision on such an application.  The regulations may also set out the manner and times of payment of fees.

 

Proposed subsection 106ZQ(3) goes on to provide that a person making an application under proposed subsection 106ZQ(1) must pay such fees as are provided for in the regulations at such times as the regulations provide.

 

Proposed subsection 106ZQ(4) has the effect of providing that, if a person applies for approval as a self-accrediting entity in relation to an external territory, the Minister may determine the person to be such a self-accrediting entity in relation to that territory if the Minister is satisfied, following an assessment made having regard to the National Protocols, that it is appropriate that the person be empowered to issue its own qualifications.  Proposed subsection 106ZQ(6) has the effect of providing that an approval of a person as a self-accrediting entity by the Minister remains in force for the period that the Minister determines and is subject to any conditions that the Minister imposes.

 

Proposed subsection 106ZQ(5) has the effect of providing that, if a person applies for accreditation in relation to an external territory of a particular course as a course leading to a higher education award, the Minister may accredit that course in relation to that territory if the Minister is satisfied, following an assessment made having regard to the National Protocols, that the course and the way of delivering it are appropriate to the award.  Proposed subsection 106ZQ(7) has the effect of providing that an accreditation of a particular course by the Minister remains in force for the period that the Minister determines and is subject to any conditions that the Minister imposes.

 

Proposed subsection 106ZQ(8) has the effect of providing that the Minister may amend or revoke an approval of a person as a self-accrediting entity in relation to an external territory under proposed section 106ZQ at any time if the Minister is satisfied that the person has breached a condition to which the person's approval is subject or, following a reassessment of the person's approval made having regard to the National Protocols, that the circumstances of the person have so changed that if the person were to apply for approval as a self-accrediting entity in relation to that territory at that time the Minister would refuse the application.

 

Proposed subsection 106ZQ(9) has the effect of providing that the Minister may amend or revoke an accreditation of a course under proposed section 106ZQ in relation to an external territory as a course leading to a higher education award at any time if the Minister is satisfied that the person offering the course has breached a condition to which the course accreditation is subject or, following a reassessment of the course accreditation made having regard to the National Protocols, that the content or manner of providing the course have so changed that if the person providing the course were to apply for accreditation of the course in relation to that territory at that time the Minister would refuse the application.

 

Proposed subsection 106ZQ(10) provides that, for the purposes of proposed section 106ZQ, the term person does not include a natural person.  This is intended to exclude natural persons from applying for approval as a self-accrediting entity or for accreditation of a particular course as a course leading to a higher education award, in relation to an external territory.

 

 

Item 106ZR  Application to Administrative Appeals Tribunal for review of decisions under section 106ZQ

 

Proposed section 106ZR has the effect of providing for application to be made to the Administrative Appeals Tribunal for review of a decision by the Minister under proposed subsections 106ZQ(4), (5), (8) or (9).  The application for review of a decision must be made within 28 days after notice of the decision is given.