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Education Legislation Amendment (2021 Measures No. 1) Bill 2021



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BILLS DIGEST NO. 51, 2020-21 23 FEBRUARY 2021

Education Legislation Amendment (2021 Measures No. 1) Bill 2021 Dr Hazel Ferguson Social Policy Section Emily Gibson Science, Technology, Environment and Resources Section

Contents

Purpose of the Bill ........................................................... 3

Background ..................................................................... 3

The Australian Research Council ................................. 3

The University of Notre Dame Australia ..................... 4 Teaching .................................................................... 4

Research .................................................................... 5

Committee consideration ................................................ 7

Senate Standing Committee for Selection of Bills ...... 7 Policy position of non-government parties/independents...................................................... 7

Position of major interest groups..................................... 7

Financial implications ...................................................... 8

Schedule 1 ................................................................... 8

Schedule 2 ................................................................... 8

Statement of Compatibility with Human Rights................ 8

Parliamentary Joint Committee on Human Rights ..... 8 Key issues and provisions ................................................ 8

Schedule 1—Research amendments .......................... 8

Schedule 2—Education amendments ......................... 9

The effect of moving the UNDA from Table B to Table A ....................................................................... 9

Funding .................................................................... 9

Regulation and administrative arrangements ...... 11 Policy implications ................................................... 11

Application, saving and transitional provisions ...... 13 Concluding comments ................................................... 13

Date introduced: 3 February 2021

House: House of Representatives

Portfolio: Education, Skills and Employment

Commencement: The day after the Act receives Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at February 2021.

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Education Legislation Amendment (2021 Measures No. 1) Bill 2021 2

Appendix 1: Higher Education Support Act 2003—listed providers at February 2021 ................. 14 Appendix 2: key higher education funding program eligibility under HESA at February 2021..... 16

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Education Legislation Amendment (2021 Measures No. 1) Bill 2021 3

Purpose of the Bill The purpose of the Education Legislation Amendment (2021 Measures No. 1) Bill 2021 (the Bill) is to:

• amend the Australian Research Council Act 2001 (ARC Act) to apply indexation to the appropriation amounts for approved research programs for the three financial years starting 1 July 2020 to 1 July 2022 and to insert a funding cap for the financial year starting on 1 July 2023; and

• amend the Higher Education Support Act 2003 (HESA) to give effect to the Mid-Year Economic and Fiscal Outlook (MYEFO) 2020-21 commitment to move the University of Notre Dame Australia (UNDA) from Table B to Table A of HESA.1

Background

The Australian Research Council The Australian Research Council (ARC) is an independent Commonwealth body established by the ARC Act in 2001. Its purpose is to:

… grow knowledge and innovation for the benefit of the Australian community through funding the highest quality research, assessing the quality, engagement and impact of research and providing advice on research matters.2

The ARC is the Government’s main source of advice on investment in Australian research and also provides research evaluation through Excellence in Research Australia (ERA).3 The ARC administers funding for basic and applied research in all disciplines through the National Competitive Grants Program (NCGP), although most medical research is funded separately and administered by the National Health and Medical Research Council (NHMRC). The NCGP comprises two programs, the:

• Discovery Program which provides support for fundamental research undertaken by individuals and small teams; and

• the Linkage Program which encourages research ‘links’ between university-based researchers and industry, business and other partners nationally and internationally, to stimulate research impact.4

Grants are awarded competitively through a peer assessment process.5

The budget provides the funding for the NCGP as a special appropriation under the ARC Act.6 The ARC Act specifies the annual funding cap for approved research.7 The Explanatory Memorandum states that ‘the amendments are essential as the ARC Act is the legislative basis that supports the financial operations of the ARC research programs through special appropriation mechanisms which must occur each financial year’.8 From 1 January 2016, funding has been indexed by the Consumer Price Index (CPI).9

1. J Frydenberg (Treasurer) and S Birmingham (Minister for Finance), Mid-Year Economic and Fiscal Outlook 2020-21, p. 151. 2. Australian Research Council (ARC), ‘About the Australian Research Council’, ARC website, last modified 27 November 2019. 3. Ibid.

4. Ibid.

5. ARC, ‘Peer Review’, ARC website, last modified 9 July 2020. 6. Australian Government, Budget Measures: Budget Paper No. 4 2020-21, ‘Special Accounts Table’, p. 138. 7. Australian Research Council Act 2001, Part 7, Division 1, subdivision B generally. 8. Explanatory Memorandum, Education Legislation Amendment (2021 Measures No. 1) Bill 2021, p. 2. 9. Australian Government, Budget Measures Budget Paper No. 2 2014-15, ‘Expanding Opportunity - Higher Education

Indexation - revised arrangements’, p. 85.

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Education Legislation Amendment (2021 Measures No. 1) Bill 2021 4

The University of Notre Dame Australia The UNDA is a private Catholic university based in Freemantle, Western Australia (WA), with additional campuses in Broome and Sydney, and clinical schools in Sydney, Melbourne, and regional New South Wales.10

Teaching A relatively small institution compared with most other Australian universities, UNDA’s 11,727 students represented only 0.7 per cent of the approximately 1.6 million total students in Australian higher education 2019.11 Its courses are substantially focused on health and education, with over 60 per cent of students studying in these fields, as shown in Table 1 below.

Table 1: All UNDA students by broad field of education, 2019

Field of education Students Per cent of total

Natural and Physical Sciences 418 3.6

Information Technology 0 0.0

Engineering and Related Technologies 0 0.0

Architecture and Building 17 0.1

Agriculture, Environmental and Related Studies 0 0.0

Health 4,498 38.4

Education 3,110 26.5

Management and Commerce 997 8.5

Society and Culture 2,446 20.9

Creative Arts 269 2.3

Food, Hospitality and Personal Services 0 0.0

Mixed Field Programs 394 3.4

Non-award courses 161 1.4

TOTAL 11,7271 100.02

Source: Parliamentary Library calculations and Department of Education, Skills and Employment (DESE), ‘2019 Section 2 All students’, Table 2.8, DESE website, created 8 September 2020.

Notes:

1. The data takes into account the coding of Combined Courses to two fields of education. As a consequence, counting both fields of education for Combined Courses means that the totals may be less than the sum of all broad fields of education.

2. Percentages do not sum to 100 due to rounding and the effect of the coding of combined courses.

UNDA is well regarded by its students, with 88 per cent of undergraduate students rating the quality of their overall education experience positively, according to the Australian Government’s 2019 Student Experience Survey report.12 Small institution size is positively correlated with high

10. University of Notre Dame Australia (UNDA), ‘Introducing Notre Dame’, UNDA website, n.d.; UNDA, ‘Our Campuses’, UNDA website, n.d. 11. Department of Education, Skills and Employment (DESE), ‘2019 Section 5 Liability status categories Table 5.6: All Students by Higher Education Institution and Liability Status, Full Year 2019’, DESE website, created 8 September 2020. In 2019, only the

University of Divinity (1,500 students) and Bond University (6,101) are smaller, and Charles Darwin University is of a similar size with 12,010 students. There were a total of 1,609,798 students (headcount) enrolled in 2019: 852,808 Commonwealth supported students; 196,822 domestic fee-paying students; 45,555 other domestic students; and 522,782 overseas students. 12. Social Research Centre (SRC), 2019 Student Experience Survey, report prepared for DESE, DESE, [Canberra], March 2020, p. 8.

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Education Legislation Amendment (2021 Measures No. 1) Bill 2021 5

student satisfaction, with other small universities, the University of Divinity (93 per cent) and Bond University (87 per cent), making up the top three highly rated universities, along with UNDA.13

Employers are generally satisfied with Australian university graduates, with overall satisfaction ratings ranging between 95 and 76 per cent, based on combined results from 2017, 2018 and 2019 employer surveys.14 UNDA is towards the top of this range, with 87 per cent employer satisfaction.15

Despite generally high levels of employer satisfaction, in 2020, labour market outcomes for graduates of most universities declined.16 In 2020, four months after completion of an undergraduate university degree, 69 per cent of graduates were employed full-time (as a proportion of those available for full-time work), compared with 73 per cent in 2019.17 UNDA graduates achieved slightly better than average outcomes, with 74 per cent employed full-time in 2020, compared with 77 per cent in 2019.18 In addition to university teaching and other support such as careers advice, these outcomes are shaped by factors such as the composition of the student population, course offerings, and variations in regional labour markets.19

Research Based on limited publicly available information, the UNDA appears to currently be less research intensive than many Australian universities. The ARC’s ERA assesses the quality of research at Australian universities, using five ratings for research quality:

• 5: well above world standard

• 4: above world standard

• 3: world standard

• 2: below world standard and

• 1: well below world standard.20

Most research assessed through ERA is rated well above world standard (36 per cent) or above world standard (30 per cent).21 A diminishing proportion is rated at world standard (24 per cent), below world standard (9 per cent) and well below world standard (1 per cent).22 The UNDA’s latest ERA results by field of research, shown in Table 2 below, show only medical and health sciences research at the UNDA achieved a world standard rating.

13. Ibid. Factors with no relationship to education quality, such as course offerings and the composition of the student population, may also impact ratings. 14. SRC, 2019 Employer Satisfaction Survey, report prepared for DESE, DESE, [Canberra], January 2020, p. 14. 15. Ibid. pp. 15-17. 16. SRC, 2020 Graduate Outcomes Survey, report prepared for DESE, DESE, [Canberra], November 2020, p. 12. 17. SRC, 2020 GOS National Tables, report prepared for DESE, DESE, [Canberra], November 2020. 18. SRC, 2020 Graduate Outcomes Survey, op. cit., p. 13. 19. Ibid., p. 12. 20. ARC, State of Australian University Research 2018-19, ARC, Canberra, 2019. There are other measures of research

performance that Australian universities rely on to varying degrees. International rankings such as the Times Higher Education (THE) World University Rankings and QS World University Rankings endeavour to measure university performance, based largely on research activity. The THE World University Rankings for 2021 include 37 Australian universities in the top 1,000 institutions, and the QS World University Rankings for 2021 include 36 Australian Universities in the top 1,000 institutions. UNDA is not included among these. 21. Ibid.

22. Ibid.

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Education Legislation Amendment (2021 Measures No. 1) Bill 2021 6

Table 2: UNDA Excellence in Research for Australia Results, 2018

Field of Research ERA

rating

Rating meaning

11 Medical and Health Sciences 3 At world standard

1103 Clinical Sciences 3 At world standard

1106 Human Movement and Sports Science 4 Above world standard

1112 Oncology and Carcinogenesis 3 At world standard

1114 Paediatrics and Reproductive Medicine 4 Above world standard

1117 Public Health and Health Services 2 Below world standard

13 Education 2 Below world standard

1302 Curriculum and Pedagogy 2 Below world standard

1303 Specialist Studies in Education 2 Below world standard

15 Commerce, Management, Tourism and Services 1 Well below world standard

16 Studies in Human Society 1 Well below world standard

18 Law and Legal Studies 2 Below world standard

1801 Law 2 Below world standard

21 History and Archaeology 2 Below world standard

2103 Historical Studies 2 Below world standard

22 Philosophy and Religious Studies 2 Below world standard

2204 Religion and Religious Studies 2 Below world standard

Source: Australian Research Council (ARC), State of Australian University Research 2018-19, ARC, Canberra, 2019.

The UNDA emphasises its collaborative and translational research, with concentrations in health and medical fields, and some research activity across all its areas of teaching.23

The ARC assesses research engagement and impact through the Engagement and Impact Assessment (EI) using a three-point rating scale—high, medium and low.24 Each point on the rating scale has a specific descriptor for engagement, impact and approach to impact:

• For engagement, the assessment focused on interactions between researchers and research end-users outside of academia for the mutually beneficial transfer of knowledge, technologies, methods and resources. A rating of high indicates highly effective interactions, while a medium rating is characterised by effective interactions, and a low rating means there was little or no evidence of effective interactions.

• For impact, the assessment focused on the contribution of research beyond academia. A rating of high indicates a highly significant contribution, medium indicates a significant contribution, and low indicates little or no contribution beyond academia.

• For approach to impact, the assessment focuses on mechanisms to encourage the translation of research into impacts beyond academia. A rating of high indicates highly effective and well-

23. UNDA, ‘Research at Notre Dame’, UNDA website, n.d. 24. ARC, Engagement and Impact Assessment 2018-19, ARC, Canberra, 2019.

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Education Legislation Amendment (2021 Measures No. 1) Bill 2021 7

integrated mechanisms, medium indicates effective and integrated mechanisms, and low indicates the mechanisms are not effective and integrated.25

Most fields of research were not assessed for the UNDA in 2018 due to low volume.26 The available ratings are shown in Table 3 below.

Table 3: UNDA Engagement and Impact Assessment Results, 2018 Field of Research Engagement Impact Approach to

Impact

11 Medical and Health Sciences (Biomedical and Clinical Sciences)

Low Low Low

11 Medical and Health Sciences (Public and Allied Health Sciences) Medium Low Medium

13 Education Low Low Low

22 Philosophy and Religious Studies Medium Low Low

IN Aboriginal and Torres Strait Islander Research

Medium Low

Source: ARC, ‘Engagement and Impact Outcomes’, ARC website, n.d.

Committee consideration

Senate Standing Committee for Selection of Bills At its meetings of 3 and 17 February 2021, the Senate Standing Committee for Selection of Bills deferred consideration of the Bill to its next meeting.27

Policy position of non-government parties/independents At the time of writing, no non-government parties/independents have commented on the specifics of the Bill.

Position of major interest groups The UNDA has welcomed its re-categorisation to Table A.28 Vice Chancellor Professor Francis Campbell stated:

These changes are an endorsement of Notre Dame, its contribution to the Australian Higher Education Sector, the outstanding education provided to its students, and the significant contribution its graduates make to Australian society.29

At the time of writing, no other major interest groups have commented on the specifics of the Bill.

25. Ibid.

26. ARC, ‘Engagement and Impact Outcomes’, ARC website, n.d. 27. Senate Standing Committee for Selection of Bills, Report, 1, 2021, The Senate, Canberra, 4 February 2021, [p. 2]; Senate Standing Committee for Selection of Bills, Report, 2, 2021, The Senate, Canberra, 18 February 2021, [p. 2]. 28. UNDA, The University of Notre Dame welcomes Government funding decision, media release, 18 December 2020. 29. Ibid.

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Education Legislation Amendment (2021 Measures No. 1) Bill 2021 8

Financial implications

Schedule 1 The Bill results in an additional appropriation of $855.0 million over four years from 1 July 2020.30 This is due to the increased funding figures for three years ($53.63 million) and to the extension of the forward estimate period to include 2023-24 ($801.41 million). The additional appropriation does not affect the substance of the ARC Act nor give extra money to a Government department; it only adds to the special appropriation administered by the ARC for the purpose of funding research. The proposed changes in funding are in Table 4.

Table 4: Proposed changes in appropriation caps

Financial Year (starting date) Current Appropriation Cap

($ million)

Proposed Appropriation Cap ($ million)

1 July 2020 786.212 803.409

1 July 2021 786.212 804.411

1 July 2022 786.212 804.442

1 July 2023 - 801.410

Source: Australian Research Council Act, section 49; Education Legislation Amendment (2021 Measures No. 1) Bill 2021, Schedule 1.

Schedule 2 Schedule 2 of the Bill has been costed at $27.2 million over four years from 2020-21 and $133.3 million over ten years to 2029-30.31

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.32

Parliamentary Joint Committee on Human Rights At the time of writing, the Parliamentary Joint Committee on Human Rights has not considered the Bill.33

Key issues and provisions

Schedule 1—Research amendments ARC funding caps for approved research programs are set under statute, allowing governments to extend funding in line with budget announcements. These funding caps are updated, usually annually, to take into account indexation by the CPI and budget decisions, and to add an additional year for the forward estimates. The ARC’s funding is currently authorised until the end of the

30. Explanatory Memorandum, op. cit., p. 4. 31. Ibid. 32. The Statement of Compatibility with Human Rights can be found at pages 5-6 of the Explanatory Memorandum to the Bill. 33. Parliamentary Joint Committee on Human Rights, Index of bills considered by the committee, 3 February 2021.

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2022-23 financial year.34 The proposed amendments in Schedule 1 will update the funding caps and insert a new financial year as detailed in Table 1 above.

Schedule 2—Education amendments Eligibility for higher education funding under HESA is administered using four categories:

• Table A providers (listed in section 16-15) are eligible to access the full range of funding programs

• Table B providers (listed in section 16-20) are eligible to access a limited range of funding programs

• Table C providers (listed in section 16-22) are explicitly excluded from most funding, but can offer some student loans and

• providers approved by the Minister under section 16-25, which are not listed in HESA.35

Currently, the UNDA is listed in Table B. Schedule 2 of the Bill proposes to remove UNDA from Table B (item 2) and add it to Table A (item 1).

A list of current Table A and Table B providers is at Appendix 1. Eligibility for key funding programs by category is set out in the table at Appendix 2.36

The effect of moving the UNDA from Table B to Table A

Funding In practice, despite being a Table B provider, the UNDA already accesses most funding available under HESA. In 2019, it reported total revenue of $189.9 million from continuing operations, 83.1 per cent ($157.9 million) from Australian Government sources.37 In comparison, only 48.7 per cent ($17.8 billion) of all university revenue ($36.5 billion) came from the Australian Government.

34. Australian Research Council Act 2001, section 49. 35. Higher Education Support Act 2003 (HESA) funding is only available to higher education providers, defined in section 16-1 as those providers approved under Division 16. A list of approved providers is available from DESE, ‘Providers that offer Commonwealth assistance’, StudyAssist website, n.d.

36. Certain other programs not included in the table are funded under the ‘other grants’ provisions in Division 41. Eligibility for all ‘other grants’ funding is set out in section 41-10 of HESA. 37. DESE, ‘Financial Performance - Total’, 2019 Higher Education Providers Finance Tables, DESE website, created 25 November 2020. UNDA’s revenue from the Australian Government included $80.6 million in grants, predominantly $68.8

million from the CGS and other grants provided under HESA and $77.3 million in payments for student loans. It received the remainder of its revenue from state and local government ($1.0 million), upfront student contributions ($4.0 million), fees and charges, including overseas student fees ($22.0 million) and investments, consultancies and contracts, and other income ($5.0 million).

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Education Legislation Amendment (2021 Measures No. 1) Bill 2021 10

The UNDA’s HESA funding is currently achieved by a combination of:

• access to the programs it is eligible for as a Table B provider, such as the Research Block Grants and Indigenous Student Success Program and

• special arrangements to access the Commonwealth Grant Scheme (CGS), set out in the Commonwealth Grant Scheme Guidelines—although the CGS is largely restricted to Table A providers, a limited number of Commonwealth supported places (CSPs) are funded through the CGS each year in areas defined in the Guidelines as ‘national priorities’, mostly to increase the supply of Health and Education graduates.38

Since the CGS commenced in 2005, the UNDA’s number of Commonwealth supported students has grown substantially, from 641 to 7,026.39 Although this has been alongside substantial overall growth in the system, UNDA’s share of Commonwealth supported students has also grown, from 0.1 per cent in 2005, to 0.8 per cent in 2019.40 The other Table B providers do not have CGS access.41

In 2019, the UNDA’s students comprised:

• 7,026 Commonwealth supported students (that is, students in CSPs)

• 4,174 domestic fee-paying students

• 515 other domestic students (including 153 non-award students and 367 postgraduate research students with fee offsets via the Research Training Program) and

• 222 overseas students.42

Therefore, Schedule 2 of the Bill will enshrine continued CGS access in legislation for the UNDA, and ensure this covers all fields of education.43 For undergraduate students this will mean UNDA courses currently offered as full fee-paying will be subsidised through the CGS, and thus offered at lower cost to the student.44 Subject to some limited exceptions, Table A providers are required to enrol eligible undergraduate students in CSPs.45 However, no such requirement applies to postgraduate students, meaning the UNDA could continue to offer full fee-paying non-research postgraduate courses, as current Table A providers do.

Reclassification to Table A will also extend access to the other funding programs that are shown in the table at Appendix 2 as being restricted to Table A providers. This includes equity funding for disadvantaged students (such as the Higher Education Disability Support Program and the new Indigenous, Regional and Low SES Attainment Fund), as well as the new National Priorities and Industry Linkage Fund designed to support industry engagement.

38. HESA, section 30-1; Commonwealth Grant Scheme Guidelines, chapter 3. 39. DESE, ‘Load Time Series: Liability Status (Headcounts)’, Selected Higher Education Statistics - 2019 Student data, DESE website, last updated 14 July 2020. 40. Ibid. Total Commonwealth supported students were 537,474 in 2005 and 852,808 in 2019. 41. For 2021-2023, the non-Table A providers with CGS funding agreements are Tabor College, Melbourne Polytechnic,

Holmesglen Institute of TAFE, Eastern College Australia, Christian Heritage College, and Avondale College. See DESE, ‘Higher education providers' 2021-2023 funding agreements’, DESE website, n.d. 42. DESE, ‘2019 Section 5 Liability status categories Table 5.6: All Students by Higher Education Institution and Liability Status, Full Year 2019’DESE website, created 8 September 2020; DESE, Selected Higher Education Statistics - 2019 Student data, DESE

website, last updated 14 July 2020. Note: this data takes into account the coding of students to more than one liability status category. As a consequence, counting students in multiple categories means that totals may be less than the sum of all. 43. A move from Table B to Table A would also change the requirements for the UNDA’s CGS funding agreement, providing more freedom to reallocate CGS funding between courses. Currently, the UNDA’s CGS funding must be allocated by specifying the

number of places allocated for each national priority (subsection 30-10(4)). The Minister does not allocate places to Table A providers in relation to higher education courses or demand driven higher education courses, but places in designated courses (currently only medicine) are allocated (subsection 30-10(1) and section 30-12). 44. The intent of re-categorising the UNDA is to transition fee-paying non-medical domestic undergraduate students to CSPs. Explanatory Memorandum, op. cit., p. 10. 45. HESA, section 36-30. Sections 36-10 and 36-15 set out these exceptions, including citizenship and residency requirements.

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Education Legislation Amendment (2021 Measures No. 1) Bill 2021 11

Regulation and administrative arrangements Many policy, compliance and administrative requirements are imposed under HESA in return for funding.46 For the most part, these apply equally to all approved providers, or to both Table A and Table B. However, reclassification will reduce compliance requirements for the UNDA in some limited areas. Namely, Table A providers are not:

• subject to audit at the request of the Minister to check compliance with certain requirements under HESA47

• required to have in place Tuition Protection arrangements to safeguard course provision for their students in case they default in their commitment to provide a unit (or subject) to a student as planned48 or

• required to ensure their grievance procedures comply with the Higher Education Provider Guidelines 2012.49

Despite this, UNDA’s status under HESA does not affect its responsibilities as a self-accrediting university registered by the Tertiary Education Quality and Standards Agency (TEQSA) under the Tertiary Education Quality and Standards Agency Act 2011. All Australian universities have the same responsibilities to uphold academic and governance standards in accordance with the Higher Education Standards Framework (Threshold Standards) 2015, which TEQSA assesses provider registration against.50

Policy implications The universities (and Batchelor Institute of Indigenous Tertiary Education) currently listed in Table A are sometimes characterised as public, and those in Table B as private.51 Although HESA does not use these terms, and there is no consensus in the Australian policy literature about what constitutes a public university, references to government ownership and funding are common.52 Any re-categorisation of providers may therefore raise policy questions for some about the purpose and continued utility of the tables.

The tables were introduced in 1992 under the Higher Education Funding Act 1988 (HEF Act), the precursor to HESA).53 Initially used to implement funding arrangements for the Unified National System (UNS), providers that met the criteria for inclusion in the UNS were listed in Table A, and received the full operating grant, while other funded providers were in Table B, and received a

46. These cover issues such as financial viability, quality, fairness, compliance, student contributions and fees, and academic freedom, as well as policy requirements such as entering into a mission based compact, and having a policy upholding free intellectual inquiry (HESA, sections 19-1 and 19-115).

47. HESA, section 19-80. 48. HESA, subsection 166-5(1). 49. HESA, subsection 19-45(2). 50. The only legislated relationship between the tables in HESA and the provider categories used by TEQSA is that a provider must

be registered with TEQSA in order to access funding under HESA (HESA, section 16-27). 51. DESE, ‘2019 List of higher education institutions’, DESE website created 8 September 2020; A Norton and I Cherastidtham, Mapping Australian higher education 2018, Grattan Institute, Carlton, September 2018, p. 46. 52. S Marginson, ‘The public/private divide in higher education: A global revision’, Higher education, 53(3), 2007, pp. 307-333;

Glyn Davis, The Australian Idea of a University, Melbourne University Press, Melbourne, 2017, pp. 41-58; S Macintyre, A Brett and G Croucher, No End of a Lesson: Australia’s Unified National System of Higher Education, Melbourne University Press, Melbourne, 2017, pp. 30-31. Other accounts place substantial emphasis on public purpose, with, for example, the founding of the University of Sydney described partly in terms of its contribution to the development of a ‘reasoning public’, able to engage in the ‘public sphere’, where socially and politically significant ideas could be discussed. See J Horne and G Sherington, Sydney the Making of a Public University, The Miegunyah Press, Melbourne, 2012, pp. 28-29. 53. In 1992, the Higher Education Funding Amendment Act (No. 2) 1992 replaced a single list of providers in section 4 of the HEF

Act with Table A and Table B; R Bell and K Jackson, Higher Education Funding Amendment Bill 1998, Bills digest, 18, 1998-99, Parliamentary Library, Canberra, 1998.

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Education Legislation Amendment (2021 Measures No. 1) Bill 2021 12

more limited grant without provision for capital projects or research.54 However, this criteria was relaxed in subsequent years as more providers were added to Table A of the HEF Act, including the UNDA in 1998.55 The tables were later adopted into HESA, albeit with the UNDA in Table B.56 There is no criteria in HESA for a provider to be added to Table A or Table B.

In this context, the current function of Table A is administrative—it distinguishes institutions which the Parliament has approved for full access to Australian Government funding. In this respect, re-categorising the UNDA formalises and simplifies its existing status as a publicly funded university, and referring to Table A providers as public is simply an indication of this funding status.

Other dimensions of public university status can present more definitional challenges. Most Australian universities (with the exception of the four Table B providers, and the Australian Catholic University, ACU) were established by state or Commonwealth Parliaments as secular public institutions, even if offering courses or units in religious studies or theology.57 These government-founded providers are governed under wide-ranging establishing Acts that make them responsible to their establishing parliament (through, for example, financial reporting, and Ministerial appointments to the institution’s governing Council or Senate).58

In contrast, the UNDA was conceived by the Archdiocese of Perth and the Catholic Education Commission of Western Australia, and established as a ‘a private Catholic university’, with the intention of educating professionals for WA’s Catholic health and education systems.59 Its establishing Act, the University of Notre Dame Australia Act 1989 (WA) (UNDA Act) has limited scope, and primarily serves to establish the UNDA as a university, with provisions safeguarding both the university’s independence and Catholic faith and values.60

However, the Australian Catholic University, which was established from four Catholic teachers colleges as a Company Limited by Guarantee, and recognised as a university in Victoria through the Australian Catholic University (Victoria) Act 1991 (Vic.) and in New South Wales through the Australian Catholic University Act 1990 (NSW), has long been a Table A provider.61 Both of these

54. Higher Education Funding Amendment Act (No. 2) 1992; R Bell and K Jackson, Higher Education Funding Amendment Bill 1998, op. cit. 55. Higher Education Funding Amendment Act 1998. 56. HESA, as made. 57. G Davis, The Australian Idea of a University, Melbourne University Press, Melbourne, 2017, pp. 41-58. Within the Australian

context secular means avoiding identification with any particular religion and providing a neutral framework that accommodates a broad range of religions and beliefs (including non-belief). C Barker, D McKeown and J Murphy, Foreign Influence Transparency Scheme Bill 2017 and Foreign Influence Transparency Scheme (Charges Imposition) Bill 2017, Bills digest, 87, 2017-18, Parliamentary Library, Canberra, 2018, p. 47. As such, most Australian Universities were established as institutions not formally aligned with any specific religion or denomination, even if offering courses or units in religious studies or theology in general or that relate to a specific religion or denomination. Current examples of Table A universities offering courses or units in the study of religion generally and/or specific units in theology of particular religions that can provide a basis for becoming a recognised Minister of Religion of particular religions or denominations include Charles Sturt University, Flinders University, The University of Sydney, and The University of Queensland. 58. It is not the intention of this Bills Digest to provide a detailed account of governance arrangements for every Table A provider,

but for example see: Australian National University Act 1991 (Cth.), especially Part 2 and section 44; University of Canberra Act 1989 (ACT), Part 2 and sections 34 and 35; Charles Sturt University Act 1989 (NSW), Part 3 and sections 24D and 24E; Batchelor Institute of Indigenous Tertiary Education Act 1999 (NT), Part 3 and sections 44 and 45; Central Queensland University Act 1998 (Qld.), Part 2 and section 50; Flinders University Act 1966 (SA), sections 20 and 27; University of Tasmania Act 1992 (Tas.), Part 2; Deakin University Act 2009 (Vic.), Part 2 and sections 55 and 59; Curtin University Act 1966 (WA), Part 2. 59. P Tannock, The Founding and Establishment of the University of Notre Dame Australia 1986-2014, UNDA, Western Australia,

November 2014, p. 2. 60. UNDA, ‘Introducing Notre Dame’, UNDA website, n.d; P Tannock, The Founding and Establishment of the University of Notre Dame Australia 1986-2014, op. cit., p. 10; University of Notre Dame Australia Act 1989 (W.A.), sections 5 and 25. 61. Australian Catholic University (ACU), ‘Australian Catholic University Limited Constitution’, ACU website, n.d.; ACU,

‘Governance’, ACU website, n.d.; ACU, ‘A brief history of ACU’, ACU website, n.d.; ACU, ‘McAuley at Banyo Campus’, ACU

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Education Legislation Amendment (2021 Measures No. 1) Bill 2021 13

Acts, like the UNDA Act, are relatively limited in scope compared with those of the other Table A providers. Additionally, even government-founded universities operate as autonomous institutions in most respects, and are acknowledged as such in HESA—institutional autonomy is a central feature of safeguarding academic rigour in scholarship and research.62

Ultimately, as Simon Marginson, Professor of Higher Education at the University of Oxford, has argued, while legal ownership does matter in terms of the access and influence of public policy makers, and potential openness to democratic politics, the more important question for policy makers is:

… the social and cultural character of the outcome or ‘goods’ produced by higher education institutions: the effects of these institutions in teaching/learning, research certification of graduates, community and national service.63

Application, saving and transitional provisions The application, saving and transitional provisions at item 4 have the effect of continuing the UNDA’s treatment as a Table B provider for the remainder of 2021, in respect to the CGS. The Explanatory Memorandum indicates that this is required to provide continuity for administrative arrangements already in place for various grants under HESA, but that the Commonwealth Grant Scheme Guidelines will be used to ensure UNDA’s CGS funding for non-medical domestic undergraduate students in 2021 are in line with Table A status.64

Concluding comments The Bill proposes amendments to the ARC Act and HESA, which are largely administrative in nature. While the re-categorisation of the UNDA may raise policy questions for some, this change is consistent with its existing status as a provider of CSPs, and substantial reliance on Australian Government funding.

website, last updated 22 September 2020. ACU has been a Table A provider since 1992, when the category was introduced. See Higher Education Funding Amendment Act (No. 2) 1992. ACU later sought recognition as a university in Queensland (it had previously operated there as an interstate university), and this was granted through the Australian Catholic University (Queensland) Act 2007 (Qld.). Explanatory Notes, Australian Catholic University (Queensland) Bill 2006, p. 1. 62. HESA, subsection 2-1(b); World University Service, The Lima Declaration on Academic Freedom and Autonomy of Institutions

of Higher Education, World University Service, Geneva, September 1988; International Association of Universities(IAOU), Academic freedom, university autonomy and social responsibility, IAOU, [Paris], April 1988; Association of American Universities, Group of Eight (Australia), League of European Research Universities, Chinese 9 Universities, Hefei Statement on the ten characteristics of contemporary research universities, [Belgium], October 2013; 63. S Marginson, ‘The public/private divide in higher education: A global revision’, op. cit., pp. 309-310. 64. Explanatory Memorandum, op. cit., pp. 10-11.

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Education Legislation Amendment (2021 Measures No. 1) Bill 2021 14

Appendix 1: Higher Education Support Act 2003—listed providers at February 2021 Table A providers

Central Queensland University

Charles Darwin University

Charles Sturt University

Curtin University

Deakin University

Edith Cowan University

Federation University Australia

Flinders University

Griffith University

James Cook University

La Trobe University

Macquarie University

Monash University

Murdoch University

Queensland University of Technology

Royal Melbourne Institute of Technology

Southern Cross University

Swinburne University of Technology

The Australian National University

The University of Adelaide

The University of Melbourne

The University of Queensland

The University of Sydney

The University of Western Australia

University of Canberra

University of Newcastle

University of New England

University of New South Wales

University of South Australia

University of Southern Queensland

University of Tasmania

University of Technology Sydney

University of the Sunshine Coast

University of Wollongong

Victoria University

Western Sydney University

Australian Catholic University

Batchelor Institute of Indigenous Tertiary Education

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Education Legislation Amendment (2021 Measures No. 1) Bill 2021 15

Table B providers

Bond University

The University of Notre Dame Australia

University of Divinity

Torrens University Australia

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Appendix 2: key higher education funding program eligibility under HESA at February 2021 Program Description Provider eligibility HESA section

Commonwealth Grant Scheme (CGS) Subsidises course fees for eligible higher education students.

Most CGS funding is only available to Table A providers, although other providers listed in the Commonwealth Grant Scheme Guidelines are eligible for ‘national priorities’ funding.

30-1

Research Block Grants

Funding to support university research capacity through the Research Training Program and Research Support Program.

Table A and Table B 41-10(1) item 7

and 46-15

Indigenous, Regional and Low SES Attainment Fund (IRLSAF)

Announced in 2020 as part of the Job-ready Graduates Package, from 2021 the IRLSAF combines existing equity funding from the Higher Education Participation and Partnership Program (HEPPP) as well as the enabling loading and regional loading, which previously formed part of the CGS.

Only Table A providers are eligible for all IRLSAF components. The loadings which previously formed part of the CGS are also provided to the UNDA through the Other Grants Guidelines (Education) 2012.

41-10(1) item 1

National Priorities and Industry Linkage Fund (NPILF)

Announced in 2020 as part of the Job-ready Graduates Package, the NPILF will provide grants to universities from 2021 to invest in more innovative approaches to industry engagement, with the aim of improving graduate employability.

Table A 41-10(1) item 13

Indigenous Student Success Program Provide scholarships, tutorial assistance, mentoring, safe cultural

spaces and other personal support services—each provider determines the mix of services best suited to their students.

Table A and Table B

38-10

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Program Description Provider eligibility HESA section

Regional Universities Centres Provide facilities such as computers and study spaces, and support such

as study advice and academic support services, to assist students studying at a distance from their provider.

Under the Other Grants Guidelines (Education) 2012, funding is available to Table A and Table B providers, any other provider allocated CSPs, a body corporate registered as a charity or not-for profit, or any other body corporate the Minister is satisfied has, or will have, a physical operational presence in a regional or remote area.

41-10(1) item 11(c)

Higher Education Disability Support Program

Funding for the Disability Support Fund (DSF), which allocates funding to institutions to undertake activities that assist in removing barriers to access for students with disability, and the Australian Disability Clearinghouse on Education & Training, currently hosted by the University of Tasmania.

Table A 41-10(1) item 1

HECS-HELP Student loan for eligible

Commonwealth supported students to pay their student contributions.

Table A, and other providers with places in ‘national priority areas’ for the student’s course. 90-1(c) and 30-1

FEE-HELP Student loan for eligible full fee-

paying students to pay their course fees.

All approved providers. 104-10(1)

SA-HELP Student loan for eligible students to

pay the Student services and amenities fee (SSAF).

All approved providers. 126-1 and

19-37(5)

OS-HELP Student loan for eligible students to

cover overseas study expenses. Table A, and other providers with places in ‘national priority areas’ for the student’s course. 118-7(c) and 30-

1

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