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Tertiary Education Quality and Standards Agency (Consequential Amendments and Transitional Provisions) Bill 2011

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2010-2011

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

 

 

SENATE

 

 

 

 

 

 

 

 

TERTIARY EDUCATION QUALITY AND STANDARDS AGENCY (CONSEQUENTIAL AMENDMENTS AND TRANSITIONAL PROVISIONS) BILL 2011

 

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Tertiary Education, Skills, Jobs and Workplace Relations)

 



TERTIARY EDUCATION QUALITY AND STANDARDS AGENCY (CONSEQUENTIAL AMENDMENTS AND TRANSITIONAL PROVISIONS) BILL 2011

 

 

 

OUTLINE

 

The Tertiary Education Quality and Standards Agency (Consequential Amendments and Transitional Provisions) Bill 2011 deals with consequential and transitional matters arising from the enactment of the Tertiary Education Quality and Standards Agency Act 2011 (TEQSA Act) , and for other purposes.

 

Schedules 1 and 2 provide for amendments to other Commonwealth legislation consequential to the establishment of the Tertiary Education Quality and Standards Agency (TEQSA).

 

Amendments to the Education Services for Overseas Students Act 2000 provide for TEQSA and its staff to undertake functions relating to provider registration and monitoring.

 

Amendments to the Higher Education Support Act 2003 recognise that the TEQSA Act (once enacted) will establish new registration requirements for higher education providers and a new regulatory agency to administer those requirements.

 

TEQSA will take on a number of functions which are currently undertaken by state and territory authorities. The amendments in Schedule 3 make provisions to transition the necessary functions from the state and territory authorities to TEQSA.

 

 

 

FINANCIAL IMPACT

 

The costs associated with this Bill will be absorbed by TEQSA.

 

 



TERTIARY EDUCATION QUALITY AND STANDARDS AGENCY (CONSEQUENTIAL AMENDMENTS AND TRANSITIONAL PROVISIONS) BILL 2011

 

 

NOTES ON CLAUSES

 

 

Part 1— Preliminary

 

Clause 1 - Short title

 

Provides for the Bill, once enacted, to be cited as the Tertiary Education Quality and Standards Agency (Consequential Amendments and Transitional Provisions) Act 2011 .

 

 

Clause 2 - Commencement

 

Subclause 2(1) inserts a three column table setting out commencement information for various provisions in the Bill.  Each provision of the Bill specified in column 1 of the table commences (or is taken to have commenced) in accordance with column 2 of the table and any other statement in column 2 has effect according to its terms.

 

The table has the effect of providing for:

 

-           Table Item 1 Sections 1-3 and anything in this Bill not elsewhere covered by this table to commence on Royal Assent.

 

-           Table Item 2 Part 1 of Schedule 1 to commence immediately after the later of the commencement of Part 2 of the Tertiary Education Quality and Standards Agency Act 2011 and the commencement of item 1 of Schedule 1 of the National Vocational Education and Training Regulator (Consequential Amendments) Act 2011 - but Part 1 of Schedule 1 will not commence at all unless both Part 2 of the Tertiary Education Quality and Standards Agency Act 2011 and Item 1 of Schedule 1 to the National Vocational Education and Training Regulator (Consequential Amendments) Act 2011 commence.  

o    Part 2 of the Tertiary Education Quality and Standards Agency Act 2011 commences on the later of 1 January 2012 and the day after 7 months from when this Act receives Royal Assent

o    Item 1 of Schedule 1 of the National Vocational Education and Training Regulator (Consequential Amendments) Act 2011 commences immediately after the commencement of section 3 of the National Vocational Education and Training Regulator Act 2011.   Section 3 of the National Vocational Education and Training Regulator Act 2011 commences on a day to be fixed by proclamation - or, if this does not occur within 6 months from Royal Assent, the day after 6 months from Royal Assent.

 

-           Table Items 3 and 5 Items 15 to 24 and 26 to 39 of Schedule 1 to commence at the same time that Part 2 of the Tertiary Education Quality and Standards Agency Act 2011 commences - but if item 1 of Schedule 1 of the National Vocational Education and Training Regulator (Consequential Amendments) Act 2011 commences at or before that time, Items 15 to 24 and 26 to 39 of Schedule 1 will not commence at all.

o    Part 2 of the Tertiary Education Quality and Standards Agency Act 2011 commences on the later of 1 January 2012 and the day after 7 months from when this Act receives Royal Assent.

o    Item 1 of Schedule 1 of the National Vocational Education and Training Regulator (Consequential Amendments) Act 2011 commences immediately after the commencement of section 3 of the National Vocational Education and Training Regulator Act 2011.   Section 3 of the National Vocational Education and Training Regulator Act 2011 commences on a day to be fixed by proclamation - or, if this does not occur within 6 months from Royal Assent, the day after 6 months from Royal Assent.

 

-           Table Item 4 Item 25 of Schedule 1 to commence immediately after the later of the commencement of the provisions specified in Table Item 3 and the commencement of Schedule 1 of the Education Services for Overseas Students Legislation Amendment Act 2011 - but Item 25 of Schedule 1 will not commence at all unless both of these events occur.

o    Schedule 1 of the Education Services for Overseas Students Legislation Amendment Act 2011 commences on the later of the day after this Act receives Royal Assent and 1 January 2011.

 

-           Table Items 6 and 12 Part 3 of Schedule 1 and Schedule 3 to commence at the same time that section 3 of the Tertiary Education Quality and Standards Agency Act 2011 commences.

o    Section 3 of the Tertiary Education Quality and Standards Agency Act 2011 commences on the later of 1 July 2011 and the day after 1 month from when this Act receives Royal Assent.

 

-           Table Item 7 Part 4 of Schedule 1 to commence immediately after the commencement of Part 2 of the Tertiary Education Quality and Standards Agency Act 2011 .

o    Part 2 of the Tertiary Education Quality and Standards Agency Act 2011 commences on the later of 1 January 2012 and the day after 7 months from when this Act receives Royal Assent.

 

-           Table Item 8 Division 1 of Part 1 of Schedule 2 to commence immediately after the commencement of Part 2 of the Tertiary Education Quality and Standards Agency Act 2011 .

o    Part 2 of the Tertiary Education Quality and Standards Agency Act 2011 commences on the later of 1 January 2012 and the day after 7 months from when this Act receives Royal Assent.

-           Table Items 9 and 10 Divisions 2 and 3 of Part 1 of Schedule 2 to commence immediately after the commencement of Part 2 of the Tertiary Education Quality and Standards Agency Act 2011 .  However, Divisions 2 and 3 of Part 1 of Schedule 2 will not commence at all if Schedule 1 of the Higher Education Support Amendment (No 1) Act 2011 has not commenced by this time.

o    Part 2 of the Tertiary Education Quality and Standards Agency Act 2011 commences on the later of 1 January 2012 and the day after 7 months from when this Act receives Royal Assent.

o    Schedule 1 of the Higher Education Support Amendment (No 1) Act 2011 (if the Act is passed by Parliament and is given Royal Assent) commences the day after the Act receives Royal Assent.

 

-           Table Item 11 Part 2 of Schedule 2 to commence immediately after the later of the commencement of section 5 of the Tertiary Education Quality and Standards Agency Act 2011 and the commencement of section 3 of the National Vocational Education and Training Regulator Act 2011 - but Part 2 of Schedule 2 will not commence at all unless both section 5 of the Tertiary Education Quality and Standards Agency Act 2011 and section 3 of the National Vocational Education and Training Regulator Act 2011 commence.

o    Section 5 of the Tertiary Education Quality and Standards Agency Act 2011 commences on the later of 1 July 2011 and the day after 1 month from when this Act receives Royal Assent.

o    Section 3 of the National Vocational Education and Training Regulator Act 2011 commences on a day to be fixed by proclamation - or, if this does not occur within 6 months from Royal Assent, the day after 6 months from Royal Assent.

 

A Note makes it clear that these commencement times will not be amended by any later amendments of the Bill (once enacted).

 

Subclause 2(2) provides that column 3 of the table is for additional information which may be added to or edited in any published version of the Bill (once enacted) but that information in this column is not part of the Bill (once enacted).

 

 

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 a Schedule has effect according to its terms.

 

For ease of description, this explanatory memorandum uses the following abbreviations:

 

‘AUQA’ means the Australian Universities Quality Agency

 

‘CRICOS’ means the Commonwealth Register of Institutions and Courses for Overseas Students

 

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

 

‘HESA Act’ means the Higher Education Support Act 2003

 

‘national code’ means the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007

 

‘National VET Regulator’ or ‘NVR’ means the regulator referred to in and established by the NVETR Act

 

‘NVETR Act’ means a reference to the National Vocational Education and Training Regulator Act 2011 as referred to in the National Vocational Education and Training Regulator Bill 2010

 

‘TEQSA’ means the Tertiary Education Quality and Standards Agency referred to in and established by the TEQSA Act

 

‘TEQSA Act’ means a reference to the Tertiary Education Quality and Standards Agency Act 2011 as referred to in the Tertiary Education Quality and Standards Agency Bill 2011

 

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

 

‘VET’ means vocational education and training



Schedule 1— Education Services for Overseas Students Act 2000

 

Part 1 - Amendments after VET law commences

 

 

Note: Clause 2 (Commencement) (Table Item 2) provides for Part 1 of Schedule 1 to commence immediately after the later of the commencement of Part 2 of the Tertiary Education Quality and Standards Agency Act 2011 and the commencement of item 1 of Schedule 1 of the National Vocational Education and Training Regulator (Consequential Amendments) Act 2011 - but Part 1 of Schedule 1 will not commence at all unless both Part 2 of the Tertiary Education Quality and Standards Agency Act 2011 and Item 1 of Schedule 1 to the National Vocational Education and Training Regulator (Consequential Amendments) Act 2011 commence.

-           Part 2 of the Tertiary Education Quality and Standards Agency Act 2011 commences on the later of 1 January 2012 and the day after 7 months from when the Act receives Royal Assent

-           Item 1 of Schedule 1 of the National Vocational Education and Training Regulator (Consequential Amendments) Act 2011 commences immediately after the commencement of section 3 of the National Vocational Education and Training Regulator Act 2011.  Section 3 of the National Vocational Education and Training Regulator Act 2011 commences on a day to be fixed by proclamation - or, if this does not occur within 6 months from Royal Assent, the day after 6 months from Royal Assent.

 

The references to the ESOS Act below in Part 1 of Schedule 1 should be read on the assumption that the ESOS Act has been amended by relevant provisions of the National Vocational Education and Training Regulator (Consequential Amendments) Act 2011 and that these provisions have commenced .

 

 

 

Item 1 - Section 5 (before paragraph (a) of the definition of authorised employee)

 

Item 1 amends the definition of authorised employee in section 5 of the ESOS Act by adding in a new paragraph (aa).  The effect of this amendment is to provide that if, under subsection 170(2) of the ESOS Act, the Secretary delegates a power to TEQSA which TEQSA considers will require powers to be exercised under Part 7 of the ESOS Act (monitoring and searching providers), then an authorised employee will mean a person who is an authorised officer within the meaning of the TEQSA Act.

 

This change will ensure that authorised officers of TEQSA (see clause 94 of the TEQSA Bill) will be able to act as authorised employees under the ESOS Act where they are delegated this power by the Secretary under subsection 170(2) of the ESOS Act.

 

An authorised employee under the ESOS Act must hold a classification of APS 5 or higher and would conduct a range of monitoring and enforcement activities, but an authorised employee would not make significant regulatory decisions. Within TEQSA, authorised officers will be of the classification Executive Level 1 or higher. The higher classification of authorised officers working for TEQSA reflects the notion that monitoring and enforcement are activities that require expert skills and high level judgement. At the same time, it is likely that the only officers of TEQSA who would be at the SES level will be the Chief Commissioner and the 4 other Commissioners, of whom only 3 (including the Chief Commissioner) will be full-time. It is not practicable for the 5 commissioners (including the Chief Commissioner) to be the only personnel of TEQSA able to be authorised employees for the purposes of the ESOS Act.

 

 

Item 2 - Section 5

 

Item 2 inserts a new definition of Commonwealth designated authority into section 5 of the ESOS Act.  This defines Commonwealth designated authority for a State with respect to a provider as meaning TEQSA or the National VET Regulator.  This is to reflect that, where the Commonwealth is to be a designated authority, it could be either TEQSA or the National VET Regulator. 

 

 

Item 3 - Section 5 (definition of designated authority)

 

Item 3 is a consequential amendment to Item 4.  Item 3 repeals the definition of designated authority in section 5 of the ESOS Act.

 

 

Item 4 - After section 7

 

Item 4 inserts a new section 7A into the ESOS Act defining the meaning of designated authority .  The effect of Item 4 is to define designated authority for a State, in relation to a provider, as follows:

 

-           for a registered higher education provider within the meaning of the TEQSA Act - the designated authority is TEQSA

-           for an NVR registered training organisation within the meaning of the NVETR Act - the designated authority is the National VET Regulator

-           for a provider of an English Language Intensive Courses for Overseas Students (ELICOS) or a Foundation program - the entity that the Minister may, by legislative instrument, determine to be the designated authority for a State or Territory for the provider

-           for any other provider not covered by the above - the designated authority is the person responsible under State or Territory law for approving providers to provide courses to overseas students for the State (new subsection 7A(4) will allow the Minister, by legislative instrument, to determine that an entity is the designated authority in such circumstances).

 

In addition, where a provider falls into one or more of the above categories, Item 4 provides that the Minister may, by legislative instrument, determine that one or more entities will be the designated authority for the provider (new subsection 7A(3)).  This is to reflect that there may be more than one designated authority for a State.   

 

 

Items 5 and 6 - Paragraph 89A(1)(b) and Paragraph 89A(1A)(b)

 

Items 5 and 6 replace references to ‘the National VET Regulator’ with references to ‘a Commonwealth designated authority’ in paragraphs 89A(1)(b) and 89A(1A)(b) of the ESOS Act.  Section 89A deals with the automatic suspension of providers if they are not ‘fit and proper’.  This takes into account that a Commonwealth designated authority can be either TEQSA or the National VET Regulator (see Item 2 ).

 

 

Items 7 and 8 - Paragraphs 89A(1B)(a) and 89A(1B)(b)

 

Paragraph 89A(1B) of the ESOS Act deals with the suspension of a provider’s registration (other than providers covered by subsection 9B(1)) if both paragraph 89A(1B) (a) and (b) apply.  Currently, the suspension will occur where:

 

-           a provider is either approved by the National VET Regulator to provide courses (subparagraph 89A(1B)(a)(i)), or a provider is approved by the National VET Regulator and another designated authority to provide courses (subparagraph 89A(1B)(a)(ii)); and

-           the National VET Regulator tells the Secretary that it (having regard to the matters specified in subsection 9B(2)) is no longer satisfied the provider is fit and proper to be registered (paragraph 89A(1B)(b)).

 

Item 7 repeals and substitutes paragraph 89A(1B)(a).  The new requirement is that a provider is either approved by a Commonwealth designated authority to provide courses (subparagraph 89A(1B)(a)(i)), or a provider is approved by a Commonwealth designated authority and by a designated authority that is not a Commonwealth designated authority to provide courses (subparagraph 89A(1B)(a)(ii)).

 

The effect of Item 8 is to replace the reference in paragraph 89A(1B)(b) to the National VET Regulator telling the Secretary with the Commonwealth designated authority telling the Secretary.

 

 

Item 9 - After paragraph 170(1)(a)

 

Subsection 170(1) of the ESOS Act deals with the delegation of the Minister’s powers under the ESOS Act.  Item 9 inserts a new paragraph 170(1)(aa), the effect of which is to allow the Minister to delegate any or all of the Minister’s powers under the ESOS Act to TEQSA (in addition to the persons and bodies already specified in subsection 170(1)).

 

 

 

Item 10 - Before paragraph 170(2)(a)

 

Subsection 170(2) of the ESOS Act deals with the delegation of the Secretary’s powers under the ESOS Act.  Item 10 inserts a new paragraph 170(2)(aa), the effect of which is to allow the Secretary to delegate any or all of the Secretary’s powers under the ESOS Act to TEQSA (in addition to the persons and bodies already specified in subsection 170(2)).

 

 

Item 11 - Before subsection 170(3) (before the heading)

 

Subsection 170(3) of the ESOS Act deals with the subdelegation of the Minister’s or Secretary’s powers under the ESOS Act.  Item 11 inserts a new subsection 170(2A), the effect of which is to provide that, if the Minister or Secretary delegates powers to TEQSA under section 170, then TEQSA can subdelegate (in writing) those powers to members of TEQSA’s staff who are SES employees, acting SES employees, or Executive Level (EL) 1 or 2 or equivalent officers (or acting in such positions).  

 

TEQSA will be a small agency and it is anticipated that its only SES staff will be the Chief Commissioner and the 4 other Commissioners, only 3 of whom (including the Chief Commissioner) will be full-time. While the ability to delegate to Executive Level staff may not be used, the efficient administration of the Act may require such delegations.

 

 

Item 12 - Subsection 170(4)

 

Item 12 replaces the reference to ‘the subdelegation’ in subsection 170(4) of the ESOS Act with a reference to ‘a subdelegation under subsection (2A) or (3)’.  This is consequential to the amendment made by Item 11 which inserts a new subsection 170(2A) into the ESOS Act.

 

 

Item 13 - Saving of existing determinations

 

Item 13 is a consequential amendment to Items 3 and 4. Its effect is to provide that any determinations that were in force immediately before the commencement of Item 13, where such determinations were made under paragraph (b) of the definition of designated authority in section 5 of the ESOS Act, will continue to apply after commencement as if they were determinations made by the Minister under new subsection 7A(4).

 

 

Item 14 - Things done by, or in relation to, a designated authority

 

Item 14 is a savings provision and applies if, before item 14 commences (see clause 2 (commencement) and Table Item 2 above), something was done by or in relation to a designated authority under the ESOS Act.

 

If so, the thing is taken after commencement to have been done by or in relation to the relevant designated authority (see Item 4 for the new meaning of designated authority ). The Minister may, however, issue a written determination that this would not apply to a specified thing (which includes making an instrument) done by or in relation to a designated authority.  Item 14 also provides that such a determination would not be a legislative instrument. This provision is included to assist readers as such an instrument would not be a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 .

 



Part 2 - Amendments if VET law has not commenced

 

 

Note: Clause 2 (Commencement) (Table Item 3) provides for Items 15 to 24 of Schedule 1 to commence at the same time that Part 2 of the Tertiary Education Quality and Standards Agency Act 2011 commences - but if item 1 of Schedule 1 of the National Vocational Education and Training Regulator (Consequential Amendments) Act 2011 commences at or before that time, Items 15 to 24 of Schedule 1 will not commence at all.

-           Part 2 of the Tertiary Education Quality and Standards Agency Act 2011 commences on the later of 1 January 2012 and the day after 7 months from when the Act receives Royal Assent.

-           Item 1 of Schedule 1 of the National Vocational Education and Training Regulator (Consequential Amendments) Act 2011 commences immediately after the commencement of section 3 of the National Vocational Education and Training Regulator Act 2011.  Section 3 of the National Vocational Education and Training Regulator Act 2011 commences on a day to be fixed by proclamation - or, if this does not occur within 6 months from Royal Assent, the day after 6 months from Royal Assent.

 

The references to the ESOS Act below in Part 2 of Schedule 1 should be read on the assumption that the ESOS Act has not been amended by relevant provisions of the National Vocational Education and Training Regulator (Consequential Amendments) Act 2011 - i.e. these amending provisions have not commenced .

 

 

For the commencement of Items 15 to 24, see clause 2 (commencement) and Table Item 3 above.  In short, the items commence at the same time as Part 2 of the TEQSA Act commences (the later of 1 July 2011 and 7 months from when the TEQSA Act receives Royal Assent) - but they will not commence at all if Item 1 of Schedule 1 of the National Vocational Education and Training Regulator (Consequential Amendments) Act 2011 commences before this time. 

 

 

 Item 15 - Section 5 (definition of approved provider)

 

The effect of this Item is to amend the definition of approved provider in section 5 of the ESOS Act by replacing the reference to ‘the designated authority’ with a reference to ‘the relevant designated authority’.  This reflects a number of other amendments made by this Bill to the ESOS Act, which mean that there may be more than one designated authority for a State.  Item 15 is consequential to the amendment made by Item 17

 

 

 

 

 

 

Item 16 - Section 5 (definition of authorised employee)

 

Item 16 repeals the definition of authorised employee in section 5 of the ESOS Act and replaces it with a new definition.  Under the new definition, authorised employee means either:

 

-           a person who is an authorised officer within the meaning of the TEQSA Act (see clause 94 of the TEQSA Act) if the Secretary has delegated a power under subsection 170(2) to TEQSA that TEQSA considers requires powers to be exercised under part 7 of the ESOS Act (monitoring and searching providers); or

-           in any other case someone who is authorised in writing by the Secretary to exercise powers under Part 7 of the ESOS Act and is an employee of the Department holding the classification of APS 5 or higher (or equivalent).

 

These changes will ensure that authorised officers of TEQSA will be able to act as authorised employees under the ESOS Act where they are given this power under the TEQSA Act.

 

An authorised employee under the ESOS Act must hold a classification of APS 5 or higher and would conduct a range of monitoring and enforcement activities, but an authorised employee would not make significant regulatory decisions. Within TEQSA, authorised officers will be of the classification Executive Level 1 or higher. The higher classification of authorised officers working for TEQSA reflects the notion that monitoring and enforcement are activities that require expert skills and high level judgement. At the same time, it is likely that the only officers of TEQSA who would be at the SES level will be the Chief Commissioner and the 4 other Commissioners, of whom only 3 (including the Chief Commissioner) will be full-time. It is not practicable for the 5 Commissioners (including the Chief Commissioner) to be the only TEQSA personnel able to be authorised employees for the purposes of the ESOS Act.

 

 

Item 17 - Section 5 (definition of designated authority)

 

Item 17 repeals the definition of designated authority in section 5 of the ESOS Act and replaces it with a new definition of that term which allows for more than one designated authority for a State in relation to a provider. 

 

Paragraph (a) has the effect that to the extent the provider is a registered higher education provide (within the meaning of the TEQSA Act), the designated authority for the State in relation to the provider will be TEQSA. This means that TEQSA will automatically become the designated authority for a higher education course of study (as defined in the TEQSA Act) which is to be registered under the ESOS Act where the provider is registered with TEQSA.

 

Paragraph (b) has the effect that, in any other case, the designated authority for a State in relation to the provider will be person responsible for approving providers to provide courses to overseas students under the law of the State.

 

Item 18 - Subsection 10(5)

 

Item 18 inserts the words ‘for a course’ after ‘is registered’ in subsection 10(5) of the ESOS Act, to reflect that approved providers are registered to provide a course. 

 

 

Item 19 - Paragraph 14(1)(b)

 

Item 19 substitutes a new paragraph 14(1)(b) in the ESOS Act in which the reference to ‘the source of the information is not the designated authority’ is replaced with a reference to ‘the source of the information is not the relevant designated authority’.  This is to reflect that there may be more than one designated authority for a State or Territory.   

 

 

Item 20 - Subsection 14(2)

 

Item 20 substitutes a new subsection 14(2) in the ESOS Act which provides that the Secretary must give the information referred to in subsection 14(1) to ‘the relevant designated authority’.  This is to reflect that there may be more than one designated authority for a State.   

 

 

Item 21 - Subsection 14(3)

 

Item 21 amends subsection 14(3) of the ESOS Act so that it refers to ‘the relevant designated authority’ and not ‘the designated authority’, to reflect that there may be more than one designated authority for a State. 

 

 

Item 22 - Paragraph 14A(1)(a)

 

Item 22 repeals paragraph 14A(1)(a) of the ESOS Act and replaces it with new paragraphs 14A(1)(a) and (aa) to reflect that there may be more than one designated authority for a State.  

 

 

Item 23 - Paragraph 14A(2)(a)

 

Item 23 repeals paragraph 14A(2)(a) of the ESOS Act and replaces it with new paragraphs 14A(2)(a) and (aa) to reflect that there may be more than one designated authority for a State. 

 

 

Item 24 - Subsection 14A(4)

 

Item 24 amends subsection 14A(4) of the ESOS Act so that it refers to ‘the relevant designated authority’ and not ‘the designated authority’, to reflect that there may be more than one designated authority for a State. 

 

 

Note: Clause 2 (Commencement) (Table Item 4) provides for Item 25 of Schedule 1 to commence immediately after the later of the commencement of the provisions specified in Table Item 3 and the commencement of Schedule 1 of the Education Services for Overseas Students Legislation Amendment Act 2011- but Item 25 of Schedule 1 will not commence at all unless both of these events occur.

-           Schedule 1 of the Education Services for Overseas Students Legislation Amendment Act 2011 commences on the later of the day after the Act receives Royal Assent and 1 January 2011.

 

 

 

For the commencement of Item 25, see clause 2 (commencement) and Table Item 4 above.  In short, Item 25 commences immediately after the later of the  commencement of Part 2 of the TEQSA Act and Schedule 1 of the Education Services for Overseas Students Legislation Amendment Act 2011 (if this occurs) - as long as both commence.  If, however, the National Vocational Education and Training Regulator (Consequential Amendments) Act 2011 commences before the TEQSA Act, Item 25 will not commence at all. 

 

 

Item 25 - Paragraph 14B(1)(b)

 

Item 25 substitutes a new paragraph 14B(1)(b) which refers to the relevant designated authority, instead of the designated authority, to reflect that there may be more than one designated authority for a State. 

 

Note that section 14B is to be inserted in the ESOS Act by the ESOS Amendment Bill.  Subsection 14B(1) will provide that the Secretary may impose a condition on a provider’s registration the Secretary thinks necessary in view of a risk assessment by the Secretary or the designated authority.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Note: Clause 2 (Commencement) (Table Item 5) provides for Items 26 to 39 of Schedule 1 to commence at the same time that Part 2 of the Tertiary Education Quality and Standards Agency Act 2011 commences - but if item 1 of Schedule 1 of the National Vocational Education and Training Regulator (Consequential Amendments) Act 2011 commences at or before that time, items 26 to 39 of Schedule 1 will not commence at all.

-           Part 2 of the Tertiary Education Quality and Standards Agency Act 2011 commences on the later of 1 January 2012 and the day after 7 months from when the Act receives Royal Assent.

-           Item 1 of Schedule 1 of the National Vocational Education and Training Regulator (Consequential Amendments) Act 2011 commences immediately after the commencement of section 3 of the National Vocational Education and Training Regulator Act 2011.  Section 3 of the National Vocational Education and Training Regulator Act 2011 commences on a day to be fixed by proclamation - or, if this does not occur within 6 months from Royal Assent, the day after 6 months from Royal Assent.

 

 

For the commencement of Items 26 to 39, see clause 2 (commencement) and Table Item 5 above.  In short, the items commence at the same time as Part 2 of the TEQSA Act commences (the later of 1 July 2012 and 7 months from when the TEQSA Act receives Royal Assent) - but they will not commence at all if Item 1 of Schedule 1 of the National Vocational Education and Training Regulator (Consequential Amendments) Act 2011 commences before this time. 

 

 

Item 26 - Paragraph 27(1B)(b)

 

Item 26 substitutes a new paragraph 27(1B)(b) in the ESOS Act which provides that one of the things which the Minister must have regard to when deciding whether to give the notice referred to in subsection 27(1A) is any advice of the relevant designated authority.  This is to reflect that there may be more than one designated authority for a State. 

 

 

Item 27 - Paragraph 43(1)(b)

 

Item 27 substitutes a new paragraph 43(1)(b) in the ESOS Act.  The new subsection extends the operation of section 43 so that it has operation where the Secretary has information from a source other than a designated authority suggesting that a registered provider for a State may have breached the national code. This amendment takes into account that there may be more than one designated authority for a State in relation to a provider.

 

 

 

 

 

Item 28 - Subsection 43(2)

 

Item 28 amends subsection 43(2) of the ESOS Act to take into account that there may be more than one designated authority for a State in relation to a provider. Where there is more than one designated authority for a State in relation to a provider there may be one or more ‘relevant designated authority’ for the purposes of subsection 43(2).

 

For example, if there were two designated authorities for a State in relation to a registered provider and the Secretary had information suggesting a possible breach of the national code by a provider, both designated authorities may be a ‘relevant designated authority’ which the Secretary must notify for the purposes of subsection 43(2). 

 

 

Item 29 - Subsection 43(2)

 

Item 29 amends subsection 43(2) of the ESOS Act to take into account that there may be more than one designated authority for a State in relation to a provider. The Secretary may ask one or more of the designated authorities for a State to investigate the matter or take other suitable action.

 

 

Item 30 - Paragraph 43(3)(a)

 

Item 30 amends paragraph 43(3)(a) of the ESOS Act to take into account that there may be more than one designated authority for a State in relation to a provider.

 

 

Item 31 - Paragraph 43(3)(b)

 

Item 31 amends paragraph 43(3)(b) of the ESOS Act to take into account that there may be more than one designated authority for a State in relation to a provider.

 

 

Item 32 - Paragraph 89(1)

 

Item 32 amends subsection 89(1) of the ESOS Act to take into account that there may be more than one designated authority for a State in relation to a provider. 

The amendment has the effect that where there is one or more designated authorities for a State in relation to a provider, the registration of a provider for a course is suspended if the relevant designated authority suspends the approval of the course.

 

For example, if there were two designated authorities for a State in relation to a provider, one being TEQSA by operation of paragraph (a) of the definition of designated authority (see Item 17 ) and another being the person responsible under State law for approving providers to provide courses to overseas students, and TEQSA suspends the approval of a course for the provider, the ‘relevant designated authority’ for the purposes of subsection 89(1) would be TEQSA.

 

Item 33 - Subsection 89A

 

Item 33 substitutes a new subsection 89A(1) in the ESOS Act to take into account that there may be more than one designated authority for a State in relation to a provider.

 

The new subsection 89A(1) applies where a provider is approved by one or more designated authorities (other than TEQSA) to provide courses for a State, and one of the designated authorities tells the Secretary that, having regard to the matters referred to in subsection 9B(2), the designated authority is no longer satisfied that the provider is fit and proper to be registered. In this case the registration of the provider (other than a provider covered by subsection 9B(1)) is suspended for all courses for the State.

 

The new subsection 89A(1A) has the effect that where a provider is suspended under subsection 89A(1) and that  same provider is also approved by TEQSA to provide courses for a State, the registration of the provider is also suspended for all courses for all States.

 

The new subsection 89A(1B) has the effect that where a provider is approved by TEQSA to provide courses for a State (whether or not the provider is also approved by another designated authority to provider other courses for the State) and TEQSA tells the Secretary that, having regard to the matters referred to in subsection 9B(2), TEQSA is no longer satisfied that the provider is fit and proper to be registered, the registration of the provider is suspended for all courses in all States.

 

A Note explains that section 95 of the ESOS Act sets out the effect of suspension.

 

 

Item 34 - Subsection 89A(2)

 

Item 34 amends subsection 89A(2) of the ESOS Act so that the reference to ‘the designated authority’ is replaced with a reference to ‘the relevant designated authority’.  This takes into account that there may be more than one designated authority for a State.  The relevant designated authority is the designated authority, that in accordance with subsection 89A(1), subsection 89A(1A) or subsection 89A(1B), originally told the Secretary it was not satisfied the provider was a fit and proper person to be registered.

 

 

Item 35 - Subsection 92B(1)

 

Item 35 amends subsection 92B(1) of the ESOS Act so that the first occurring reference to ‘the designated authority’ is replaced with a reference to ‘the relevant designated authority’.  This makes clear that there may be more than one designated authority for a State. 

 

 

 

 

Item 36 - Delegation

 

Item 36 repeals section 170 of the ESOS Act and replaces it with a new section 170, which will permit (in addition to the delegations permitted by the repealed section 170) the Minister or Secretary to delegate their powers to TEQSA and, if such a delegation is made, will permit TEQSA to sub-delegate the delegated powers to certain staff members. 

 

The new subsection 170(1) provides that the Minister may, by signed writing, delegate any or all of the Minister’s powers under the ESOS Act to:

 

-           the Secretary;

-           TEQSA; or

-           an SES employee or acting employee in the Department.

 

The new subsection 170(2) provides that the Secretary may, by signed writing, delegate any or all of the Secretary’s powers under the ESOS Act to:

 

-           TEQSA; or

-           an SES employee or acting SES employee in the Department. 

 

The new subsection 170(3) provides that if the Minister or the Secretary delegates a power under section 170 to TEQSA, then TEQSA may, by writing, sub-delegate the power to a member of the staff of TEQSA (ie persons engaged under the Public Service Act 1999 - clause 156 of the TEQSA Bill refers), who is:

 

-           an SES employee or acting SES employee; or

-           holding, or acting in, an Executive Level 1 or 2, or equivalent position.   

 

TEQSA will be a small agency and it is anticipated that its only SES staff will be the Chief Commissioner and the 4 other Commissioners, only 3 of whom (including the Chief Commissioner) will be full-time. While the ability to delegate to Executive Level staff may not be used, the efficient administration of the Act may require such delegations.

 

The new subsection 170(4) makes it clear that sections 34AA, 34AB and 34A of the Acts Interpretation Act 1901 apply in relation to the subdelegation in a corresponding way to the way in which they apply in relation to a delegation.  

 

 

Item 37 - Saving of existing authorisations

 

Item 37 is a savings provision and provides that a person who is an authorised employee as defined in the ESOS Act immediately before commencement of this item continues to be, at and after commencement of this item, an authorised employee for the purposes of the ESOS Act.    

 

 

 

 

Item 38 - Things done by, or in relation to, a designated authority

 

Item 38 is a savings provision and applies if, before item 38 commences (see clause 2 (commencement) and Table Item 5 above), something was done by or in relation to a designated authority under the ESOS Act.

 

If so, the thing is taken after commencement to have been done by or in relation to the relevant designated authority (see Item 17 for the new meaning of designated authority). The Minister may, however, issue a written determination that this would not apply to a specified thing (which includes making an instrument) done by or in relation to a designated authority.  Item 38 also provides that such a determination would not be a legislative instrument.  This provision is included to assist readers as such an instrument would not be a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 .   

 

 

Item 39 - Saving of existing delegations

 

Item 39 is a savings provision the effect of which is to ensure that any delegations in force under section 170 of the ESOS Act immediately before the commencement of this Item (see clause 2 (commencement) and Table Item 5 above) continue to have effect after that commencement.    

 



Part 3 - Amendments about access

 

 

Note: Clause 2 (Commencement) (Table Item 6) provides for Part 3 of Schedule 1 to commence at the same time that section 3 of the Tertiary Education Quality and Standards Agency Act 2011 commences.

-           Section 3 of the Tertiary Education Quality and Standards Agency Act 2011 commences on the later of 1 July 2011 and the day after 1 month from when the Act receives Royal Assent.

 

 

 

Item 40, Item 41 and Item 42 - Section 124

 

Section 124 of the ESOS Act concerns authorised employees (or others with their permission) inspecting documents, and taking copies of them etc.  The effect of Item 40 is to turn the existing section 124 into subsection 124(1).

 

Item 41 amends existing section 124 of the ESOS Act by deleting the words ‘another employee of the Department with an’ and replacing them with ‘a person covered by subsection (2) who has the’.  This is a consequential amendment to Item 42, the effect of which is to provide that the following persons may, with an authorised employee’s permission, inspect documents and take copies of them:

 

-                       an employee within the same Public Service Act 1999 agency as the authorised employee (in the case of a TEQSA authorised employee, this would allow that authorised employee to give the relevant permission to another employee of TEQSA); or

-                       a constituent member (however the member is described) of that Public Service Act 1999 agency (in the case of TEQSA that would extend, for example, to TEQSA’s Commissioners).

 

 

Item 43 and 44 - Subsection 125(1) and At the end of section 125

 

Section 125 of the ESOS Act concerns authorised employees (or others with their permission) retaining copies of documents.  Item 43 amends existing subsection 125(1) by deleting the words ‘another employee of the Department with an’ and replacing them with ‘a person covered by subsection (3) who has the’ ( Item 44 inserts a new subsection 125(3) into the ESOS Act).  The effect of this is to provide that the following persons may, with an authorised employee’s permission, retain documents:

 

-                       an employee within the same Public Service Act 1999 agency as the authorised employee (in the case of a TEQSA authorised employee, this would allow that authorised employee to give the relevant permission to another employee of TEQSA); or

-                       a constituent member (however the member is described) of that Public Service Act 1999 agency (in the case of TEQSA that would extend, for example, to TEQSA’s Commissioners).

 



Part 4 - Other amendments

 

 

Note: Clause 2 (Commencement) (Table Item 7) provides for Part 4 of Schedule 1 to commence immediately after the commencement of Part 2 of the Tertiary Education Quality and Standards Agency Act 2011.

-           Part 2 of the Tertiary Education Quality and Standards Agency Act 2011 commences on the later of 1 January 2012 and the day after 7 months from when the Act receives Royal Assent.

 

 

 

Item 45 - Section 5

 

Item 45 inserts the term TEQSA into section 5 of the ESOS Act.  TEQSA is short for the Tertiary Education Quality and Standards Agency as established by section 132 of the TEQSA Act.

 

 

Item 46 - Section 5

 

Item 46 inserts the term TEQSA Act into section 5 of the ESOS Act. The term TEQSA Act is defined as meaning the Tertiary Education Quality and Standards Agency Act 2011

 

 

  

 

 

 



  Schedule 2 —Other amendments

 

Part 1 - Amendments about higher education support

Division 1 - Main Amendments

 

Higher Education Support Act 2003

 

 

 

Note: Clause 2 (Commencement) (Table Item 8) provides for Part 1 of Schedule 2 to commence immediately after the commencement of Part 2 of the Tertiary Education Quality and Standards Agency Act 2011.

-           Part 2 of the Tertiary Education Quality and Standards Agency Act 2011 commences on the later of 1 January 2012 and the day after 7 months from when the Act receives Royal Assent.

 

 

 

Items 1 and 2 - Sections 1-15 and 3-25

 

Section 1-15 of the HESA Act provides that Chapter 6 of the HESA Act and regulations made for the purposes of Chapter 6 extend to the external Territories.  Item 1 repeals section 1-15 of the HESA Act.

 

Item 2 repeals section 3-25 of the HESA Act which is an explanatory provision explaining that Chapter 6 of the HESA Act provides for approval of universities, self-accrediting entities and non self-accrediting entities to operate in external Territories, and for accreditation of courses of study in those Territories.  Item 20 of Part 1 of Schedule 2 repeals Chapter 6 in its entirety.

 

 

Item 3 - Subsection 5-1(2) (table item 1)

 

The table under subsection 5-1 sets out the manner in which the provisions of the HESA Act apply in relation to a Table C provider. Item 3 has the effect of substituting TEQSA as the new body that may be required to assess the overall performance of a Table C provider in relation to the particular body corporate through which the Table C provider conducts its higher education operations in Australia.

 

 

Item 4 - After section 16-25

 

Section 16-25 of the HESA Act sets out the criteria to be satisfied in order for a body corporate to be approved by the Minister as a higher education provider for the purposes of the HESA Act.  Item 4 inserts a new section 16-27 into the HESA Act which provides that, notwithstanding the requirements section 16-25, the Minister must not approve a body corporate as a higher education provider (for the purposes of the HESA Act), unless it is a registered higher education provider Item 32 of Part 1 of Schedule 2 inserts a definition of registered higher education provider in subclause 1(1) of Schedule 1 of the HESA Act - which defines the term as having the same meaning as in the TEQSA Act.

 

 

Item 5 - Subsection 16-40(1)

 

Subsection 16-40(1) of the HESA Act provides that a body corporate may apply to the Minister for approval as a higher education provider (for the purposes of the HESA Act).  Item 5 repeals and substitutes a new subsection 16-40(1), which provides that a  body corporate that is a registered higher education provider may apply to the Minister for approval as a higher education provider under the HESA Act.  Item 32 of Part 1 of Schedule 2 inserts a definition of registered higher education provider in subclause 1(1) of Schedule 1 of the HESA Act - which defines the term as having the same meaning as in the TEQSA Act.

 

 

Item 6 - After section 16-40

 

Item 6 inserts new section 16-42 into the HESA Act. New section 16-42 allows the Minister to seek information from TEQSA for the purpose of approving a body corporate as a higher education provider under the HESA Act. Specifically, the Minister may seek information from TEQSA in relation to the application made by the body corporate or in relation to the body corporate’s overall ability to comply with the quality requirements. Item 7 makes amendments in relation to the new quality requirements.

 

 

Item 7 - Subdivision 19-C

 

Item 7 repeals and substitutes Subdivision 19-C. 

 

Subdivision 19-C of the HESA Act deals with the quality requirements. The quality requirements are specified in the Threshold Standards (within the meaning of the TEQSA Act).

 

New section 19-15 makes it a condition of approval that a higher education provider must operate, and continue to operate, at a level of quality that meets the Threshold Standards and the requirements imposed under the TEQSA Act on, or in relation to, the provider.

 

 

Item 8 - Paragraphs 19-77(c) and (d)

 

Item 8 repeals and substitutes paragraphs 19-77(c) and (d).

 

Section 19-77 of the HESA Act sets out the events affecting a higher education provider’s accreditation which the provider must notify the Minister of.   Item 8 amends paragraphs 19-77(c) and (d) to specify that any event which may affect either the provider’s authority from TEQSA to self-accredit one or more courses of study, or in respect of TEQSA’s accreditation of a course of study offered by the provider, must be notified in writing to the Minister.

 

 

Item 9 - After section 19-77

 

Item 9 inserts new section 19-78 into the HESA Act. New section 19-78 imposes a new notification requirement upon a higher education provider. This amendment sets out new events affecting a higher education provider’s registration which the provider must notify the Minister of. Item 9 specifies that any event which may significantly affect a provider (or a body corporate related to the provider) in relation to the provider’s registration must be notified in writing to the Minister.

 

New subsection 19-78(2) exempts the provider from this requirement if the provider has already informed the Minister of an event under section 19-77.

 

 

Item 10 - After subsection 19-80(2)

 

Section 19-80 of the HESA Act provides that the Minister may require higher education providers (apart from Table A providers) to undergo audits in order to assess their compliance with a number of requirements, such as the financial viability requirements specified in the HESA Act.  Subsection 19-80(2) of the HESA Act provides that these audits must be conducted by bodies determined in writing by the Minister.

 

Item 10 inserts a new subsection 19-80(2A) into the HESA Act to make it clear that, if the Minister makes a determination that TEQSA is to conduct the audits, this is not to be taken as a direction for the purposes of subsection 136(2) of the TEQSA Act.  Section 136 of the TEQSA Act (once enacted) will allow the Minister to give directions to TEQSA and subsection 136(2) will provide that the Minister must not give a direction in relation to a particular regulated entity.

 

 

Item 11 - Subsection 19-102(4)

 

Section 19-102 of the HESA Act defines the meaning of a fee , but subsection 19-102(4) provides that the definition does not apply for the purposes of section 104-50 (fees for assessment statements) and section 225-25 (fees set out in the Higher Education in External Territories Guidelines).  Item 11 amends section 19-102 by omitting the reference to section 225-25. The Higher Education in External Territories Guidelines will cease to have effect with the omission of the reference in section 19-102, which accompanies the repeal of Chapter 6 of the HESA Act (see Item 21 of Part 1 of Schedule 2).

 

 

 

 

Items 12, 13, 14, 15 and 16 - Section 22-1, At the end of section 22-1, Paragraph 22-10(2A)(b), At the end of section 22-10, After section 22-20

 

Items 12 to 16 , inclusive, make amendments in relation to the revocation of approval of a higher education provider under the HESA Act.

 

Item 13 inserts new subsection 22-1(2) in the HESA Act which imposes an obligation upon the Minister to notify TEQSA, in writing, if a body corporate ceases to be approved as a higher education provider under the HESA Act. Item 12 is a technical amendment in relation to the amendment made by Item 13 .

 

Section 22-10 of the HESA Act concerns the revocation of a body’s approval as a higher education provider for the purposes of the HESA Act if the body’s status or accreditation changes.

 

Item 14 repeals and substitutes paragraph 22-10(2A)(b) of the HESA Act.  The effect of this amendment is to replace the reference to a government accreditation authority with a reference to TEQSA.  As amended, subsection 22-10(2A) will allow the Minister to revoke a body’s approval as a higher education provider if the body was a self-accrediting entity and is no longer authorised by TEQSA to self-accredit a course of study.

 

Item 15 i nserts new subsection 22-10(6) in the HESA Act. New subsection 22-10(6) allows the Minister to revoke a body’s approval as a higher education provider if that body is no longer a registered higher education provider (see Item 32 of Part 1 of Schedule 2 - i.e. a registered higher education provider within the meaning of the TEQSA Act) and the Minister complies with the procedural fairness requirements under section 22-20.

 

Item 16 inserts new section 22-22 in the HESA Act to allow the Minister to seek information from TEQSA for the purposes of determining whether to revoke a body’s approval as a higher education provider.

 

 

Item 17 - Before paragraph 90-1(a)

 

Item 17 inserts new paragraph 90-1(aa) into subsection 90-1(1) of the HESA Act.

 

Section 90-1 sets out the eligibility criteria to be satisfied by a student before qualifying for HECS-HELP assistance. This amendment creates new eligibility criterion that a student shall be entitled to HECS-HELP assistance for a unit of study if the course of study is an accredited course.

 

 

Item 18 - Paragraph 104-10(1)(b)

 

Item 18 repeals and substitutes paragraph 104-10(1)(b) of the HESA Act.

 

For the purposes of determining a student’s entitlement to FEE-HELP assistance, section 104-10 sets out the course requirements that a unit of study must satisfy.

 

This amendment has the effect of repealing the current criterion that, if the unit is being undertaken as part of a course of study with a higher education provider and the course is not one the provider is authorised by a government accreditation authority to accredit, the course must be an accredited course.

 

In its place, Item 18 inserts the new criterion that, if the unit is being undertaken as part of a course of study with a higher education provider, the course of study must be either an accredited course in relation to the provider or, if the provider is a self-accrediting entity, the course is an enabling course.

 

 

Item 19 - After paragraph 118-1(1)(c)

 

Item 19 inserts new paragraph 118-1(1)(ca) in the HESA Act.  Section 118-1 sets out the eligibility criteria to be satisfied by a student before qualifying for OS-HELP assistance. This amendment has the effect of including the new criterion that the undergraduate course of study the student is undertaking is an accredited course in relation to the student’s home provider.

 

 

Items 20, 21 and 22 - Section 206-1 (table item 5), Chapter 6 and Subsection 238-10(1) (table item 6A)

 

Item 21 repeals Chapter 6 of the HESA Act in its entirety. Chapter 6 deals with matters in relation to the provision of higher education in the external Territories. Items 20 and 22 are consequential amendments to Item 21 .

 

 

Item 23 - Subclause 1(1) of Schedule 1 (definition of accredited course )

 

Item 23 repeals and substitutes the definition of accredited course in subclause 1(1) of Schedule 1 of the HESA Act to mean a course of study (other than an enabling course) that:

 

-                       if a registered higher education provider is authorised by TEQSA to self- accredit the course of study—is accredited by the provider; and

-                       in any other case—is accredited by TEQSA.

 

 

Item 24 - Subclause 1(1) of Schedule 1 (definition of Australian Qualifications Framework )

 

Item 24 repeals and substitutes the definition of Australian Qualifications Framework in subclause 1(1) of Schedule 1 of the HESA Act to mean the framework for recognition and endorsement of qualifications established by the Council comprised of the Ministers responsible for education for the Commonwealth and each State and Territory - as in force from time to time. The higher education sector is dynamic and qualifications evolve to respond to student demand and global trends. Thus it is important that the reference to the Australian Qualification Framework updates and refers to the latest version of the framework as made by the Ministerial Council from time to time and that gives effect to agreed standards across all jurisdictions in relation to the provision of education in Australia.

 

 

Item 25 - Subclause 1(1) of Schedule 1 (definition of Australian university )

 

Item 25 repeals and substitutes the definition of Australian university in subclause 1(1) of Schedule 1 of the HESA Act to mean a registered higher education provider that, for the purposes of the TEQSA Act, is registered in a provider category that permits the use of the word ‘university,’ and that is established by or under, or recognised by, a law of the Commonwealth or a State or Territory, or is registered as a company under Part 2A.2 of the Corporations Act 2001 .

 

 

Item 26 - Subclause 1(1) of Schedule 1 (definition of government accreditation authority )

 

Item 26 repeals the definitio n of government accreditation authority in subclause 1(1) of Schedule 1 of the HESA Act.

 

 

Item 27 - Subclause 1(1) of Schedule 1 (definition of National Protocols )

 

Item 27 repeals the definition of National Protocols in subclause 1(1) of Schedule 1 of the HESA Act.

 

 

Item 28 - Subclause 1(1) of Schedule 1 (definition of non self-accrediting entity )

 

Item 28 repeals and substitutes the definition of non self-accrediting entity in subclause 1(1) of Schedule 1 of the HESA Act to mean a body that is a registered higher education provider and has no authorisation from TEQSA to self-accredit any course of study that leads to a higher education award.

 

 

Item 29 - Subclause 1(1) of Schedule 1 (definition of offering )

 

Item 29 repeals the definition of offering in subclause 1(1) of Schedule 1 of the HESA Act.

 

 

Item 30 - Subclause 1(1) of Schedule 1 (definition of operating )

 

Item 30 repeals the definition of operating in subclause 1(1) of Schedule 1 of the HESA Act.

 

 

 

 

Item 31 - Subclause 1(1) of Schedule 1 (definition of quality auditing body )

 

Item 31 repeals the definition of quality auditing body in subclause 1(1) of Schedule 1 of the HESA Act.

 

 

Item 32 - Subclause 1(1) of Schedule 1

 

Item 32 inserts the term registered higher education provider in subclause 1(1) of Schedule 1 of the HESA Act and provides for it to have the same meaning as in the TEQSA Act.

 

 

Item 33 - Subclause 1(1) of Schedule 1 (definition of self-accrediting entity )

 

Item 33 repeals and substitutes the definition of self-accrediting entity in subclause 1(1) of Schedule 1 of the HESA Act to mean a body corporate that is a higher education provider and is authorised by TEQSA to self-accredit one or more courses of study that leads to a higher education award.  

 

 

Item 34 - Subclause 1(1) of Schedule 1

 

Item 34 inserts the term TEQSA in subclause 1(1) of Schedule 1 of the HESA Act and provides for itto mean the body established by section 132 of the TEQSA Act.

 

 

Item 35 - Subclause 1(1) of Schedule 1

 

Item 35 inserts the term TEQSA Act in subclause 1(1) of Schedule 1 of the HESA Act and provides for it to mean the Tertiary Education Quality and Standards Agency Act 2011 .

 

 

Item 36 - Application of amendments

 

Item 36 is an application provision, the effect of which is as follows:

 

-                       to ensure that new section 16-27 of the HESA Act (as inserted by Item 4 of Division 1 of Part 1 of Schedule 2 of this Bill - and which provides that, despite section 16-25, the Minister must not approve a body corporate as a higher education provider unless it is a registered higher education provider ), applies in relation to an application for approval as a higher education provider that is made on or after Item 36 commences; and

-                       to ensure that section 16-40 of the HESA Act (as amended by Item 5 of Division 1 of Part 1 of Schedule 2 of this Bill - and which allows bodies corporate to apply to the Minister for approval as a higher education provider under the HESA Act), applies in relation to applications for approval that are made on or after Item 36 commences; and

-                       to ensure that new section 19-78 of the HESA Act (as inserted by Item 9 of Division 1 of Part 1 of Schedule 2 of this Bill - and which imposes a new notification requirement upon a higher education provider and sets new events affecting a higher education provider’s registration which the provider must notify the Minister of), applies in relation to an event that happens before, on or after Item 36 commences; and

-                       to ensure that new paragraph 90-1(aa) of the HESA Act (as inserted by Item 17 of Part 1 of Schedule 2 of this Bill) - and which creates a new eligibility criterion that a student shall be eligible to HECS-HELP assistance for a unit of study if the course is an accredited course, applies in relation to an enrolment in a unit of study if that enrolment commences on or after Item 36 commences;

-                       to ensure that new paragraph 104-10(1)(b) of the HESA Act (as repealed and substituted by Item 18 of Part 1 of Schedule 2 of this Bill) - and which has the effect of inserting a new criterion for determining a student’s eligibility for HECS-HELP assistance (that, if a unit is being undertaken as part of a course of study with a higher education provider, the course of study must be either an accredited course in relation to the provider, or an enabling course), applies in relation to an enrolment in a unit of study if the enrolment starts on or after Item 36 commences; and

-                       to ensure that new paragraph 118-1(1)(ca) of the HESA Act (as inserted by Item 19 of Part 1 of Schedule 2 of this Bill) - and which creates a new eligibility criterion for OS-HELP assistance that the undergraduate course of study the student is undertaking is an accredited course in relation to the student’s home provider, applies in relation to the 6 month period commencing on or after Item 36 commences.

 

Division 2 - Amendments of new laws about approvals

 

Higher Education Support Act 2003

 

 

 

Note: Clause 2 (Commencement) (Table Item 9) provides for Division 2 of Part 1 of  Schedule 2 to commence immediately after the commencement of Part 2 of the Tertiary Education Quality and Standards Agency Act 2011.  However, Division 2 of Part 1 of Schedule 2 will not commence at all if Schedule 1 of the Higher Education Support Amendment (No 1) Act 2011 has not commenced by this time.

-           Part 2 of the Tertiary Education Quality and Standards Agency Act 2011 commences on the later of 1 January 2012 and the day after 7 months from when the Act receives Royal Assent.

-           Schedule 1 of the Higher Education Support Amendment (No 1) Act 2011 commences the day after the Act receives Royal Assent.

 

 

 

 

 

Items 37 and 38 - Paragraph 16-25(1)(d) and Paragraphs 16-25(1)(db) and (dc)

 

Section 16-25 of the HESA Act sets out the criteria to be satisfied in order for a body corporate to be approved by the Minister as a higher education provider for the purposes of the HESA Act.

 

One of these criteria is that the body is in a State or Territory that the Minister is satisfied has legislation that complies with the National Protocols (paragraph 16-25(1)(d)).    Item 37 repeals paragraph 16-25(1)(d) of the HESA Act. 

 

Other criteria include:

 

-           if the body is a self-accrediting entity, the body is authorised by a government accreditation authority to accredit its courses, or its courses are accredited (paragraph 16-25(1)(db)); and

-           if the body is a non self-accrediting entity, the course is accredited (paragraph 16-25(1)(dc)).

 

Item 38 repeals paragraphs 16-25(1)(db) and 16-25(1)(dc) and replaces them with a new paragraph 16-25(1)(db) - which provides that one of the criteria is that the course is an accredited course in relation to the body.

 

 

Item 39 - Application of amendments

 

Item 39 is an application provision.  It provides that the amendments made by Items 37 and 38 to subsection 16-25(1) of the HESA Act, apply in relation to applications for approval (as higher education providers under the HESA Act) apply in relation to applications that are made on or after Item 39 commences.

Division 3 - Amendments of old laws about approvals

 

Higher Education Support Act 2003

 

 

 

Note: Clause 2 (Commencement) (Table Item 10) provides for Division 3 of Part 1 of  Schedule 2 to commence immediately after the commencement of Part 2 of the Tertiary Education Quality and Standards Agency Act 2011.  However, Division 3 of Part 1 of Schedule 2 will not commence at all if Schedule 1 of the Higher Education Support Amendment (No 1) Act 2011 has not commenced by this time.

-           Part 2 of the Tertiary Education Quality and Standards Agency Act 2011 commences on the later of 1 January 2012 and the day after 7 months from when the Act receives Royal Assent.

-           Schedule 1 of the Higher Education Support Amendment (No 1) Act 2011 commences the day after the Act receives Royal Assent.

 

 

 

Items 40 and 41 - Paragraph 16-25(d) and Paragraphs 16-25(db) and (dc)

 

Section 16-25 of the HESA Act sets out the criteria to be satisfied in order for a body corporate to be approved by the Minister as a higher education provider for the purposes of the HESA Act.

 

One of these criteria (paragraph 16-25(d)) is that the body is in a State or Territory that the Minister is satisfied has legislation that complies with the National Protocols.  Item 40 repeals paragraph 16-25(d) of the HESA Act. 

 

Other criteria include:

 

-           if the body is a self-accrediting entity, the body is authorised by a government accreditation authority to accredit its courses, or its courses are accredited (paragraph 16-25(db)); and

-           if the body is a non self-accrediting entity, the course is accredited (paragraph 16-25(dc)).

 

Item 41 repeals paragraphs 16-25(db) and 16-25(dc) and replaces them with a new paragraph 16-25(db) - which provides that one of the criteria is that the course is an accredited course in relation to the body.

 

 

Item 42 - Application of amendments

 

Item 42 is an application provision.  It provides that the amendments made by Items 40 and 41 apply in relation to applications for approval (as higher education providers under the HESA Act) that are made on or after Item 42 commences.



Part 2 - Amendments after VET law commences

 

 

Note: Clause 2 (Commencement) (Table Item 11 provides for Part 2 of Schedule 2 to commence immediately after the later of the commencement of section 5 of the Tertiary Education Quality and Standards Agency Act 2011 and the commencement of section 3 of the National Vocational Education and Training Regulator Act 2011 - but Part 2 of Schedule 2 will not commence at all unless both section 5 of the Tertiary Education Quality and Standards Agency Act 2011 and section 3 of the National Vocational Education and Training Regulator Act 2011 commence.

-           Section 5 of the Tertiary Education Quality and Standards Agency Act 2011 commences on the later of 1 July 2011 and the day after 1 month from when the Act receives Royal Assent.

-           Section 3 of the National Vocational Education and Training Regulator Act 2011 commences on a day to be fixed by proclamation - or, if this does not occur within 6 months from Royal Assent, the day after 6 months from Royal Assent.

 

 

 

Tertiary Education Quality and Standards Agency Act 2011

 

 

Item 43 - Section 5 (definition of vocational education and training course)

 

Item 43 repeals and substitutes the definition of vocational education and training course in section 5 of the TEQSA Act to mean a VET Course within the meaning of the National Vocational Education and Training Regulator Act 2011 , or a course that is of a similar kind.

Schedule 3—Transitional provisions

 

 

Note: Clause 2 (Commencement) (Table Item 12) provides for Schedule 3 to commence at the same time that section 3 of the Tertiary Education Quality and Standards Agency Act 2011 commences.

-           Section 3 of the Tertiary Education Quality and Standards Agency Act 2011 commences on the later of 1 July 2011 and the day after 1 month from when the Act receives Royal Assent.

 

 

 

Part 1—Preliminary

Outline of Schedule

 

TEQSA will take on a number of functions which are currently undertaken by State and Territory authorities. The amendments in this Schedule will transition the necessary functions from the State and Territory authorities to TEQSA.

 

 

Part 1 - Preliminary

 

Item 1 - Interpretation

 

Subitem (1) defines a number of terms included in Schedule 3. This includes:

 

approved form means the form approved by TEQSA, in writing, for the purposes of the provision to which the expression occurs.

 

transition time means the time when Part 2 of the TEQSA Act commences.  This is the later of 1 January 2012 and the day after the end of the period of 7 months beginning on the day the TEQSA Act receives Royal Assent.

 

The other definitions are straightforward and do not require additional explanation.

 

Subitem (2) provides that in Schedule 3:

 

-           a higher education provider is taken to be registered under a State or Territory law even if the State or Territory law uses another term to describe registration; and

-           a higher education provider that is established by or under, or recognised by, a Commonwealth, State or Territory law (a Note at the end of subitem (2) provides that this covers a law that specifically establishes, or specifically recognises, the provider - it does not cover a general law like the Corporations Act 2001 under which a provider may be established) and exists immediately before the transition time is taken to be registered at that time under a State or Territory law relating to higher education; and

-           a course of study is taken to be accredited in relation to a higher education provider under a State or Territory law relating to higher education even if the State or Territory law uses another term to describe accreditation.

 

Subitem (2) addresses higher education providers that may have been recognised but not registered under State or Territory law. This applies to many universities. The purpose of this subitem is to ensure that all providers in this category are automatically registered with TEQSA and that, where providers are self-accrediting,  this self-accrediting authority will also be transferred to their TEQSA registration.

 

The effect of subitem (3) is to explain that the Constitutional basis of Schedule 3 is as follows:  

 

-                       the Commonwealth’s legislative power in paragraph 51(xx) of the Constitution (foreign corporations and trading or financial corporations formed within the limits of the Commonwealth)

-                       the Commonwealth’s legislative power in paragraph 51(xxxix) of the Constitution (matters incidental to the exercise of powers vested in the Commonwealth Parliament under the Constitution)

-                       the Commonwealth’s legislative power in section 122 of the Constitution (the power to legislate for the government of territories)

-                       any other Commonwealth legislative power to the extent that the Commonwealth relies upon, or has relied upon, that power to establish a corporation (eg section 4 of the Australian Film, Television and Radio School Act 1973 established the Australian Film, Television and Radio School as a body corporate).

 



Part 2 - Transferring existing State registrations to TEQSA system etc.

 

 

Division 1 - Transferring existing State registrations etc.

 

This Division will transition providers which are already registered under one or more State or Territory laws to TEQSA by providing that the providers are automatically registered as higher education providers under the TEQSA Act.

 

 

Item 2 - State registered provider automatically registered for the TEQSA Act

 

Subitem (1) provides that if, immediately before the transition time, a higher education provider was registered under one or more State or Territory laws relating to higher education, the provider will automatically be a registered higher education provider for the purposes of the TEQSA Act. 

 

A note at the end of this subitem clarifies that the automatic registration still means that the provider must comply with all of the requirements for such a provider under the TEQSA Act.

 

A second note clarifies that transition time is defined in subitem 1(1).

 

Subitem (2) deals with the length of a provider’s registration where it is automatically registered under subitem (1). This item provides that:

 

-           the registration is for the period starting at the transition time; and

-           ending at the later of the following:

o    for those providers listed in the Table in subitem (3) - the end of the time period specified in that Table for each listed provider. These providers are those found in Tables A and B of the HESA Act (see sections 16-15 and 16-20 of the HESA Act); and

o    if the provider is not listed in the Table in subitem (3) - when the provider would cease to be registered under the relevant State or Territory law or, if applicable, subitem 4(1) which deals with pending review decisions about State registrations (ignoring the enactment of the TEQSA Act); and

o    the end of a period set out in the most recent notice the provider has been given (if any) under section 37 of the TEQSA Act (about renewals of registration).  

 

Subitem (4) provides that these timeframes have effect subject to section 36(3) of the TEQSA Act (renewing registration), section 43 of the TEQSA Act (withdrawing registration) and Division 1 of Part 7 of the TEQSA Act (cancelling registration and other administrative sanctions).  A Note to subitem (4) also explains that registration can end early by virtue of paragraph 8(4)(b) of the Part 2 of Schedule 3 (which is about TEQSA not lifting the suspension of registration).

 

Note 1 to subitem (2) explains that automatic registration may be renewed under Division 3 of Part 3 of the TEQSA Act (renewing registrations).

 

Note 2 to subitem (2) explains that for those providers listed in the Table in subitem (3), the day specified in the table for a provider is the day its registration will end for the purposes of section 35 of the TEQSA Act (applications for renewal of registration).

 

Subitem (3) is a Table listing certain providers and specifying the last day of their automatic registration. These providers are those found in Tables A and B of the HESA Act (see sections 16-15 and 16-20 of the HESA Act). 

 

Subitem (5) clarifies that subitem (2) will apply to the registration instead of section 23 of the TEQSA a ct (commencement and duration of registration).

 

Subitem (6) further clarifies that subitems (1) and (2) have effect subject to Division 3 which deals with suspensions of automatic registrations.

 

 

Item 3 - Notice of provider category for TEQSA registration

 

Where a provider is likely to be automatically registered with TEQSA under this Division, this item will require TEQSA to notify the provider in advance of the provider category it is likely to be registered in.

 

Subitem (1) provides that if it is likely that a higher education provider will be automatically registered under subitem 2(1), TEQSA must give the provider advance notice of the category in which the provider is likely to be registered.

 

Subitem (2) requires TEQSA to give written notice of the category under subitem (1) at least 3 months before the transition time.

 

In addition to the notice in subitem (1), subitem (3) requires TEQSA to give the provider written notice of the provider category in which the provider is registered within 30 days after the transition time. A note clarifies that whether the provider is authorised to self-accredit courses of study depends on the provider’s position under State or Territory law as per Division 5.

 

Subitem (4) provides that this item applies to the registration instead of section 22 of the  TEQSA Act which deals with notifications.

 

 

 

Division 2 - Pending review decisions about State registrations

 

 

Item 4 - Pending review decisions about State registrations

 

Item 4 deals with higher education providers who have applied for registration prior to the transition time and who, after the transition time, as a result of a review decision would have been registered as a higher education provider with a State or Territory authority. These providers will be automatically registered with TEQSA where they notify TEQSA of the result of the review of decision.

 

Subitem (1) provides that a higher education provider is taken to be a registered higher education provider for the purposes of the TEQSA Act where before the transition time:

 

-           the provider has applied for a review of a decision by a registration authority, or

-           the period for applying for a review of a decision by a registration authority has not ended; and

-           the result of the review is that the provider would (ignoring the enactment of the  TEQSA Act) be registered under a State or Territory law.

 

To be registered under this subitem, the provider must notify TEQSA, in the approved form, of the State or Territory review (this could, for example, require the provider to supply TEQSA with satisfactory evidence of the State or Territory review decision - such as a certified copy of that decision).

 

A note at the end of the subitem clarifies that automatic registration still means that the provider must comply with conditions imposed on their registration (see section 24 of the TEQSA Act).

 

Subitem (2) deals with the length of registration where Item 2 does not apply to the provider.  In such cases, the provider’s registration starts at the transition time and ends at the later of the following:

 

-           when the provider’s registration would cease under the relevant State or Territory law (ignoring the enactment of the TEQSA Act);and

-           the end of a period set out in the most recent notice the provider has been given (if any) under section 37 of the TEQSA Act (about renewals of registration).

 

Subitem (3) provides that these timeframes have effect subject to section 36(3) of the TEQSA Act (renewing registration), section 43 of the TEQSA Act (withdrawing registration) and Division 1 of Part 7 of the TEQSA Act (cancelling registration and other administrative sanctions).  

 

Note 1 to subitem (2) explains that if both Item 2 and Item 4 apply to the provider - then the period of the provider’s registration is to be worked out under subitem 2(2).

 

Note 2 to subitem (2) explains that automatic registration may be renewed under Division 3 of Part 3 of the TEQSA Act (renewing registrations).

 

Subitem (4) clarifies that subitem (2) will apply to the registration instead of section 23 of the TEQSA a ct (commencement and duration of registration).

 

 

 

Item 5 - Notice of provider category for TEQSA registration

 

Subitem (1) provides that TEQSA must give the provider notice of  the provider category in which the provider is registered.

 

A note at the end of subitem (1) provides that whether the provider is authorised to self-accredit courses of study depends on the provider’s position under the State or Territory law (Division 5 refers).

 

Subitem (2) requires TEQSA to give the notice in this item within 30 days after TEQSA is notified of the State or Territory review decision under paragraph 4(1)(c).

 

Subitem (3) provides that this item applies to the registration instead of section 22 of the TEQSA Act (which is about notifications).

 

 

 

Division 3 - Suspended automatic TEQSA registrations             

 

 

A higher education provider who is automatically registered under the TEQSA Act may have had their registration suspended under a State or Territory law - this Division will deal with this situation and as to when the suspension will be lifted.

 

 

Item 6 - Automatic TEQSA registration is suspended

 

This item provides that Division 3 will apply if, immediately before the transition time, a higher education provider has a suspended registration under a State or Territory law relating to higher education.

 

Where the State or Territory registration is suspended, subitem (2) provides that the provider’s registration as a registered higher education provider is suspended automatically for a period of 120 days starting at the transition time.

 

Subitem (3) clarifies that the automatic suspension under this item does not prevent TEQSA from doing anything under the TEQSA Act in relation to the registration.

 

A note explains that, for example, Item 3 still requires the provider to be notified of its provider category and other details of its automatic TEQSA registration.

 

 

Item 7 - Automatic lifting of suspension if pending review of State suspension

 

This item will provide for when the automatic suspension of a provider’s registration is lifted where, as a result of a review, the suspension would have otherwise been lifted by the State or Territory registration authority.

 

The suspension will be lifted where:

 

-           before the transition time, the provider has either applied for a review of a decision by a registration authority, or the period for a applying for a review by a registration body has not yet ended; and

-           as a result of that review, the provider’s suspension would (ignoring the enactment of the TEQSA Act) be lifted; and

-           within the first 60 days after the transition time, the provider gives TEQSA information that TEQSA considers to be satisfactory evidence of the State or Territory review decision.

 

The suspension is lifted on the day that the provider gives notification to TEQSA (in the approved form) of the State or Territory review decision.

 

 

Item 8 - Lifting suspension if no pending review of State suspension

 

This item refers to when TEQSA must make a decision whether or not to lift a provider’s automatic suspension where Item 7 does not apply to the provider.

 

Subitem (1) provides that TEQSA must decide whether to lift the automatic suspension if:

 

-           the provider notifies TEQSA in the approved form and during the first 60 days of the automatic suspension (ie within 60 days of the transition time) that Item 7 cannot apply; or

-           the suspension is not lifted under Item 7 within the first 60 days after the transition time.

 

Subitem (2) provides that TEQSA must make its decision within 30 days of subitem (1) applying.

 

If TEQSA decides to lift the suspension, subitem (3) requires TEQSA to give the provider written notice of the decision within 30 days.

 

A note at the end of subitem (3) provides that TEQSA may impose conditions on the provider’s automatic TEQSA registration in return for lifting the suspension as per section 32 of the TEQSA Act.

 

If TEQSA decides not to lift the automatic suspension, subitem (4) requires TEQSA to notify the provider in writing of this decision within 30 days, including providing reasons for its decision.

 

Subitem (4) also provides that where TEQSA decides not to lift the suspension, the provider’s automatic registration will end on the day specified in the notice of the decision not to lift the provider’s suspension.

 

 

 

 

 

Division 4 - Automatic transitional registration for some overseas providers

 

 

Item 9 - Automatic transitional registration

 

Subitem 9(1) provides for a higher education provider to automatically be taken as a registered higher education provider if they satisfy following:

 

-           the provider, immediately before the transition time, offers or confers an overseas higher education award for the completion of an overseas course of study provided from Australian premises related to the award (paragraph 9(1)(a)); and

-           at that time the provider was not required to be registered under a State or Territory law relating to higher education (paragraph 9(1)(b)); and

-           before the transition time, the provider gives TEQSA a request that the provider should be taken to be registered as a higher education provider. This request must be in the approved form (paragraph 9(1)(c)).

 

Subitem 9(2) provides that Division 3 of Part 3 of the TEQSA Act (renewing registration) will not apply to the transitional registration of such providers.  A Note explains, however, that the provider cannot apply to have the transitional registration renewed - instead it can apply for registration under Division 1 of Part 3 of the TEQSA Act (applying for registration).

 

 

Item 10 - Notice of provider category for transitional registration

 

Subitem 10(1) provides that in cases where TEQSA receives a notice from a higher education provider for the purposes of paragraph 9(1)(c) at least 60 days before the transition time, then TEQSA must give that provider advance notice of the likely provider category for the transitional registration and  whether the provider will be likely to be able to accredit one or more of its courses of study.  TEQSA must give this advance notice to the provider within 30 days after receiving the paragraph 9(1)(c) notice from the provider (subitem 10(2)).

 

Subitem 10(3) provides that TEQSA must then, within 30 days after the transition time give the provider written notice of the provider category for the transitional registration and whether the provider is able to accredit one or more of its courses of study.

 

Subitem 10(4) provides that Item 10 applies to the provider’s transitional registration instead of section 22 of the TEQSA Act (TEQSA to notify applicants about decisions on registration).

 

 

Item 11 - Commencement and duration of transitional registration

 

If a higher education provider, within 120 days after the transition time, applies for registration under section 18 of the TEQSA Act and continues that application under section 20 - then the provider’s transitional registration will commence at the transition time and end when TEQSA notifies the provider (under section 22 of the TEQSA Act) of TEQSA’s decision on the application (subitems 11(1) and (2)).

 

If a provider does not apply for ongoing registration under section 18 of the TEQSA Act, then the provider’s transitional registration will commence at the transition time and end 120 days later (subitem 11(3)).

 

Subitem 11(4) provides that the end date of the transitional registrations for the purposes of subitems 11(2) and 11(3) is subject to Division 1 of Part 7 of the TEQSA Act (about cancelling registration and other administrative sanctions).

 

Subitem 11 (5) provides that this item will apply to the provider’s transitional registration instead of section 23 of the TEQSA Act (about the commencement and duration of registration).

 

 

 

Division 5 - Transferring an authorisation to self-accredit courses of study

 

 

Item 12 - Transferring an authorisation to self-accredit courses of study

 

This item provides that, in some cases, the registration under Part 2 will contain the authority to self- accredit a course of study. This will occur automatically in two cases.

 

Firstly, where a higher education provider’s registration is transferred under Division 1, and that registration under the State or Territory law included the authority to self-accredit one or more courses of study, then the registration under the TEQSA Act will include that same authority to self-accredit those courses of study.

 

Secondly, where a higher education provider’s registration occurs under Division 2 after the outcome of a review of decision is determined and the State or Territory review decision would (ignoring the enactment of the TEQSA Act) have resulted in the provider being authorised to self-accredit a course of study, the registration under the TEQSA Act will include that same authority to self-accredit a course of study.

 

Importantly, this item does not prevent TEQSA from restricting or removing an authorisation to self-accredit a course of study under the TEQSA Act.

 

 

 

 

 

 

 

 

Division 6 - No inference that Standards met

 

 

Item 13 - No inference that Standards met

 

This item clarifies that where a provider is registered because of Part 2 of Schedule 3, no inference is to be made that the higher education provider meets the Threshold Standards because of that registration.

 

This is important as the registrations which occur under Part 2 are automatic registrations based on the registration the providers had under the relevant State or Territory laws. TEQSA has not made a decision in these cases; these are transitional provisions which transition existing higher education providers into the new framework.

 



Part 3 - Pending applications for State registration or re-registration

 

 

This Part deals with bodies who have applied for registration or re-registration as a higher education provider with the relevant State or Territory registration authority but whose application has not been decided at the transition time.

 

In short, the application may be transferred to TEQSA for TEQSA to make a decision on registration under the TEQSA Act.

 

 

Item 14 - Deciding pending applications for State registration or re-registration

 

This item provides that where a higher education provider applies for registration or re-registration under a State or Territory law and the application is not decided before the transition time and either the registration authority or the provider notifies TEQSA of the undecided application, TEQSA must make a decision under section 21 of the TEQSA Act to grant or reject the application.

 

 

Item 15 - TEQSA Act operates in a modified way for TEQSA’s consideration of the application

 

Where an application for registration or re-registration is transferred to TEQSA under this Part, the TEQSA Act will necessarily operate in a modified way to allow for TEQSA’s consideration of the application. This item modifies the TEQSA Act for the purposes of considering an application transferred to TEQSA under this Part.

 

An application for registration is taken to have been made, as required under section 18 of the TEQSA Act, if and when TEQSA receives from the provider:

 

-           all information, documents and assistance that TEQSA requests about the application; and

-           so much of the application fee prescribed for a preliminary assessment under Part 3 of the TEQSA Act that TEQSA requires.

 

A table in subitem (3) further modifies the TEQSA Act for the purposes of this Part. This table provides that for the purposes of this Part:

 

-           a reference to the preliminary assessment fee contained in subsection 19(3) of the TEQSA Act means a reference to the required payment described in this item; and

-           a reference to 12 months contained in section 21 of the TEQSA Act means 6 months.

 

This second point will have the effect of providing that TEQSA must make a decision on an application within 6 months of receiving it, or a longer period if determined by TEQSA under subsection 21(3) of the TEQSA Act.

Item 16 - Automatic transitional TEQSA registration while TEQSA considers pending application for re-registration 

 

Subitem 16(1) provides that where a provider has applied to a State or Territory authority for re-registration prior to the transition time and a decision is yet to be made on that application after the transition time, the provider is taken to be a registered higher education provider for the purposes of the TEQSA Act.  A note explains that this will mean the provider will, for example, have to comply with conditions imposed on registration from time to time (see section 24 of the TEQSA Act about complying with conditions).

 

Subitem 16(2) provides that the provider’s registration will:

 

-           commence from the transition time; and

-           end when TEQSA notifies the provider under section 22 of the TEQSA Act of its decision to grant or reject the application (this is subject to Division 1 of Part 7 about cancelling registration and other administrative sanctions - subitem 16(3)).

 

Paragraph 14(c) of Part 3 requires either the State or Territory registration authority or the provider to notify TEQSA of the pending application for re-registration in the approved form.  Subitem 16(3) provides that within 30 days of being so notified, TEQSA must give the provider a written notice stating the category in which the provider is registered and whether the provider is allowed to self-accredit one or more courses of study.

 

Subitem 16(5) provides that Division 3 of Part 3 of the TEQSA Act (renewing registration) does not apply to temporary registrations that exist because of this item.  In addition, a note explains that the provider cannot make an application under the TEQSA Act to have the transitional registration renewed.

 

Subitem 16(6) provides that where a decision is made under this item, it will apply for the registration instead of sections 22 and 23 of the TEQSA Act.

 

 

Item 17 - Consequences if fees already paid to registration authority

 

This item provides that where a provider has paid a fee to the registration authority for the application for registration or re-registration as a higher education provider (under paragraph 14(a) of Part 3), TEQSA may waive all or part of any fee payable under the TEQSA Act for the application.

 



Part 4 - Transferring existing State accreditation to TEQSA system etc.

 

This Part contains the transitional provisions to transfer State accredited courses to TEQSA.

 

 

Division 1 - Transferring existing State accreditations etc.

 

This Division will apply to automatically transfer courses which were accredited under State or Territory laws to the TEQSA system.

 

 

Item 18 - State accredited courses automatically accredited for the TEQSA Act

 

Subitem (1) provides that Division 1 applies in relation to each course of study that, immediately before the transition time, was accredited:

 

-           by one or more registration authorities under State or Territory laws relating to higher education; and

-           in relation to an entity that becomes registered because of Division 1 (transferring existing State registrations etc) or Divisions 2 (pending review decisions about State registrations) of Part 2.

 

Divisions 1 and 2 of Part 2 refer to the automatic registration of higher education providers who were registered as higher education providers under State or Territory laws immediately before the transition time.

 

Where this Division applies to a course of study, subitem (2) provides that the course of study is taken to be an accredited course in relation to the provider for the purposes of the TEQSA Act. That is, where a provider is automatically registered with TEQSA under Divisions 1 or 2 of Part 2, any courses accredited in respect of the provider under a State or Territory law is automatically accredited under the TEQSA Act.

 

There are two notes at the end of subitem (2).

 

Note 1 explains that where a course is accredited under this item the provider must still comply with all other requirements under the TEQSA Act, for example any conditions which may be imposed on the accreditation.

 

Note 2 explains that this Division does not apply to those providers who are able to self-accredit courses of study as an authority to self-accredit under State and Territory law will automatically be transferred under Item 12 of Schedule 3 (the note also draws attention to paragraph 1(2)(c) of Schedule 3).

 

Subitem (3) explains the period of accreditation for the course automatically accredited under this item. The registration is for the period starting at the transition time and ending the later of the following:

 

-           the latest time the course of study would cease to be accredited under a State or Territory law referred to in subitem (1) or, if applicable, subitem 19(1) (ignoring the enactment of the TEQSA Act); and

-           the end of the period that is specified in the most recent (if any) that has been given to the provider under section 57 of the TEQSA Act (which provides for TEQSA to notify a registered higher education provider about its decision to grant or refuse an application for renewal of accreditation).

 

The end timeframes above have effect subject to the provisos in subitem (4) which are as follows:

 

-           accreditation ends immediately if the provider ceases to be a registered higher education provider

-           subsection 56(3) of the TEQSA Act (where a registered higher education provider has applied to TEQSA for renewal of the accreditation of a course of study, accreditation is taken to continue until TEQSA makes its decision)

-           the application of Division 1 of Part 7 of the TEQSA Act (which is about cancelling accreditation and other administrative sanctions).

 

A note at the end of subitem (3) explains that the automatic accreditation may also be renewed by virtue of Division 4 of Part 4 of the TEQSA Act (which is about renewing accreditation).

 

A note at the end of subitem (4) explains that the accreditation may also end early under paragraph (b) of subitem 22(4) about TEQSA not lifting a suspension of the accreditation.

 

Subitem (5) explains that where subitem (3) applies for the accreditation of a course, this will apply instead of section 51 of the TEQSA Act (commencement and duration of accreditation) which would otherwise deal with the transition time and duration of accreditation.

 

Subitem (6) provides that subitems (2) and (3) have effect subject to Division 3 which deals with suspensions of automatic accreditations.

 

 

 

Division 2 - Pending review decisions about State accreditations

 

This Division mirrors the provisions in Division 2 of Part 2 as they relate to provider registration pending the outcome of a review.

 

 

Item 19 - Pending review decisions about State accreditations

 

This item deals with higher education providers who, as a result of a review decision would have had a course accredited under a State or Territory law, but for the enactment of the TEQSA Act. These providers will have these courses automatically accredited with TEQSA where they notify TEQSA of the result of the review of decision.

 

Subitem (1) provides that a course of study is taken to be accredited by TEQSA for the purposes of the TEQSA Act where before the transition time:

 

-           the provider has applied for a review of a decision by a registration authority, or

-           the period for applying for a review of a decision by a registration authority has not ended; and

-           the result of the review is that the course would (ignoring the enactment of the TEQSA Act) be an accredited course under a State or Territory law.

 

For a course to be accredited under this subitem, the provider must notify TEQSA, in the approved form, of the State or Territory review.

 

Note 1 at the end of the subitem clarifies that this automatic accreditation still means that the provider must comply with other relevant requirements under the TEQSA Act - such as complying with conditions that may be imposed from time to time on the course accreditation (as per section 52 of the TEQSA Act).

 

Note 2 at the end of the subitem clarifies that Division 2 of Part 4 of Schedule 3 does not apply to those providers authorised to self-accredit courses of study as that authority is automatically transferred under Item 12 of Schedule 3 ((the note also draws attention to paragraph 1(2)(c) of Schedule 3).

 

Subitem (2) deals with the duration of the accreditation where the course is accredited under subitem (1). The accreditation is for the period starting at the transition time and ending at the later of:

 

-           when the course of study would cease to be accredited under the relevant State or Territory law (ignoring the enactment of the TEQSA Act); and

-           the end of the period that is specified in the most recent (if any) that has been given to the provider under section 57 of the TEQSA Act (which provides for TEQSA to notify a registered higher education provider about its decision to grant or refuse an application for renewal of accreditation).

 

The end timeframes above have effect subject to the provisos in subitem (4) which are as follows:

 

-           accreditation ends immediately if the provider ceases to be a registered higher education provider

-           subsection 56(3) of the TEQSA Act (where a registered higher education provider has applied to TEQSA for renewal of the accreditation of a course of study, accreditation is taken to continue until TEQSA makes its decision)

-           the application of Division 1 of Part 7 of the TEQSA Act (which is about cancelling accreditation and other administrative sanctions).

 

 

Note 1 at the end of subitem (2) clarifies that if both Item 18 and Item 19 apply in relation to the course of study, its accreditation is for the period worked out under subitem 18(3).

 

Note 2 at the end of subitem (2) explains that the automatic accreditation may also be renewed by virtue of Division 4 of Part 4 of the TEQSA Act (which is about renewing accreditation).

 

Subitem (4) clarifies that subitem (2) applies to the accreditation, instead of section 51 of the TEQSA Act (commencement and duration of accreditation).

 

 

 

Division 3 - Suspended automatic TEQSA accreditations

 

In some cases, accreditation of a course of study which is automatically accredited under the TEQSA regime may have been suspended under the State or Territory law at the transition time - this Division will deal with this situation and also as to when the suspension will be lifted.

 

 

Item 20 - Automatic TEQSA accreditation is suspended

 

Subitem (1) provides that Division 3 will apply where, a course of study has been automatically accredited under Division 1 or 2 of Part 2 and, immediately before the transition time, accreditation of a course of study has been suspended by a registration authority under a State or Territory law.

 

Subitem (2) provides that, where this is the case, the course of study’s accreditation is suspended for a period of 120 days starting at the transition time.

 

Subitem 3 provides that such a suspension does not operate to prevent TEQSA from doing anything under this Bill or the TEQSA Act (once enacted) in relation to the accreditation.

 

 

Item 21 - Automatic lifting of suspension if pending review of State suspension

 

Where a provider has had a course of study suspended under item 20, the suspension of that accreditation will automatically be lifted where, before the transition time, the provider:

 

-           had applied to a State or Territory registration authority for a review of the decision; or

-           the period for applying for a review of decision by the registration authority has not ended; and

-           the review results (ignoring the enactment of the TEQSA Act) in the suspension by the State or Territory registration authority being lifted; and

-           the provider notifies TEQSA, in the approved form, of the State or Territory review decision within 60 days after the transition time (this could, for example, require the provider to supply TEQSA with satisfactory evidence of the State or Territory review decision - such as a certified copy of that decision).

 

The suspension is lifted on the day TEQSA receives notification of the State or Territory review decision in the approved form.  

 

 

Item 22 - Lifting suspension if no pending review of State suspension

 

Subitem 22(1) provides that, in all other cases which do not involve a review, TEQSA must decide whether to lift the suspension of the course of study’s automatic accreditation if:

 

-           the provider notifies TEQSA in the approved form and within 60 days after the transition time that Item 21 cannot apply for the suspension; or

-           the suspension is not lifted under Item 21 within the first 60 days after the transition time.

 

TEQSA must make the decision whether or not to suspend within 30 days of one of the above applying (subitem 22(2)).

 

Subitem 22(3) provides that, if TEQSA decides to lift the suspension, it must notify the provider in writing of this within 30 days after making that decision. A note at the end of subitem 22(2) clarifies that TEQSA may impose conditions under section 53 of the TEQSA A ct on the automatic TEQSA accreditation in return for lifting the suspension.

 

Subitem 22(4) provides that, if TEQSA decides not to lift the suspension, TEQSA must notify the provider of this in writing within 30 days, including providing the reasons for that decision, and the automatic accreditation will end on the day specified in the notice (which must be the day of the notice or a later date).

 

 

 

Division 4 - No inference that Standards met

 

 

Item 23 - No inference that Standards met

 

This Item provides that no inference is to be made from the automatic accreditation of a course that the course meets the Provider Accreditation Course Standards.

 

 



Part 5—Pending applications for State accreditation or re-accreditation

 

This Part deals with providers who have applied for accreditation or re-accreditation of a course of study with the relevant State or Territory authority but whose application has not been decided at the transition time.

 

In short, the application may be transferred to TEQSA for TEQSA to make a decision on accreditation under the TEQSA Act.

 

Item 24 - Deciding pending applications for State accreditation or re-accreditation

 

This Item provides that where, before the transition time, a higher education provider applies for accreditation or re-accreditation of a course of study under a State or Territory law and the application is not decided before the transition time and either the registration authority or the provider notifies TEQSA of the undecided application, TEQSA must make a decision under section 49 of the TEQSA Act to grant or reject the application.

 

That is, where TEQSA is notified of the existence of an application for accreditation or re-accreditation of a course of study under a State or Territory law, the application is transferred to TEQSA to complete the application.

 

 

Item 25 - TEQSA Act operates in a modified way for TEQSA’s consideration of the application

 

Where an application for accreditation or re-accreditation of a course of study is transferred to TEQSA under this Part, the TEQSA Act will necessarily operate in a modified way to allow for TEQSA’s consideration of the application. This item modifies the TEQSA Act for the purposes of considering an application transferred to TEQSA under this Part.

 

An application for accreditation is taken to have been made, as required under section 46 of the TEQSA Act, if and when TEQSA receives from the provider:

 

-           all information and documents that TEQSA requests about the application; and

-           so much of the fee determined under the TEQSA Act for a preliminary assessment under Part 4 of the TEQSA Act as TEQSA requires.

 

A table in subitem (3) further modifies the TEQSA Act for the purposes of this Part. This table provides that for the purposes of this Part:

 

-           a reference to the preliminary assessment fee contained in subsection 47(2) of the TEQSA Act means a reference to the required payment described in this Item; and

-           a reference to 12 months contained in section 49 of the TEQSA Act means 6 months.

 

This second point will have the effect of providing that TEQSA must make a decision on an application within 6 months of receiving it; or a longer period if determined by TEQSA under subsection 49(3) of the TEQSA Act.

 

 

Item 26 - Automatic transitional TEQSA accreditation while TEQSA considers pending application for re-accreditation

 

Where a provider has applied to an accreditation authority for re-accreditation of a course of study prior to the transition time and a decision is yet to be made on that re-accreditation after the transition time, this Item provides that the course is taken to be an accredited course for the purposes of the TEQSA Act for the period from the transition time until either:

 

-           TEQSA notifies the provider under section 50 of the TEQSA Act of a decision to grant or reject the application; or

-           the provider’s registration as a higher education provider ends; or

-           an earlier time, if decided by TEQSA under Division 1 of Part 7 of the TEQSA Act (which is about cancelling accreditation and other administrative sanctions).

 

Division 4 of Part 4 of the TEQSA Act (renewing accreditation) will not apply to an accreditation that exists because of Item 26.  In addition, a Note explains that a provider cannot make an application to TEQSA under the TEQSA Act for a transitional accreditation that exits by virtue of Item 26 to be renewed.

 

 Another note explains that automatic accreditation means, for example, that the provider must comply with any conditions imposed on course accreditation from time to time (see section 52 of the TEQSA Act).

 

Where a decision is made under this Item, it will apply to the accreditation instead of sections 50 (notifying providers about accreditation decisions) and section 51 (commencement and duration of accreditation) of the TEQSA Act.

 

 

Item 27 - Consequences if fees already paid to registration authority

 

This Item provides that, where a provider has paid a fee to the registration authority for the application for accreditation or re-accreditation of a course of study, TEQSA may waive all or part of any fee payable under the TEQSA Act for the application.

 



Part 6— Making the first Threshold Standards

 

 

Item 28 - Relevant Threshold Standards

 

Subitem 28(2) provides that the relevant standards are:

 

-           the Provider Registration Standards; and

-           the Provider Category Standards; and

-           the Provider Course Accreditation Standards; and

-           the Qualification Standards.

 

Subitem 28(1) provides that for each of the Threshold standards described above, Part 6 applies as if the Minister proposes to make standards of that kind under section 58 of the TEQSA Act and standards of that kind have not been previously made under that section.

 

 

Item 29 - Making the first of those Threshold Standards

 

Subitem (1) provides that for the first Threshold standards, subsections 58(3) and (4) of the TEQSA Act do not apply.

 

A note at the end of the subitem clarifies that subsections 58(3) and (4) will apply each subsequent time the Minister proposes to vary, revoke or remake those standards.

 

Subitem (2) provides that, before making the proposed standards, the Minister must consult and have regard to any representations received from the following parties about the proposed standards:

 

-           the Council consisting of the Ministers for the Commonwealth and each State and Territory responsible for higher education; and

-           the Minister who administers the Australian Research Council Act 2001 ; and

-           TEQSA; and

-           any other interested parties.

 

Subitem (3) provides that if the proposed standards are made, the Panel must start to review them within the first year of the Panel’s operation.



Part 7­-Audits

 

 

Item 30 - TEQSA is to complete AUQA audits etc.

 

In some cases, AUQA may have commenced or scheduled an audit of a higher education provider prior to the commencement of TEQSA. For the purposes of the HESA Act, this item will allow TEQSA to complete an audit AUQA had already commenced prior to section 3 of the TEQSA Act commencing (called the changeover time ) and to carry out any audits AUQA had, prior to the changeover time, scheduled to carry out during 2011 or 2012 (subitem 30(1)).

 

If, before the changeover time, AUQA has done something in relation to an audit covered by subitem 30(1) then, for the purposes of the HESA Act, that thing is taken, after the commencement time, to have been done by TEQSA (subitems 30(2) and (3)).  The Minister may, however, determine in writing (including by making an instrument), that this will not apply to something specific done by AUQA (subitem 30 (5)).  Subitem 30(6) provides that such a determination is not a legislative instrument.  This provision is included to assist readers as the instrument would not be a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 .

 

Subitem (7) clarifies that  TEQSA may carry out a quality assessment or compliance assessment of a registered higher education provider at any time, even if this item applies to the provider.

Item 30 makes it clear that TEQSA can ‘stand in the shoes’ of AUQA in respect of things AUQA has done under sections 19-25 and 19-27 of the HESA Act for audits commenced but not completed before the changeover time.



Part 8—Review of decisions

 

 

Item 31 - Rights of review of certain decisions

 

This item lists the decisions in Schedule 3 of this Bill which are reviewable under Part 10 of the TEQSA Act. These are:

 

-           a decision under subitems 3(3), 5(1), 10(3) or 16(3) about the provider category in which a higher education provider will be registered;

-           a decision under subitem 8(1) not to lift a suspension of a higher education provider’s registration;

-           a decision under subitems 10(3) or 16(3) that a higher education provider cannot self-accredit one or more courses of study;

-           a decision  under items 17 or 27 to refuse to waive all or part of a fee; and

-           a decision under subitem 22(1) not to lift a suspension of a course of study’s accreditation.

 

A note explains that Part 10 of the TEQSA Act would also allow for review of TEQSA’s decisions under the TEQSA Act relating to Schedule 3 of this Bill - including rights to seek internal review and review by the Administrative Appeals Tribunal.



Part 9—Transfer of records

 

 

Item 32 - Transferring records to TEQSA

 

This item provides that TEQSA may request State and Territory registration authorities to give TEQSA copies of records and documents relating to higher education providers to whom Schedule 3 applies that are in the registration authorities’ custody before or after the transition time. It is open to, but not mandatory for, the registration authorities to comply with TEQSA’s request.



Part 10 Miscellaneous

 

 

Item 33 - Transitional regulations

 

Item 33 allows the Governor-General to make regulations which prescribe transitional matters relating to the enactment of the TEQSA Act or the amendments or repeals made by this Bill.