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Tertiary Education Quality and Standards Agency Amendment Bill 2019

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2019

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

 

 

SENATE

 

 

 

 

 

 

 

 

Tertiary Education Quality and Standards Agency Amendment Bill 2019

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Education,

the Honourable Dan Tehan MP)



Tertiary Education Quality and Standards Agency Amendment Bill 2019

 

OUTLINE

 

The purpose of the Tertiary Education Quality and Standards Agency Amendment Bill 2019 ( the Bill ) is to amend the Tertiary Education Quality and Standards Agency Act 2011 ( TEQSA Act ) to give effect to the Government’s decision to implement recommendations arising from the Review of the impact of the TEQSA Act on the higher education sector ( the Review ).

 

The Review was conducted in line with section 203 of the TEQSA Act, which requires that the Minister must, before 1 January 2016, cause a review to be started of the impact on the higher education sector of the TEQSA Act.

 

Overall the Review was positive about the move to a single national regulator in 2012, finding that the Act is operating effectively and as intended. The Review did not recommend changes that would significantly alter the regulatory framework established by the TEQSA Act.

 

The Review recommended some amendments to the TEQSA Act that are designed to improve the Act’s administration, strengthen TEQSA’s regulatory role and better reflect the evolution of the role of the Higher Education Standards Panel ( the Panel ) as the statutory advisory body established under the Act. Other non-legislative recommendations were made to improve the function and efficiency of TEQSA.

 

The Bill gives effect to the Review recommendations that require amendments to the TEQSA Act. The measures contained in Schedule 1 will:

 

·          simplify the legislative framing of the Higher Education Standards Framework by removing references to specific categories of non-threshold standards (the Teaching and Learning Standards, the Research Standards and the Information Standards) that have never been made and are not needed, but retain the capacity to make additional standards if the need arises

·          remove references to “the Research Minister” (i.e. the Minister responsible for the Australian Research Council Act 2001 ) in provisions that relate to appointments and acting appointments of TEQSA Commissioners and Panel members and to functions of the Panel; and require that advice on new standards need only be sought from “the Research Minister” if “the Minister” is not also “the Research Minister”

·          require TEQSA to advise the Minister and the Panel before it undertakes a quality review, under section 60 of the TEQSA Act, that could have an impact on a majority of higher education providers, which will remove the need for restrictions currently placed on such assessments by Ministerial Direction No.2 of 2013

·          provide that an overseas university, not registered by TEQSA, can offer a course of study that is not wholly or mainly provided from Australian premises and use the word “university” to represent its operations without committing an offence

·          amend quorum requirements for TEQSA meetings to be a majority of Commissioners

·          expand the skillset that the Minister must ensure is encompassed by Panel members and expand the functions of the Panel to more appropriately reflect its role to provide oversight of TEQSA’s strategic and operational planning and approaches to deregulation

·          provide that it is an exception to the offence of unauthorised disclosure or use of information if the entity the information relates to has consented in writing to the disclosure or use

·          allow TEQSA to disclose higher education information to officers in the Department in addition to the Secretary and to also disclose personal information that relates to TEQSA’s functions to the Minister, a member of staff of the Minister, the Secretary or to officers in the Department

·          allow TEQSA to disclose information for research purposes

·          allow TEQSA to disclose information to a complainant in relation to a complaint without the consent of the body to which the information applies (noting that TEQSA will still be subject to common law principles of natural justice and procedural fairness in determining whether such the disclosure is appropriate).

 



FINANCIAL IMPACT STATEMENT

 

 

 

There is no financial impact associated with the Bill.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

 

Prepared in accordance with Part 3 of the Human Rights

(Parliamentary Scrutiny) Act 2011

 

Tertiary Education Quality and Standards Agency Amendment Bill 2019

 

The Tertiary Education Quality and Standards Agency Amendment Bill 2019 ( the Bill ) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

 

The purpose of the Bill is to amend the Tertiary Education Quality and Standards Agency Act 2011 ( TEQSA Act ) to give effect to the Government’s decision to implement recommendations arising from the Review of the impact of the TEQSA Act on the higher education sector ( the Review ).

 

The Review was conducted in line with section 203 of the TEQSA Act, which requires that the Minister must, before 1 January 2016, cause a review to be started of the impact on the higher education sector of the TEQSA Act.

 

Overall the Review was positive about the move to a single national regulator in 2012, finding that the Act is operating effectively and as intended. The Review did not recommend changes that would significantly alter the regulatory framework established by the TEQSA Act.

 

The Review recommended some amendments to the TEQSA Act that are designed to improve the Act’s administration, strengthen TEQSA’s regulatory role and better reflect the evolution of the role of the Higher Education Standards Panel ( the Panel ) as the statutory advisory body established under the Act. Other non-legislative recommendations were made to improve the function and efficiency of TEQSA.

 

The Bill gives effect to the Review recommendations that require amendments to the TEQSA Act. The measures contained in Schedule 1 will:

 

·          simplify the legislative framing of the Higher Education Standards Framework by removing references to specific categories of non-threshold standards (the Teaching and Learning Standards, the Research Standards and the Information Standards) that have never been made and are not needed, but retain the capacity to make additional standards if the need arises

·          remove references to “the Research Minister” (i.e. the Minister responsible for the Australian Research Council Act 2001 ) in provisions that relate to appointments and acting appointments of TEQSA Commissioners and Panel members and to functions of the Panel; and require that advice on new standards need only be sought from “the Research Minister” if “the Minister” is not also “the Research Minister”

·          require TEQSA to advise the Minister and the Panel before it undertakes a quality review, under section 60 of the TEQSA Act, that could have an impact on a majority of higher education providers, which will remove the need for restrictions currently placed on such assessments by Ministerial Direction No.2 of 2013

·          provide that an overseas university, not registered by TEQSA, can offer a course of study that is not wholly or mainly provided from Australian premises and use the word “university” to represent its operations without committing an offence

·          amend quorum requirements for TEQSA meetings to be a majority of Commissioners

·          expand the skillset that the Minister must ensure is encompassed by Panel members and expand the functions of the Panel to more appropriately reflect its role to provide oversight of TEQSA’s strategic and operational planning and approaches to deregulation

·          provide that it is an exception to the offence of unauthorised disclosure or use of information if the entity the information relates to has consented in writing to the disclosure or use

·          allow TEQSA to disclose higher education information to officers in the Department in addition to the Secretary and to also disclose personal information that relates to TEQSA’s functions to the Minister, a member of staff of the Minister, the Secretary or to officers in the Department

·          allow TEQSA to disclose information for research purposes

·          allow TEQSA to disclose information to a complainant in relation to a complaint without the consent of the body to which the information applies (noting that TEQSA will still be subject to common law principles of natural justice and procedural fairness in determining whether such the disclosure is appropriate).

 

Analysis of human rights implications

 

The Bill engages the following human rights:

 

·          the right to work - Articles 6 and 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)

·          the right to education - Article 13 of the ICESCR

·          the right to privacy and reputation - Article 17 of the International Covenant on Civil and Political Rights (ICCPR).

 

Right to work

 

The Bill engages the right to work which is set out in Article 6 of the ICESCR. Article 6(1) recognises that the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and that states will take appropriate steps to safeguard this right. The Bill also engages the right to just and favourable conditions of work contained in Article 7 of the ICESCR, including rights to safe and healthy working conditions and equal opportunity for advancement.

 

The Bill expands the role of the Panel to include provision of advice and recommendations to TEQSA beyond matters relating to the Higher Education Standards Framework (including on TEQSA’s strategic objectives, corporate planning, streamlining of activities and approaches to deregulation). The Bill will also ensure that Panel members collectively have contemporary experience in the provision of higher education across the sector, which will potentially provide for a more diverse membership.

 

This Bill is compatible with the right to work as these amendments will ensure that the Panel’s experience and breadth of membership are sufficient to carry out its oversight and advisory roles, and provide greater assurance for the sector that the Panel can provide balanced and timely advice on emerging issues in higher education. The amendment to the composition of the Panel may also provide opportunities for a broader pool of individuals to become members in future.

 

Right to education

 

The Bill engages the right to education which is set out in Article 13 of the ICESCR.

The right to education recognises the important personal, societal, economic and intellectual benefits of education.

 

The Bill requires that TEQSA inform the Minister and the Panel before it undertakes a sector-wide quality review under section 60 of the TEQSA Act, to ensure that the resource implications of such activity and the regulatory burden it would create for providers are considered before undertaking such a review. The Bill also makes a number of essentially technical amendments, including to allow delegation of functions, sharing of higher education information in certain circumstances, and clarifying quorum arrangements for meetings of the TEQSA Commissioners.

 

The Bill is compatible with the right to education because, in combination, these amendments will allow TEQSA to carry out its regulatory and quality assurance roles more effectively and efficiently. This will enable higher education providers to continue to focus on delivering the highest quality teaching, learning and research, and maximise the quality of educational outcomes for students with the least necessary regulatory burden from TEQSA’s operations.

 

Right to privacy and reputation

 

This Bill engages with Article 17(1) and 17(2) of the International Covenant on Civil and Political Rights (ICCP), which states that “no one shall be subject to arbitrary or unlawful interference with his privacy…nor to unlawful attacks on his honour and reputation” and that “everyone has the right to the protection of the law against such interference or attacks”.

 

The right to privacy under Article 17 can be permissibly limited in order to achieve a legitimate objective and where the limitations are lawful and not arbitrary. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the particular circumstances.

 

The Bill will allow TEQSA to disclose personal information (within the meaning of the Privacy Act 1988 ), where the information relates to a regulated entity, is obtained by TEQSA and relates to TEQSA's functions and disclosure is limited to the Minister, the Minister’s staff, the Secretary and the Department for the purpose of administering laws relating to higher education.

 

The amendment is necessary for TEQSA to provide personal information for the purposes of ‘fit and proper person’ requirements to the Minister and Secretary (see sections 16-25 and 22-17 of the Higher Education Support Act 2003 ( HESA ). This information is an attachment to many of TEQSA’s application forms and similar information is also provided to TEQSA in ‘notifications of material change’. All of the relevant declarations concerning this information require the signature of the person providing the information. In addition, TEQSA’s application forms and guidelines include a privacy notice informing individuals that TEQSA is obliged to protect personal information in accordance with the Privacy Act (as indeed are the Minister, the Minister’s staff, the Secretary and staff of the Department) and that personal information is collected in order to check an applicant’s suitability to be a higher education provider and to assess compliance with relevant legislation that TEQSA enforces. In addition, the privacy notices explain that TEQSA usually discloses personal information it collects for these purposes to Commonwealth agencies responsible for the regulation of education.

 

The amendment also aligns with the information sharing powers in section 180-15 of HESA, which provides that the Secretary may disclose Higher Education Support Act information (which includes personal information within the meaning of the Privacy Act) to TEQSA or to a TEQSA staff member (within the meaning of the TEQSA Act) - for the performance of duties or functions, or the exercise of powers, under, or for the purposes of, the TEQSA Act.

 

The Bill is compatible with the right to privacy in that the amendment which limits this right, provides for the disclosure of personal information only in a narrow range of circumstances and for a reasonable purpose. Therefore the limitation of the right to privacy is justifiable, reasonable and proportionate to the policy objective of ensuring the quality of providers, and thereby protecting students and Australia’s international reputation for having a high quality higher education sector.

 

Conclusion

 

The Bill is compatible with human rights because it advances the protection

of human rights in the delivery of higher education in Australia. To the extent that it may limit human rights, these limitations are reasonable, necessary, and proportionate.

 



Tertiary Education Quality and Standards Agency Amendment Bill 2019

 

NOTES ON CLAUSES

 

Clause 1 - Short title

 

This clause provides for the Act to be the Tertiary Education Quality and Standards Agency Amendment Act 2019.

 

Clause 2 - Commencement

 

The table in subclause 2(1) sets out when the Act’s provisions will commence. The table provides that the whole of the Act will commence the day after the Act receives the Royal Assent.

 

Subclause 2(2) provides that information in column 3 of the table at subclause 2(1) is not part of the Act and information may be inserted into column 3 or information in it may be edited in any published version of the Act.

 

Clause 3 - Schedules

 

This clause provides that any legislation 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.

 

 

 

List of abbreviations

 

HESA                         Higher Education Support Act 2003

Panel                         Higher Education Standards Panel

TEQSA                       Tertiary Education Quality and Standards Agency

TEQSA Act                Tertiary Education Quality and Standards Agency Act 2011

 

 

 

 

 

 

 

 

 

 



 

Schedule 1   Amendments     

 

Summary

 

The amendments contained in this schedule give effect to those recommendations from the Review of the impact of the TEQSA Act on the higher education sector that require a legislative response (as outlined in the Government’s response to the Review). The amendments will enhance the operation of the TEQSA Act and the functioning of TEQSA, more clearly define the role of the Panel, and ensure the Panel collectively has the appropriate mix of skills for its advisory and oversight functions.

 

Detailed explanation

 

 

Tertiary Education Quality and Standards Agency Act 2011

 

 

Items 1 to 6 - Higher Education Standards Framework amendments

 

Section 5 of the TEQSA Act defines the Higher Education Standards Framework as meaning the following standards:

 

·          the Provider Standards (comprised of the Provider Registration Standards; the Provider Category Standards; and the Provider Course Accreditation Standards)

·          the Qualification Standards

·          the Teaching and Learning Standards

·          the Research Standards

·          the Information Standards

·          any other standards made under paragraph 58(1)(h).

 

Section 5 also defines the Research Standards as the Research Standards that are made under subsection 58(2).

 

Subsection 58(1) provides that the Minister may, by legislative instrument, make the following standards that, together with the Research Standards (that can be made by the Research Minister under subsection 58(2)), make up the Higher Education Standards Framework:

 

·          the Provider Registration Standards

·          the Provider Category Standards

·          the Provider Course Accreditation Standards

·          the Qualification Standards

·          the Teaching and Learning Standards

·          the Information Standards

·          any other standards against which the quality of higher education can be assessed.

 

The three types of Provider Standards (Provider Registration Standards, Provider Category Standards and Course Accreditation Standards) and the Qualification Standards together make up the ‘ Threshold Standards ’ (see the definition of that term in section 5). These threshold standards set the minimum acceptable requirements for the provision of higher education.

 

Only the four Threshold Standards have ever been made. The Teaching and Learning Standards, the Information Standards and the Research Standards are, in effect, non-threshold standards and no legislative instruments have been made with respect to such non-threshold standards. TEQSA’s regulatory role only involves the application of the Threshold Standards; in detailing the regulatory requirements under the TEQSA Act, no reference to any non-threshold standards is made.

 

The Higher Education Standards Framework (Threshold Standards) 2015 (F2015L01639) legislative instrument was made by the Minister under subsection 58(1) of the TEQSA Act, following an extensive review of the inaugural 2011 standards. The revised framework is organised into seven ‘domains’. These domains deal with the issues of teaching and learning, research and information to the extent necessary for ‘threshold’ approval to operate in Australia (as did the previous 2011 Threshold Standards).

 

Reference to these specific non-threshold standards in the TEQSA Act is now unnecessary. Repealing them will simplify the legislative framing of the Higher Education Standards Framework.

 

Capacity to make additional standards, if needed, will be retained. The definition of Higher Education Standards Framework will still encompass any additional non-threshold standards that may be made in the future under paragraph 58(1)(h). This retains flexibility and would enable the Minister to make additional standards to respond to any emerging quality-related issues in the future; or, for example, if it were felt appropriate to incorporate aspirational standards or objectives in some areas that are higher than the Threshold Standards required for initial registration.

 

This simplification will be achieved as follows:

 

Item 1 amends the section 5 definition of Higher Education Standards Framework to remove reference to the Teaching and Learning Standards, the Research Standards and the Information Standards (by repealing paragraphs (c) to (e) of the definition).

 

Item 2 repeals the definition of Research Standards in section 5.

 

Item 3 makes a minor consequential amendment to the heading of subsection 58(1) so that it reads ‘Making the standards’ (instead of ‘Making the standards (other than the Research Standards)’).

 

Item 4 amends subsection 58(1) to omit the words “, together with the Research Standards”.

 

Item 5 repeals paragraphs 58(1)(f) and (g) to remove reference to the Teaching and Learning Standards and the Information Standards.

 

Item 6 repeals subsection 58(2).

 

 

Items 7 to 12, 16, 17, 21, 22, 23 and 25 - Research Minister amendments

 

The Research Minister is defined in section 5 of the TEQSA Act as meaning the Minister administering the Australian Research Council Act 2001 .

 

The reference to a separate Research Minister is somewhat outdated as, currently, the Administrative Arrangements Order provides that the same Minister administers both the TEQSA Act and also the Australian Research Council Act 2001 . It is also usual practice for an Act to simply refer to ‘Minister’ rather than to a specific Minister - whereby the identity of the relevant administering Minister can be ascertained by referring to the latest Administrative Arrangements Order as made by the Governor-General from time to time.

 

In addition, paragraph 5.23 of the Legislation Handbook provides that it is generally not appropriate to place a statutory obligation on the Minister or Department administering an Act to consult with other Ministers or Departments. It is also a clear expectation, and a matter of good practice, for a minister exercising a power under an Act to consult appropriately with, and take into account the views of any other minister with an interest in the issue in question, meaning there is no practical need for a statutory obligation to do so.

 

Apart from the section 5 definition, there are references to the Research Minister in the following sections of the TEQSA Act:

 

·          section 58 (making the Higher Education Standards Framework)

·          section 138 (appointment of Commissioners)

·          section 147 (acting appointments)

·          section 167 (constitution of TEQSA)

·          section 168 (functions of TEQSA)

·          section 170 (appointment of Panel members).

 

Most of these provisions relevantly concern a requirement for the Minister to consult with the Research Minister - removing these references is consistent with the Legislation Handbook .

 

Items 7, 8, 10, 11, 16, 17, 20, 21, 22, 23 and 25 amend these provisions so that the relevant requirements relate simply to the Minister - removing references to the Research Minister, consistent with the Legislation Handbook .

 

There are, however, two instances where references to the Research Minister still need to be retained with respect to subsections 58(3) and 58(4). Section 58 provides for the making of the Higher Education Standards Framework, which underpins the key functions of TEQSA to register and re-register higher education providers, and accredit and re-accredit higher education courses of study. The making of standards under section 58 goes to the heart of TEQSA’s regulatory functions. Given that the standards address matters impacting both research and research training, this action is of sufficient importance to justify the retention of a statutory obligation to consult with the Research Minister, if the Research Minister is not also the Minister responsible for the TEQSA Act at the time new standards are developed.

 

Item 9 amends subparagraph 58(3)(b)(ii) so that it provides that the Minister must not make a standard under section 58 unless the Panel has prepared a draft and the Minister has consulted with the state and territory ministers for education, TEQSA and, if the Minister is not also the Research Minister, the Research Minister.

 

Item 12 amends subparagraph 58(4)(b)(ii) so that, before the Minister makes a standard under section 58, the Minister must have regard to the draft prepared by the Panel and any advice or recommendations given by the Panel, state and territory ministers for education, TEQSA and, if the Minister is not also the Research Minister, the Research Minister.

 

 

Items 13 and 14 - Section 60 - Quality (including thematic) assessments

 

Under section 60 of the TEQSA Act, TEQSA may undertake quality assessments of higher education providers (including thematic assessments) to assess:

 

·          the level of quality of higher education provided

·          whether there are any systemic issues relating to a particular course of study that leads that a particular regulated higher education award

·          the level of quality of, or any systemic issues relating to courses of study that lead that regulated higher education awards.

 

Item 14 amends section 60 to add a new subsection 60(2) which will require TEQSA, at least 60 days before starting a review or examination that could have an impact on a majority of higher education providers, to give written notice to both the Minister and the Panel.

 

Item 13 makes a consequential numbering amendment to section 60 (to number the current text as subsection 60(1)).

 

On commencement of this Act (following passage by Parliament and Royal Assent), it is intended that the current restriction on TEQSA’s capacity to undertake sector-wide quality reviews under section 60 only if it “has surplus resources after fully achieving” its regulatory activities, which is set out in Clause 4(ii) of Ministerial Direction No. 2 of 2013 , will be lifted by repeal of the Direction.

 

 

Item 15 - Subparagraphs 108(1)(a)(ii) and (2)(a)(ii) - Use of the “university” title by overseas universities

 

Subsection 108(1) provides that a regulated entity commits an offence if it is not a registered higher education provider that is registered in a provider category that allows the use of the word “university” and it uses the word “university” to represent itself or its operations as a university in relation to:

 

·          an Australian course of study (subparagraph 108(1)(a)(i))

·          an overseas course of study to the extent that the course of study is or is to be provided from Australian premises related to an overseas higher education award (subparagraph 108(1)(a)(ii))

·          a regulated higher education award (subparagraph 108(1)(a)(iii).

 

Subsection 108(2) provides that a regulated entity is liable for a civil penalty if it is not a registered higher education provider that is registered in a provider category that allows the use of the word “university” and it uses the word “university” to represent itself or its operations as a university in relation to:

 

·          an Australian course of study (subparagraph 108(2)(a)(i))

·          an overseas course of study to the extent that the course of study is or is to be provided from Australian premises related to an overseas higher education award (subparagraph 108(2)(a)(ii))

·          a regulated higher education award (subparagraph 108(2)(a)(iii)).

 

There is currently a misalignment between the provisions in relation to an overseas course of study in subparagraphs 108(1)(a)(ii) and 108(2)(a)(ii) and the sections of the TEQSA Act that define who can apply for registration as a higher education provider. This could result in an overseas university committing an offence, or being liable for a civil penalty, if it were legitimately operating in Australia without registration when, in fact, it is not capable of being registered.

 

This situation could arise where an overseas university offers an experience component for one of its courses within Australia, and uses the word “university” in promotional or administrative materials within Australia, but it is not capable of being registered as a provider under the TEQSA Act, because the component offered does not meet the definition of a regulated higher education award in section 6 of the TEQSA Act. This definition includes “an overseas higher education award offered or conferred for the completion of an overseas course of study” but is limited to courses provided “wholly or mainly” from Australian premises.

 

This item addresses this concern by inserting the words “wholly or mainly” after the word “provided” in subparagraphs 108(1)(a)(ii) and (2)(a)(ii), meaning that an overseas university would not be subject to the penalty provisions if it is not purporting to deliver a course “wholly or mainly” in Australia.

 

 

Item 18 - Subsection 149(3) - Quorum

 

Section 149 of the TEQSA Act concerns the conduct of meetings of TEQSA. Currently subsection 149(3) provides that the required quorum for meetings is 2 commissioners. Item 18 changes this to ‘a majority of Commissioners’.

 

Given up to five Commissioners in total may be appointed, the current provision could see a minority of Commissioners be deemed a quorum if four or five commissioners have been appointed. The amendment brings TEQSA’s quorum provision in line with those of other Commonwealth statutory entities.

 

 

Item 19 - After paragraph 167(2)(a) - Panel appointments

 

Subsection 167(2) of the TEQSA Act concerns the matters the Minister must take into account when appointing members of the Panel.

 

This item inserts a new paragraph 167(2)(aa) to require the Minister to ensure Panel members collectively have contemporary experience in the provision of higher education by higher education providers that are both universities and non-universities. Ensuring that Panel members have contemporary experience across the entirety of the sector is important for both its oversight and advisory roles, to ensure any advice provided is balanced and reflects understanding of issues relevant to different provider types.

 

 

Item 24 - At the end of subsection 168(1) - Role of the Panel

 

Subsection 168(1) of the TEQSA Act sets out the functions of the Panel.

 

Item 24 broadens those functions by adding a new paragraph 168(1)(c) which provides that the Panel also has the function of providing advice and recommendations to TEQSA (either of its own initiative, or at the request of TEQSA) about the following:

 

·          TEQSA’s strategic objectives, corporate plan (and performance against the plan), reform agenda, streamlining of activities and resourcing requirements

·          approaches to deregulation - including the application of principles relating to regulatory necessity, risk, and proportionality in relation to the different types of higher education providers.

 

This amendment ensures the TEQSA Act appropriately reflects the full functions of the Panel, including those which were previously given to the TEQSA Advisory Council by virtue of Ministerial Direction No. 2 of 2013 , but passed to the Panel when the two bodies were amalgamated in 2015.

 

 

Items 26 to 30 - Information sharing

 

 

Item 26 - At the end of section 188 - Disclosure with consent of the entity concerned

 

Subsection 188(1) of the TEQSA Act provides that a person commits an offence if he or she is an entrusted person (within one of the listed categories of entrusted person) who has obtained higher education information by virtue of being an entrusted person and then discloses it to another person, or uses the information.

 

Subsection 187(2) provides that subsection 187(1) does not apply in the following circumstances:

 

·          when the disclosure or use is for the purposes of the TEQSA Act or the Education Services for Overseas Students Act 2000

·          when the disclosure or use is otherwise connected with the performance of duties as an entrusted person

·          when the disclosure or use is required or authorised by or under a Commonwealth or state or territory law.

 

Item 26 adds a new subsection 187(3) to provide that subsection 187(1) will also not apply in circumstances where an entity regulated by TEQSA consents in writing to the disclosure or use of higher education information that relates to that entity.

 

The Review notes that the proposed amendment was tested with a small number of providers and peak bodies and no concerns were raised, given consent is required from providers prior to disclosure or use of relevant information by TEQSA.

 

A Note to new subsection 188(3) explains that a defendant will bear an evidential burden in relation to a subsection 187(3) matter (see subsection 13.3(3) of the Criminal Code ).

 

 

Item 27 - Section 192 - Disclosure to officers of the Department and disclosure of personal information

 

Section 192 of the TEQSA Act provides that TEQSA may disclose higher education information to the Minister, a person employed as a member of the Minister’s staff (under sections 13 or 20 of the Members of Parliament (Staff) Act 1984 ) or the Secretary for the purpose of administering laws relating to higher education.

 

This item repeals and substitutes section 192.

 

Under new section 192, for the purpose of administering laws relating to higher education, TEQSA may disclose the following information to: (1) the Minister; (2) a person employed as a member of the Minister’s staff (under sections 13 or 20 of the Members of Parliament (Staff) Act); (3) the Secretary; or (4) an APS employee of the Department:

 

·          higher education information

·          information relating to a regulated entity that is obtained by TEQSA, that relates to TEQSA’s functions and is personal information within the meaning of the Privacy Act.

 

The amendment provides for TEQSA to disclose personal information (within the meaning of the Privacy Act), where the information relates to a regulated entity, is obtained by TEQSA and relates to TEQSA's functions and is for the purpose of administering laws relating to higher education.

 

The amendment is necessary for TEQSA to provide personal information for the purposes of ‘fit and proper person’ requirements to the Minister and Secretary (see sections 16-25 and 22-17 of HESA). This information is an attachment to many of TEQSA’s application forms and similar information is also provided to TEQSA in ‘notifications of material change’. All of the relevant declarations concerning this information require the signature of the person providing the information. In addition, TEQSA’s application forms and guidelines include a privacy notice informing individuals that TEQSA is obliged to protect personal information in accordance with the Privacy Act (as indeed are the Minister, the Minister’s staff, the Secretary and staff of the Department) and that personal information is collected in order to check an applicant’s suitability to be a higher education provider and to assess compliance with relevant legislation that TEQSA enforces. In addition, the privacy notices explain that TEQSA usually discloses personal information it collects for these purposes to Commonwealth agencies responsible for the regulation of education.

 

The amendment also broadens the section 192 disclosure powers by enabling TEQSA to disclose higher education and personal information to staff of the Department as well as the Secretary. TEQSA already has capacity to disclose higher education information to employees of the Department under section 194. Inclusion of the Department in section 192 will facilitate the efficient administration of any sharing of personal information necessary to manage ‘fit and proper person’ requirements or other matters relating to higher education.

 

The amendment also aligns with the information sharing powers in section 180-15 of HESA, which provides that the Secretary may disclose Higher Education Support Act information (which includes personal information within the meaning of the Privacy Act) to TEQSA or to a TEQSA staff member (within the meaning of the TEQSA Act) - for the performance of duties or functions, or the exercise of powers, under, or for the purposes of, the TEQSA Act.

 

 

Item 28 - After section 195 - Disclosure for research purposes and disclosure to a complainant

 

This item inserts new sections 195A (disclosure of information to other persons) and 195B (disclosing information to complainants) into the TEQSA Act.

 

New subsection 195A(1) provides that TEQSA may disclose higher education information (see the definition of higher education information in section 5) to a person referred to in new subsection 195A(3) for the purpose of research relating to providing higher education - including research relating to quality assurance, or to planning the provision of higher education.

 

New subsection 195A(2) provides that where the higher education information in question was provided by a regulated entity, then TEQSA can only disclose it under new subsection 195A(1) if the entity consents in writing.

 

New subsection 195A(3) provides that the following are persons for the purposes of new subsection 195A(1):

 

·          a person employed or engaged by a higher education provider

·          a person employed or engaged by a body that has been determined in an instrument made under new subsection 195A(4).

 

New subsection 195A(4) enables TEQSA, by a disallowable legislative instrument to determine a body for the purposes of new paragraph 195A(3)(b).

 

New section 195A will enable information sharing for research purposes in line with disclosure provisions in  HESA (section 180-25). It will provide TEQSA with more flexibility to use such information to generate insights through research. The new section also strengthens TEQSA’s capacity to perform advisory, data analysis, and training functions related to the quality and regulation of higher education, as outlined at paragraphs 134(1)(d) to (j) of the TEQSA Act.

 

New section 195B will enable TEQSA to disclose higher education information to a person where:

 

·          the person has made a complaint to TEQSA about a regulated entity’s compliance with the TEQSA Act or the ESOS Act (including any legislative instruments made under either of these Acts)

·          TEQSA is satisfied that the information to be disclosed relates to the subject matter of the complaint.

 

Currently TEQSA can publish such information - see sections 196 (disclosing information to the public) and 198 (National Register of higher education providers) - but it cannot disclose the information to individual complainant students. New section 195B will improve TEQSA’s capacity to respond appropriately to complainants, even when the entity concerned may not consent to the release of the information. Any decision to disclose will remain subject to principles of natural justice, including an opportunity for an affected entity to make a case for non-disclosure and for any such concerns to be considered by TEQSA before a disclosure is made.

 

 

Items 29 and 30 - Section 197 - National security information

 

Section 197 of the TEQSA Act provides that TEQSA may not exercise its powers to disclose higher education information where the information concerned is national security information (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 ).

 

Items 29 and 30 make consequential amendments to section 197 of the TEQSA Act to insert reference to new sections 195A (which provides that TEQSA may disclose higher education information for the purpose of research) and 195B (which provides that TEQSA may disclose higher education information to a complainant). Section 197 will therefore provide that paragraph 192(1)(d) and sections 193, 194, 195, 195A, 195B and 196 do not apply to national security information

 

 

Item 31 - Application provisions

 

Subitem 31(1) provides that the amendments made to section 108 of the TEQSA Act (see item 15) apply in relation to uses of the word ‘university’ on or after the commencement of item 31 (i.e. the day after this Bill, once enacted, receives the Royal Assent).

 

Subitem 31(2) provides that the amendment made to section 149 of the TEQSA Act (see item 18) applies in relation to meetings held on or after the commencement of item 31 (i.e. the day after this Bill, once enacted, receives the Royal Assent).

 

Subitem 31(3) provides that the amendments made to section 167 of the TEQSA Act (see items 19 to 21) apply in relation to appointments made on or after the commencement of item 31 (i.e. the day after this Bill, once enacted, receives the Royal Assent).

 

Subitem 31(4) provides that the amendments made to section 188 of the TEQSA Act (see item 26) apply in relation to the disclosure or use of higher education information on or after the commencement of item 31 (i.e. the day after this Bill, once enacted, receives the Royal Assent).

 

Subitem 31(5) provides that the repeal and substitution of section 192 of the TEQSA Act (see item 27) applies in relation to the disclosure of information on or after the commencement of item 31 (i.e. the day after this Bill, once enacted, receives the Royal Assent).

 

Subitem 31(6) provides that new sections 195A and 195B of the TEQSA Act (see item 28) apply in relation to the disclosure of higher education information on or after the commencement of item 31 (i.e. the day after this Bill, once enacted, receives the Royal Assent) - whether the information was obtained before, on or after that commencement.