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Tertiary Education Quality and Standards Agency Amendment Bill 2014

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2013-2014

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

TERTIARY EDUCATION QUALITY AND STANDARDS AGENCY AMENDMENT BILL 2014

 

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Education, the Hon Christopher Pyne MP)



TERTIARY EDUCATION QUALITY AND STANDARDS AGENCY AMENDMENT BILL 2014

 

OUTLINE

 

The purpose of the Tertiary Education Quality and Standards Agency Amendment Bill 2014 (the Bill) is to amend the Tertiary Education Quality and Standards Agency Act 2011 (TEQSA Act) to give effect to the Government’s decision to implement recommendations arising from the independent Review of Higher Education Regulation (the Review).

 

The measures in the Bill will increase the efficiency of the Tertiary Education Quality and Standards Agency (TEQSA) and reduce the regulatory burden on higher education institutions. The Bill will support TEQSA to focus on its core functions and the development of more efficient processes around these functions.

 

Specifically, the amendments to the TEQSA Act will refine the agency’s functions to allow TEQSA to focus on its core activities of provider registration and course accreditation. To improve TEQSA’s ability to manage the registration and accreditation processes, the measures will also enable TEQSA to extend the period of registration or accreditation on its own initiative. 

 

The amendments will enhance TEQSA’s delegation powers to enable it to implement more efficient decision making processes and provide applicants with access to internal review of decisions, rather than commencing proceedings in the Administrative Appeals Tribunal.

 

The measures will improve the Minister’s ability to give a general direction to TEQSA in relation to the performance of its functions and the exercise of its powers and allow for a specific direction to be made in regard to the fees that TEQSA charges for its services. In addition, TEQSA must seek the Minister’s approval before making changes to the fees it charges higher education institutions. As the Act currently stands, the Minister has no oversight on the fees that may be charged, and this amendment will bring the Act more in line with other regulatory agencies.

 

In line with TEQSA’s refined functions and increased efficiency, the amendments provide the Minister with greater flexibility in determining the most appropriate organisational arrangements for TEQSA by removing the requirements to appoint a specific number of Commissioners, to appoint full-time and part-time Commissioners and will separate the roles and responsibilities of the Chief Commissioner and Chief Executive Officer. The Bill also provides that all Commissioners will cease to hold office under the TEQSA Act at a fixed time. Transitional arrangements will be put into place to ensure that this would not occur until 21 days after the Bill receives Royal Assent for the Chief Commissioner and three months after Royal Assent for other Commissioners.  During the transitional period, a selection process will be conducted and the positions filled in line with the amended TEQSA Act. All current Commissioners (including the Chief Commissioner) may reapply for the available positions.

 

The amendments provide for a number of technical amendments, suggested by TEQSA, to improve the efficiency of notification requirements.

 

The amendments impact directly on the functioning of TEQSA; they do not alter the substance of the TEQSA Act or increase departmental funds.

 

FINANCIAL IMPACT STATEMENT

 

The expected financial impact of amendments in the Bill will be nil to positive depending on the operational impact of the amendments.



 

Statement of Compatibility with Human Rights

 

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

 

TERTIARY EDUCATION QUALITY AND STANDARDS AGENCY AMENDMENT BILL 2014

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

 

The purpose of the Bill is to amend the Tertiary Education Quality and Standards Agency Act 2011 (TEQSA Act) to give effect to the Government’s decision to implement recommendations arising from the independent Review of Higher Education Regulation (the Review). The previous Government commissioned the Review in May 2013 in response to concerns raised by higher education providers about the level of regulatory burden they face. The Review made eleven recommendations to reduce red tape. On 23 October 2013, the Government committed to implement the eleven recommendations commencing with the Ministerial Direction given to the Chief Executive Officer (CEO) of the Tertiary Education Quality and Standards Agency (TEQSA). That Direction requires the CEO to improve the focus and timeliness of TEQSA’s regulatory activities and to advance appropriate deregulation for the sector.  The TEQSA Amendment Bill is an important part of a wider action plan to implement the recommendations of the Review.

 

The measures in the Bill will increase the efficiency of TEQSA and reduce the regulatory burden on higher education institutions.

 

The Bill includes measures to enable TEQSA to focus on its core functions of provider registration and course accreditation and the development of more efficient processes around these functions. As such, the current quality assessment function of TEQSA will be removed (following the Review’s finding that providers already have robust internal processes to ensure quality). TEQSA’s ability to delegate its functions and powers to appropriate TEQSA staff will be enhanced, enabling the Agency to implement more efficient decision making processes. Further, this will provide applicants with access to internal review of decisions. Where decisions have been made at the highest levels within TEQSA, applicants cannot access internal review mechanisms, so if they wish to appeal a decision they must commence proceedings in the Administrative Appeals Tribunal. The Bill also amends the TEQSA Act to give TEQSA the power to extend the period of a higher education provider’s registration or accreditation.

 

In line with TEQSA’s refined functions and increased efficiency, the measures in the Bill will provide the Minister with greater flexibility to determine the number of Commissioners to be appointed. It will remove the requirement to appoint a specific number of part-time and full-time Commissioners and will separate the roles and responsibilities of the Chief Commissioner and the Chief Executive Officer (CEO). The amendments provide that the appointment of Commissioners will cease at a fixed time. Transitional arrangements will be put in place to ensure that this would not occur until 21 days after the Bill receives Royal Assent for the Chief Commissioner, and 3 months after Royal Assent for other Commissioners. Commissioners will be appointed under the amended Act, and the amendments do not prevent the current Chief Commissioner or other Commissioners from applying for these positions.

 

The Bill also amends the scope of the directions that the Minister may give to TEQSA such that the Minister would be able to give directions in relation to the performance of TEQSA’s functions and the exercise of its powers.  However the directions must be of a general nature only. In addition, Part 8 of the Bill would amend the TEQSA Act to provide that TEQSA must not make a legislative instrument determining the fees that it charges unless the Minister has given written approval. 

 

The Bill makes other minor and technical amendments to the TEQSA Act to increase the efficiency of TEQSA. These amendments do not alter the substance of the TEQSA Act or increase departmental funds.

Human Rights Implications

 

Right to work and rights at work

 

The Bill engages the right to work and rights at work contained in articles 6(1) and 7 of the International Covenant on Economic, Social and Culture Rights . Article 6(1) recognises that the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and that states will take appropriate steps to safeguard this right. Article 7 recognises the right of everyone to the enjoyment of just and favourable conditions of work.

 

The Bill gives effect to the Government’s decision to implement recommendations from the Review. In line with the Review’s recommendations, the Bill refines TEQSA’s functions to enable the agency to focus on its core functions and the development of more efficient processes around these functions. In recognition of TEQSA’s refined functions and increased efficiency, the Bill provides the Minister with the flexibility to appoint fewer TEQSA Commissioners (Schedule 1, Part 4).  The Bill also provides that all Commissioners will cease to hold office under the TEQSA Act at a fixed time. Transitional arrangements will ensure that the Chief Commissioners will not cease to hold office until 21 days after the Bill receives Royal Assent, and 3 months after Royal Assent for other Commissioners. During the transitional period, a selection process will be conducted and the positions filled in line with the amended TEQSA Act. All current Commissioners may reapply for the available positions.

 

To the extent that the measure to terminate the appointment of Commissioners and the Chief Commissioner places a limitation on those persons right to work and rights at work, that limitation is justifiable.  The amendment seeks to achieve greater flexibility in determining the organisational structure of TEQSA and enabling greater efficiencies, supporting the Government’s commitment to reduce regulation and enable higher education providers to focus less on compliance activities and more on their core work of delivering high quality teaching and research, to the benefit of the community and the economy. Because the amendments will result in changed roles for the Chief Commissioner and Commissioners, their appointments under the current Act will be terminated. All current Commissioners have the ability to reapply for positions in line with the amended Act.  If they are not reappointed, they will be offered suitable alternative employment or financial compensation, consistent with the Remuneration Tribunal’s determination. The limitation applies to a small number of people, balanced against the broader benefits to the community and society to be achieved by improved quality assurance arrangements in higher education. 

 

To the extent that the right to work and rights at work are limited, the limitation is justifiable, reasonable and proportionate. This Bill is compatible with the right to work.

 

Right to Education

 

The Bill also engages the right to education which is set out in Article 13 of the International Covenant on Economic, Social and Cultural Rights. The right to education recognises the important personal, societal, economic and intellectual benefits of education. It requires education be available, safe, and appropriately resourced, dependent on the needs of the child.

 

The Bill gives effect to the Government’s decision to implement recommendations from the August 2013 independent Review of Higher Education Regulation (the Review). In line with the Review’s recommendations, the Bill refines TEQSA’s functions to enable the agency to focus on its core functions and the development of more efficient processes around these functions.  The highest standards of quality will continue to be upheld. The amendments will provide for more efficient and targeted activity by TEQSA which will ensure that higher education institutions have more time and resources to devote to doing what they do best - delivering the highest quality teaching, learning and research. This will benefit Australian and international students as well as the broader Australian community and economy.

 

This Bill is compatible with the right to education.

 

Conclusion

 

This Bill is compatible with human rights.



TERTIARY EDUCATION QUALITY AND STANDARDS AGENCY AMENDMENT BILL 2014

 

NOTES ON CLAUSES

 

Clause 1 - Short title

 

This clause provides that the name of the Act, when enacted, is the Tertiary Education Quality and Standards Agency Amendment Act 2014 .

 

Clause 2 - Commencement

 

This clause provides that each provision of this Act which is listed in column 1 of the table in this clause will commence or be taken to have commenced in accordance with column 2 of the table.

 

Clause 3 - Schedule(s)

 

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

 

 

 

For ease of description, this Explanatory Memorandum uses the following abbreviations:

 

‘ESOS Act’ means the Education Services for Overseas Students Act 2000

 

‘NVETR Act’ means the National Vocational Education and Training Regulator Act 2011

 

‘TEQSA Act’ means the Tertiary Education Quality and Standards Agency Act 2011

 

‘TEQSA’ means the Tertiary Education Quality and Standards Agency

 

‘The Review’ means the 2013 Review of Higher Education Regulation conducted by Professor Kwong Lee Dow AO and Professor Valerie Braithwaite

 

 

 



 

Schedule 1 - Amendments

 

Part 1        Quality assessments

 

 

 

Summary

 

TEQSA has a range of functions and powers as set out in section 134 of the TEQSA Act, including conducting quality assessments of higher education providers in order to investigate whether the TEQSA Act or its associated provisions have been, or are being, complied with (subparagraph 134(1)(c)(i)). In addition, section 60 of the TEQSA Act enables TEQSA to conduct quality assessments (including thematic assessments).

The Review presented strong evidence to support the removal of TEQSA’s quality assessment function. It found that most higher education providers already have robust internal processes, as required by the existing standards, to assure quality. As such, it would be more effective to allow providers to manage their own quality assurance and for TEQSA to focus on the timely delivery of its core regulatory activities of registering providers and accrediting courses.

Part 1 amends the TEQSA Act to remove the quality assessment function, thereby supporting TEQSA to focus on the core regulatory activities of registering providers and accrediting courses.

Detailed explanation

 

 

Item 1

 

Item 1 will remove the definition of quality assessment from the definitions in section 5 of the TEQSA Act.

 

Item 2

 

Item 2 will repeal section 60 of the TEQSA Act, which enables TEQSA to carry out quality assessments (including thematic assessments).

 

 

 

 

Items 3 and 4

 

Items 3 and 4 will make consequential amendments to subsections 62(1) and (4) of the TEQSA Act to remove references to section 60, which is to be repealed.

 

Item 5

 

Subparagraph 134(1)(c)(i) of the TEQSA Act provides that TEQSA has the function of investigating whether the Act or its associated provisions have been, or are being, complied with by conducting compliance assessments and quality assessments.

 

Item 5 will amend subparagraph 134(1)(c)(i) to remove reference to quality assessments.

Part 2        Delegations

 

 

Summary

 

Subsection 199(1) of the TEQSA Act provides that TEQSA may delegate any or all of its functions and powers to a Commissioner, or an Executive Level 1 or higher (or equivalent classification) TEQSA staff member, or a Commonwealth authority, or a person holding an office or appointment under a Commonwealth law.

 

Subsection 199(2) provides that the delegation power under subsection 199(1) does not apply to certain decision making powers, including powers concerning: initial registration applications; renewal of registration applications; conditions on registration; applications for self-accrediting authority; changes of provider category; the production of information; referring potential offences to the Director of Public Prosecutions; and applying for a civil penalty order.

 

Despite subsection 199(2), section 200 provides that the following powers are delegable to a single commissioner: decisions on initial accreditation; decisions to impose, vary or revoke a condition imposed on an accreditation; and decisions on an application for renewal of accreditation.

 

Since commencing its regulatory functions in January 2012, TEQSA has developed a significant backlog in provider re-registration applications and course accreditation and re-accreditation applications. This backlog has been caused, in part, through TEQSA’s inability to delegate decision making responsibilities to appropriate TEQSA staff.

 

The TEQSA Act requires TEQSA to establish and maintain a national register of higher education providers, which is publicly available. The national register is the authoritative source of information on the status of registered higher education providers in Australia. Providers being assessed for re-registration are listed as ‘registration pending’ on the national register. The timely delivery of provider re-registration applications is crucial to give assurance to students who are considering enrolling or are currently enrolled with providers that are ‘pending registration’.

 

TEQSA also has a significant backlog of new course accreditation and renewal of course accreditation applications. To ensure Australia’s higher education sector remains competitive in a dynamic, global environment it is vital that providers can develop and offer courses in a timely fashion. Unnecessary delays in course accreditation applications may impact on the sector’s competitiveness and may discourage innovation.

 

The restriction on the delegation of a number of powers has contributed to delays in finalising provider applications. Where decisions have been made at the highest levels within TEQSA, applicants are prevented from accessing TEQSA’s internal review mechanisms. As a result, applicants seeking to appeal a TEQSA decision must request review through the Administrative Appeals Tribunal.   The amendments to be made by Part 2 of Schedule 1 would allow decisions to be delegated to a single Commissioner.  This would enable swifter decision-making and provide applicants with greatly improved access to internal review of TEQSA’s reviewable decisions.

 

Detailed explanation

 

 

Item 6, 7, 8, 9, 10 and 11

 

Items 6 repeals and substitutes a new heading for subsection 199 of the TEQSA Act. (Delegation by TEQSA, instead of Delegation-general).

 

Item 7 will repeal and substitute subsection 199(2) of the TEQSA Act. Subsection 199(1) of the TEQSA Act is a delegation provision which sets out the persons to whom TEQSA may, by writing, delegate any or all of TEQSA’s functions and powers. New subsection 199(2) will provide that subsection 199(1) will not apply to a power to make, vary or revoke a legislative instrument.

 

Item 8 will repeal section 200 of the TEQSA Act, which provides that certain powers of TEQSA relating to decisions on initial accreditation, renewal of accreditation and imposing conditions on accreditation are only delegable to Commissioners.

 

The changes to the delegation provisions will enable TEQSA to more efficiently delegate functions and powers and is expected to speed up TEQSA’s decision-making processes for the benefit of providers.

 

Items 9 and 10 make consequential amendments to section 201 and the note to subsection 202(1) to remove reference to section 200, which is to be repealed.

 

Item 11

 

Item 11 is a transitional provision, the effect of which is to deem that any delegations to a Commissioner that were in force immediately before the commencement of Item 11 (ie the day the Act receives the Royal Assent) under section 200 of the TEQSA Act, are to be taken as delegations made under new subsection 199(1) after the commencement of  Item 11 (ie the day after the Act receives the Royal Assent).

 

Item 12

 

Item 12 is also a transitional provision, the effect of which is to deem that any direction to a delegate (where the delegate is a Commissioner), in force under section 201 of the TEQSA Act immediately before the commencement of Item 12 (ie the day the Act receives the Royal Assent) which relates to a delegation under section 200 of the TEQSA Act will have the effect, following commencement of this Item (ie the day after the Act receives the Royal Assent) as if the delegation related to a delegation under new subsection 199(1).

Part 3        Period of registration or accreditation

 

 

 

Summary

 

Often a provider’s registration may expire earlier or later than a course accreditation expires. The TEQSA Act currently does not contain any provisions allowing TEQSA to extend an existing registration or accreditation on its own initiative.

Part 3 would amend the TEQSA Act to give TEQSA the power to extend the period of registration or accreditation, thus enabling TEQSA to manage the registration and accreditation processes more flexibly.

 

Detailed explanation

 

Item 13

 

Item 13 will insert a note at the end of subsection 21(6) to indicate that the period of registration granted in accordance with subsection 21(6) may be extended in line with new section 37A (extension of registration period).

 

Items 14, 15, 16 and 17

 

Item 17 will insert a Division 3A into Part 3 of the TEQSA Act, comprising new section 37A. This new section will enable TEQSA to extend a registered higher education provider’s registration and provides that the extended period of registration may exceed 7 years subject to other requirements under the TEQSA Act being met.

 

Paragraph 23(1)(b) provides that an applicant’s registration ends at the end of a period specified in notices given under either section 22 or 37. Subsection 23(2) provides that paragraph 23(1)(b) has effect subject to a number of other provisions concerning the renewal of registration, withdrawing registration, cancelling registration and administrative sanctions. Item 14 makes consequential amendments to subsection 23(2) to include reference to new section 37A.

 

Subsection 36(4) provides that in deciding whether to grant an application for a registered higher education provider to have its registration renewed, TEQSA must determine the period for which the provider’s registration is renewed and that period must not exceed 7 years. Items 15 and 16 make consequential amendments to the note to this subsection to indicate that the period of registration may be extended in accordance with new section 37A.

 

 

 

Items 18, 19 and 20

 

Item 20 will insert a Division 5 into Part 4 of the TEQSA Act, comprising of a new section 57A. This new section will enable TEQSA to extend the period of accreditation of a course, which period may exceed 7 years, subject to conditions set out in the TEQSA Act.

 

Paragraph 51(1)(b) provides that the accreditation of a course of study ends at the end of a period specified in notices given under either section 50 or 57. Subsection 51(2) provides that paragraph 51(1)(b) has effect subject to the provider continuing to be registered and accredited. Item 19 makes a consequential amendment to paragraph 51(2)(b) to also include reference to new section 57A.

 

Item 18 makes consequential amendments to subsection 49(6) of the TEQSA Act. Subsection 49(6) concerns the period for which TEQSA may accredit a course of study in relation to a higher education provider. Item 18 will insert a note after this subsection to indicate that the period of accreditation may be extended in accordance with new section 57A.

 

Items 21 and 22

 

Items 21 and 22 amend the table of reviewable decisions set out in section 183 of the TEQSA Act. Section 183 is amended so that decisions made under section 37A to extend (or not extend) the period of a registered higher education provider’s registration and a decision under section 57A to extend (or not extend) the period of the accreditation of course of study, will be reviewable decisions for the purposes of the TEQSA Act.

 

 

 

 



 

Part 4        Commissioners

 

 

 

Summary

 

In accordance with recommendations made by the Review, Part 4 would amend the TEQSA Act to provide the Minister with the flexibility to reduce the number of TEQSA’s Commissioners. Part 4 would also remove the requirement to appoint a specific number of part-time and full-time Commissioners. This would provide the Minister greater flexibility in determining the constitution of TEQSA.

 

Detailed explanation

 

 

Items 25, 26 and 27

 

Item 25 will amend paragraph 133(b) so that TEQSA consists of a Chief Commissioner and at least one, but not more than 4, other Commissioners.  Currently the constitution of TEQSA is a Chief Commissioner and 4 other Commissioners.

 

Items 26 and 27 will make consequential amendments to the notes following section 133 by repealing Note 2 (which provides that the Chief Commissioner and 2 out of 4 of the other Commissioners are full-time, with the others being part-time) and deleting the numbering for Note 1.

 

Items 23, 24, 28 and 29

 

The effect of the amendment to be made by Item 28 will be to amend section 138 of the TEQSA Act to provide that each Commissioner (including the Chief Commissioner) is to be appointed by the Minister by written instrument and may hold office on either a full-time, or a part-time basis. Item 29 removes the reference to “the Chief Commissioner, or as a Commissioner” and substitutes this with “a Commissioner”, noting that the definition of “Commissioner” includes the “Chief Commissioner”. Item 23 will make a consequential amendment to the definition of full-time Commissioner in section 5 to remove the reference to the Chief Commissioner being a full-time appointment. Item 24 makes a further consequential amendment to the definition of part-time Commissioner.

 

Items 30 and 31

 

Item 31 will insert a new subsection 141(4) to provide that, if the Chief Commissioner is appointed on a part-time basis, the Minister may approve leave for the Chief Commissioner on such terms and conditions that the Minister determines.

 

Such a determination would not be a legislative instrument by virtue of Item 11 of Part 1 of Schedule 1 of the Legislative Instruments Regulations 2004 .

 

Item 30 amends subsection 141(3) by inserting the words “other than the Chief Commissioner” after the words “part time Commissioner”. This is to ensure that the new subsection 141(4) (and not subsection 141(3)) would be the only provision that would apply to granting leave of absence for a part-time Commissioner who is a Chief Commissioner.

 

Item 32 and 33

 

Many Commonwealth Acts contain provisions that provide for termination of appointment for office-holders on grounds relating to physical or mental incapacity. Many of these provisions use the form “The [appointer] may terminate the appointment of [the office-holder] for physical or mental incapacity” as is the case in section 146. Current Commonwealth drafting practice in relation to termination of appointment  for office-holders on grounds relating to physical or mental incapacity is to use the form, “The [appointer] may terminate the appointment of [the office-holder] if [the office-holder] is unable to perform the duties of his or her office because of physical or mental incapacity”. Item 32 will update section 146 of the TEQSA Act to accord with current Commonwealth drafting practice. The grounds of misbehaviour will be included in a separate paragraph.

 

Many Commonwealth Acts contain provisions that provide for termination of appointment for office-holders on grounds relating to bankruptcy. Many of these provisions refer to a person applying to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounding with his or her creditors or making an assignment of his or her remuneration for the benefit of his or her creditors. To accord with the modern law of bankruptcy, current Commonwealth drafting practice is to use the form: a person taking steps to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounding with one or more of his or her creditors or making an assignment of his or her remuneration for the benefit of one or more of his or her creditors. Item 33 will update section 146 of the TEQSA Act to accord with current Commonwealth drafting practice.

 

Item 34

 

Subsection 149(2) provides that, if the Chief Commissioner is not present at a TEQSA meeting of Commissioners, a full-time Commissioner nominated by the Chief Commissioner and present at the meeting is to preside. Item 34 will amend subsection 149(2) to remove reference to the Commissioner to be nominated needing to be full-time.

 

Item 35

 

Subsection 149(3) provides that the required quorum for a meeting of TEQSA is 3 Commissioners. Item 35 will reduce this number to 2 Commissioners.

 

 

 

Item 36

 

Item 36 is a transitional provision which applies to persons holding office as a Commissioner, other than the Chief Commissioner, immediately before commencement of this item. It provides that the person’s appointment as a Commissioner is terminated upon commencement of this item (ie: the day after the end of the period of 3 months beginning on the day this Act receives the Royal Assent) and expressly provides that the termination does not prevent the person from being reappointed as a Commissioner.

 

Please note Item 45 of the Bill contains a transitional provision relating to the termination of the Chief Commissioner’s appointment.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



 

Part 5        Chief Executive Officer etc.

 

 

 

Summary

 

Currently, subsection 153(2) of the TEQSA Act provides that the Chief Commissioner of TEQSA is also its Chief Executive Officer. The primary effect of the amendments contained in Part 5 would be to amend the TEQSA Act to provide for a separation of these two roles, which would allow the Chief Executive Officer to focus on management and administration and the Chief Commissioner to focus on delivering timely regulatory decisions. The amendments contained in Part 5 also provide for transitional arrangements for a person holding office as the Chief Commissioner immediately before the commencement of this part.

 

Detailed explanation

 

Item 38

 

Part 5 will have the effect of separating Division 4 of Part 8 of the TEQSA Act into subdivisions. Subdivision A (Office and functions of the Chief Executive Officer) will be comprised of sections 153 and 154. Item 38 inserts the heading for Subdivision A.

 

Items 37, 39 and 40

 

Subsection 153(2) of the TEQSA Act provides that the Chief Commissioner of TEQSA is also its Chief Executive Officer. Item 40 will repeal subsection 153(2) to reflect that these two roles will be separated. Item 39 is a consequential amendment to renumber section 153 following the amendment made by Item 40.

 

Item 37 is a consequential amendment following the amendment made by Item 40. Item 37 will remove the note to subsection 145(2) of the TEQSA Act which refers to the Chief Commissioner also being the Chief Executive Officer.

Item 41

Item 41 will insert new Subdivisions B, C, and D into Division 4 of Part 8 of the TEQSA Act. It will also insert a heading for Subdivision E, which will be comprised of section 155.

Subdivision B—Appointment of the Chief Executive Officer

 

Section 154A  - Appointment of the Chief Executive Officer  

 

New section 154A will provide for the appointment of the Chief Executive Officer of TEQSA. The Minister will appoint the Chief Executive Officer by written instrument.

The Minister can only appoint a person as the Chief Executive Officer if the Minister is satisfied that the person has appropriate qualifications, knowledge or experience. The Chief Executive Officer will hold office on either a full-time or part-time basis.

 

Section 154B - Period of appointment for the Chief Executive Officer

 

New section 154B will provide that the Chief Executive Officer will hold office for the period specified in the instrument of appointment. This period must not exceed 5 years.

 

Section 154C - Acting appointments

 

New section 154C will enable the Minister to appoint a person to act as the Chief Executive Officer of TEQSA as follows:

 

·          where there is a vacancy in the position (even if an appointment has not previously been made); or

·          during any or all periods when the Chief Executive Officer is absent from duty or from Australia, or is unable (for any reason) to perform the duties of the position.

 

The Minister can only appoint a person to act as the Chief Executive Officer if the Minister is satisfied that the person has appropriate qualifications, knowledge or experience.  

 

A note draws the reader’s attention to sections 33AB and 33A of the Acts Interpretation Act 1901 which concern rules about appointments.

 

Subdivision C Terms and conditions for the Chief Executive Officer

 

Section 154D - Remuneration and allowances

 

New section 154D will prescribe how the remuneration and allowances of the Chief Executive Officer are to be determined. The Chief Executive Officer is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the Chief Executive Officer is to be paid the remuneration that is determined, in writing, by the Minister. The Chief Executive Officer is to be paid the allowances that are determined, in writing, by the Minister. Section 154D will have effect subject to the Remuneration Tribunal Act 1973 .

 

Section 154E - Leave of absence

 

New section 154E will prescribe how the Chief Executive Officer’s leave entitlements are to be determined. The Chief Executive Officer’s recreational leave entitlements will be determined by the Remuneration Tribunal. If no determination of those entitlements by the Tribunal is in operation, the Chief Executive Officer will have the recreational leave entitlements that are determined, in writing, by the Minister. The Minister will be able to grant the Chief Executive Officer leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.

 

Section 154F - Outside employment

 

New section 154F will prohibit the Chief Executive Officer from engaging in paid employment outside the duties of his or her office without the Minister’s approval.

 

Section 154G - Disclosure of interests to the Minister

 

New section 154G will require the Chief Executive Officer to disclose all forms of interests (pecuniary or otherwise) which she or he holds or acquires that conflict or could conflict with the proper performance of the Chief Executive Officer’s functions. The disclosure must be made by written notice to the Minister.

 

Section 154H - Resignation

 

New section 154H will allow the Chief Executive Officer to resign from his or her appointment by giving the Minister a written resignation. The resignation will take effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.

 

Section 154J - Termination of appointment

 

New section 154J will set out the grounds upon which the Minister may terminate the appointment of the Chief Executive Officer, these being:

·          for misbehaviour; or

·          if the Chief Executive Officer is unable to perform the duties of his or her office because of physical or mental incapacity; or

·          if the Chief Executive Officer becomes bankrupt; or

·          if the Chief Executive Officer takes steps to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

·          if the Chief Executive Officer compounds with his or her creditors; or

·          if the Chief Executive Officer makes an assignment of his or her remuneration for the benefit of his or her creditors; or

·          if the Chief Executive officer is absent, except on leave of absence, for 14 consecutive days or for 30 days in any 12 months; or

·          if the Chief Executive Officer engages in paid employment contrary to section 154F; or

·          if the Chief Executive Officer fails, without reasonable excuse, to disclose all interests to the Minister in accordance with new section 154G.

 

Section 154K - Other terms and conditions

 

New section 154K will provide that the Chief Executive Officer holds office on the terms and conditions (if any) in relation to matters not covered by the TEQSA Act that are determined by the Minister.

 

Subdivision D—Delegation

 

Section 154L - Delegation by the Chief Executive Officer

New section 154L will allow the Chief Executive Officer to, by writing, delegate any or all of his or her functions and powers under the TEQSA Act to a member of the staff of TEQSA. The delegate will need to hold the classification of APS Executive Level 1 or higher, or an equivalent classification. A delegate must comply with any written directions of the Chief Executive Officer.

 

Subdivision E—Directions by Minister

Item 42 

Currently subsection 155(1) of the TEQSA Act empowers the Minister to give directions to the Chief Executive Officer of TEQSA about the performance of his or her functions. The directions must be given by legislative instrument. Item 42 will insert the words “and the exercise of his or her powers” at the end of subsection 155(1) (before the note). This amendment will expand the Minister’s direction giving powers under subsection 155(1) so that the Minister may also give directions to the Chief Executive Officer about the exercise of his or her powers.

Item 43

Item 43 will insert a new Subdivision F (Other matters) at the end of Division 4 of Part 8 of the TEQSA Act. Subdivision F will include new section 155A. For the avoidance of doubt, new section 155A will clarify that the Chief Executive Officer of TEQSA is not subject to direction by TEQSA in relation to his or her performance of functions, or exercise of powers, under the Financial Management and Accountability Act 1997 or the Public Service Act 1999 , in relation to TEQSA.

Item 44

Item 44 is a transitional provision. It provides that amendments of the TEQSA Act made by Part 5 of this Bill do not affect the continuity of a direction that was given by the Minister to the Chief Executive Officer of TEQSA under subsection 155(1) of the TEQSA Act that was in force immediately before the commencement of this Item.

 

Item 45

Item 45 is a transitional provision which applies to the person holding office as the Chief Commissioner, immediately before commencement of this Item. It provides that the person’s appointment as a Commissioner is terminated upon commencement of this Item (ie: the day after the end of the period of 21 days beginning on the day the Act receives the Royal Assent) and provides that the termination does not prevent the person from being reappointed as a Commissioner.

Part 6        Notification of decisions etc.

 

 

 

Summary

 

Part 6 would give effect to a number of minor technical amendments suggested by TEQSA - primarily related to notifying providers of decisions.

 

Detailed explanation

 

Items 46 and 47

 

Section 22 of the TEQSA Act requires TEQSA to notify applicants about decisions made about registration. Where TEQSA grants an application, subparagraph 22(b)(i) requires TEQSA to notify the applicant in writing about the provider category in which the applicant is registered, as well as the reasons for the decision about the category.

 

Item 46 would amend subparagraph 22(b)(i) to remove the requirement for TEQSA to give reasons. Item 47 inserts a new subparagraph 22(b)(ia) which requires TEQSA to give reasons where the provider category granted is not the category applied for under subsection 18(1). The net effect of this is that TEQSA does not need to provide reasons where it approves an application for a particular provider category.

 

Items 48 and 49

 

Section 34 of the TEQSA Act requires TEQSA to notify a provider when it decides to impose, vary or revoke a condition on the provider’s registration. Item 49 inserts a new subsection 34(2) which provides that TEQSA does not need to give a provider reasons for its decision to vary or revoke a condition in circumstances where the variation or revocation is the outcome that was being sought by the provider in its application. Item 48 is a consequential renumbering amendment for the purposes of Item 49.

 

Item 50

 

Item 50 inserts a new section 101A which requires TEQSA to give a provider a written notification within 30 days of a decision to impose a sanction under sections 99, 100 or 101 (including reasons for the decision). This amendment is consistent with other provisions of the TEQSA Act requiring notification and reasons for decisions (eg. sections 22, 34, 37 and 40).

 

 

 

Items 51, 52 and 53

 

Items 51, 52 and 53 are application provisions which provide that the amendments in Part 5 to sections 22, 34 and 101A will only apply to TEQSA decisions made after the commencement of Items 51, 52 and 53.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Part 7    Directions to TEQSA

 

 

 

Summary

 

Part 7 would amend the scope of the directions that the Minister may give to TEQSA such that the directions can now be given to TEQSA in relation to the performance of TEQSA’s functions and the exercise of its powers. However, the directions given can be of a general nature only.

 

Detailed explanation

 

Item 54 amends subsection 136(1) and Item 55 repeals and substitutes subsection 136(2) of the TEQSA Act. These provisions concern the Minister’s power to give directions to TEQSA.

 

Currently, the Minister may, by legislative instrument, give a direction to TEQSA if the Minister considers that the direction is necessary to protect the integrity of the higher education sector. Item 54 will amend that scope so that the Minister may provide directions to TEQSA in relation to the performance of its functions and the exercise of its powers. This amendment broadens the scope and reduces the ambiguity of the Minister’s power to give direction to TEQSA.

 

Item 55 repeals subsection 136(2) to provide that directions given under new subsection 136(1) must be general in nature only (ie the Minister cannot give directions on specific matters). New section 136(2A) is also inserted by this Item to provide that the general direction given in accordance with subsection 136(2) does not apply to a direction that relates to the power conferred by subsection 158(1) which confers the power to determine fees.

 

Item 56 is a transitional provision which provides that where a direction was given under subsection 136(1) of the TEQSA Act and was in force immediately before the commencement of this item, the amendments made by this Part 7 do not affect the continuity of the direction which has already been given.

 

 

 

 

 

 

 

Part 8        Fees

 

 

 

Summary

 

Currently TEQSA may, by legislative instrument, determine the fees that it charges for things done in the performance of its functions, including determining the way in which a fee is worked out, or other matters relating to fees including the circumstances in which they are paid in instalments, set off against another amount payable and in which they are waived. Part 8 would amend the TEQSA Act to provide that TEQSA must not make such a legislative instrument unless the Minister has given written approval. Part 8 also requires that TEQSA give the Minister such information the Minister reasonably requires to assist in making a decision to give (or not give) such approval.

 

Detailed explanation

 

Item 57 amends section 158 of the TEQSA Act which concerns fees. Under subsection 158(1), TEQSA may, by legislative instrument, determine the fees that it may charge for things done in the performance of its functions. New subsection 158(5) will provide that TEQSA must not make a legislative instrument under subsection 158(1) unless the Minister has given written approval to the making of that instrument. New subsection 158(6) provides that TEQSA must give the Minister such information as the Minister reasonably requires for the purposes of making a decision under subsection 158(5).

 

Item 58 is an application provision and provides that the amendment to section 158 of the TEQSA Act applies to instruments made after the commencement of this item.