Title Education and Employment Legislation Committee—Senate Standing—Higher Education Legislation Amendment (Provider Category Standards and Other Measures) Bill 2020 [Provisions]—Report, dated November 2020
Source Senate
Date 30-11-2020
Parliament No. 46
Tabled in Senate 30-11-2020
Parliamentary Paper Year 2020
Parliamentary Paper No. 516
Paper Type Committee Document
Disallowable No
Journals Page No. 2620
House of Reps DPL No. 797
System Id publications/tabledpapers/67bb9d77-f0f4-4cee-b9c2-b13fb2405be8


Education and Employment Legislation Committee—Senate Standing—Higher Education Legislation Amendment (Provider Category Standards and Other Measures) Bill 2020 [Provisions]—Report, dated November 2020

November 2020

The Senate

Education and Employment Legislation Committee

Higher Education Legislation Amendment (Provider Category Standards and Other Measures) Bill 2020 [Provisions]

© Commonwealth of Australia 2020

ISBN 978-1-76093-145-2

This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 4.0 International License.

The details of this licence are available on the Creative Commons website: https://creativecommons.org/licenses/by-nc-nd/4.0/.

Printed by the Senate Printing Unit, Parliament House, Canberra

iii

Members

Chair Senator the Hon James McGrath LP, QLD

Deputy Chair Senator Louise Pratt ALP, WA

Members Senator Perin Davey NATS, NSW

Senator Mehreen Faruqi AG, NSW

Senator Deborah O'Neill ALP, NSW

Senator Matt O'Sullivan LP, WA

Participating Members Senator the Hon Kim Carr ALP, VIC

Secretariat Mr Alan Raine, Acting Committee Secretary Ms Aysha Osborne, Principal Research Officer Mr Michael Perks, Senior Research Officer Mr Russell Thomson, Research Officer Ms Stephanie Oberman, Administrative Officer

Committee web page: www.aph.gov.au/senate_eec

PO Box 6100 E-mail: eec.sen@aph.gov.au

Parliament House Ph: 02 6277 3521

Canberra ACT 2600 Fax: 02 6277 5706

v

Table of Contents

Members ............................................................................................................................................. iii

Chapter 1—Introduction .................................................................................................................... 1

Purpose of the bill ................................................................................................................................ 1

Conduct of the inquiry ........................................................................................................................ 1

Structure of the report ......................................................................................................................... 2

Notes on references .............................................................................................................................. 2

Acknowledgements ............................................................................................................................. 2

Chapter 2—Background ..................................................................................................................... 3

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

Tertiary Education Quality and Standards Agency (TEQSA) ............................................ 3

The HES Framework ................................................................................................................ 3

Review of the Higher Education Provider Category Standards ........................................ 4

Review of the impact of the TEQSA Act on the higher education sector ......................... 5

Higher Education Legislation Amendment (Provider Category Standards and Other Measures) Bill 2020 ................................................................................................................... 6

Streamlining the HES Framework .......................................................................................... 6

Simplifying and enhancing the higher education provider categories ............................. 7

Introducing research quality measures ................................................................................. 8

Assuming control of higher education student records ...................................................... 9

Other amendments to the TEQSA Act ................................................................................. 10

Expanding the definition of a higher education award ......................................... 10

Extending registration periods .................................................................................. 10

Allowing review of decisions not to change a provider's registration category 11

Protecting the word 'university' in Australian internet domain names .............. 11

Amending the Higher Education Support Act 2003 .......................................................... 11

Consideration by the Senate Standing Committee for the Scrutiny of Bills .............................. 12

Compatibility with human rights .................................................................................................... 14

Financial impact statement ............................................................................................................... 14

Chapter 3—Views on the bill.......................................................................................................... 15

General views on the bill .................................................................................................................. 15

vi

Comment on specific aspects of the bill .......................................................................................... 18

Simplifying the provider category standards ..................................................................... 18

Clarifying research requirements for universities ............................................................. 20

Research quality assessment frameworks ................................................................ 23

Ability of universities to meet the research benchmarks ............................................................. 25

Interaction with broader changes to university research funding ....................... 27

Transferring student records ................................................................................................. 28

Expanding the definition of a higher education award to include undergraduate certificates ..................................................................................................................... 30

Protecting the term 'university' in domain names ............................................................. 31

Amending the Higher Education Support Act 2003 .......................................................... 31

Committee View ................................................................................................................................. 32

Labor Senators' minority report ..................................................................................................... 35

Australian Greens Senators' additional comments .................................................................... 45

Appendix 1—Submissions and Additional Information .......................................................... 49

Appendix 2—Public Hearings ........................................................................................................ 51

1

Chapter 1 Introduction

1.1 On 2 September 2020, the Higher Education Legislation Amendment (Provider Category Standards and Other Measures) Bill 2020 (the bill) was introduced into the House of Representatives by the Hon Dan Tehan MP, Minister for Education.1

1.2 Following the recommendation of the Senate Selection of Bills Committee, the Senate referred the provisions of the bill on 8 October 2020 to the Senate Education and Employment Legislation Committee (the committee) for inquiry and report by 27 November 2020.2

Purpose of the bill 1.3 The Higher Education Legislation Amendment (Provider Category Standards and Other Measures) Bill 2020 amends the Tertiary Education Quality and Standards Agency Act 2011 (TEQSA Act) to:

 implement the recommendations of a review of the higher education Provider Category Standards;  give effect to an outstanding recommendation from a review of the impact of the TEQSA Act on the higher education sector;  introduce a measure to preserve and protect the academic records of

students whose higher education provider has ceased to exist; and  make a small number of other measures intended to improve the regulation of Australia's higher education sector by strengthening the TEQSA Act's

administration and the Tertiary Education Quality and Standards Agency's (TEQSA’s) regulatory role.3

1.4 The bill also amends the Higher Education Support Act 2003 to replace references to 'Indigenous students' with 'Indigenous persons'.4

Conduct of the inquiry 1.5 Details of the inquiry were made available on the committee's website.5 The committee also contacted a number of organisations inviting submissions to

1 House of Representatives Hansard, 2 September 2020, p. 6303.

2 Proof Journals of the Senate, no. 69, 8 October 2020, pp. 2406–2409.

3 The Hon Dan Tehan MP, Minister for Education, House of Representatives Hansard,

2 September 2020, p. 6303; Higher Education Legislation Amendment (Provider Category Standards and Other Measures) Bill 2020, Explanatory Memorandum, p. 2.

4 The Hon Dan Tehan MP, Minister for Education, House of Representatives Hansard,

2 September 2020, p. 6303.

2

the inquiry. Submissions were received from 26 organisations, as listed at Appendix 1. Submissions are also available on the committee's website.

1.6 The committee held a public hearing in Canberra on 4 November 2020. The witness list for this hearing can be found at Appendix 2.

Structure of the report 1.7 Chapter 2 outlines the background to the bill and the key provisions contained in the bill.

1.8 Chapter 3 outlines the key issues as raised by submitters and witnesses and sets out the committee view.

Notes on references 1.9 References in this report to Committee Hansard are to proof transcripts. Please note that page numbers may vary between the proof and official transcripts.

Acknowledgements 1.10 The committee thanks those individuals and organisations who contributed to this inquiry by preparing written submissions and giving evidence at the public hearing.

5 www.aph.gov.au/Parliamentary_Business/Committees/Senate/Education_and_Employment

(accessed 9 October 2020).

3

Chapter 2 Background

Background

Tertiary Education Quality and Standards Agency (TEQSA) 2.1 TEQSA is Australia's independent national quality assurance and regulatory agency for higher education. It was established under the TEQSA Act as part of the government's response to the 2008 Review of Australian Higher

Education. 1

2.2 More broadly, the TEQSA Act instituted a national system of regulation to assure the quality of higher education providers through a standards-based quality framework currently known as the Higher Education Standards Framework (Threshold Standards) 2015 (the HES Framework).2

2.3 The HES Framework forms the basis for TEQSA's regulation of higher education providers and courses.3 Among other activities, TEQSA's regulatory functions include registering higher education providers and accrediting their courses of study, conducting compliance and quality assessments, and providing advice and recommendations to the Commonwealth Minister for Education on matters relating to the quality and regulation of higher education providers.4

The HES Framework 2.4 The HES Framework is developed and maintained by the Higher Education Standards Panel (HESP). The HESP was also established under the TEQSA Act and provides advice to the Minister for Education on how to maintain the

quality and standards of Australia's higher education system.5

2.5 There are two parts to the HES Framework:

 Part A—Standards for Higher Education, which represent the minimum acceptable requirements for higher education provision, organised into seven domains:

1 www.teqsa.gov.au/what-we-do (accessed 9 October 2020).

2 Tertiary Education Quality and Standards Agency Bill 2011, Explanatory Memorandum, p. 2;

www.teqsa.gov.au/what-we-do (accessed 12 October 2020); https://www.teqsa.gov.au/contextual-overview-hes-framework-2015 (accessed 12 October 2020).

3 www.education.gov.au/standards-0 (accessed 12 October 2020).

4 www.teqsa.gov.au/what-we-do (accessed 9 October 2020).

5 www.education.gov.au/higher-education-standards-panel-hesp (accessed 12 October 2020).

4

− Student Participation and Attainment; − Learning Environment; − Teaching; − Research and Research Training; − Institutional Quality Assurance; − Government and Accountability; and − Representation, Information and Information Management.

 Part B—Criteria for Higher Education Providers, which includes:

− Classification of Higher Education Provider Categories; and − Seeking Authority for Self-Accreditation of Courses of Study.6

2.6 The Threshold Standards are a subset of the HES Framework and are specified under subsection 58(1) of the TEQSA Act. The following Threshold Standards have been made by the Minister for Education under paragraphs 58(1)(a) to (d) inclusive:

 Provider Registration Standards;  Provider Category Standards;  Provider Course Accreditation Standards; and  Qualification Standards.7

2.7 Before making a standard under subsection 58(1), the Minister must have consulted the Council comprising the Commonwealth, state and territory Ministers responsible for higher education, the Commonwealth Research Minister, and TEQSA. A draft standard must also have been developed by the HESP, including consultation with 'interested parties'.8

Review of the Higher Education Provider Category Standards 2.8 The Provider Category Standards (PCS) are one of the Threshold Standards under the HES Framework. They define higher education provider categories—Higher Education Provider (the basic classification), Australian

University, Australian University College, Australian University of Specialisation, Overseas University and Overseas University of Specialisation—and set out the requirements for registration under each category.9

2.9 The 2017–18 Budget included a measure to review the PCS (the PCS review). The PCS review was completed in 2019 by

Emeritus Professor Peter Coaldrake AO, with all ten of its recommendations

6 Higher Education Standards Framework (Threshold Standards) 2015, Explanatory Statement, p. 4.

7 Higher Education Standards Framework (Threshold Standards) 2015, Explanatory Statement, p. 1.

8 Tertiary Education Quality and Standards Agency Act 2011, ss. 58(3), ss. 169(2).

9 Higher Education Standards Framework (Threshold Standards) 2015, Explanatory Statement, p. 7.

5

accepted by the government. The central recommendation of the review was to simplify and enhance the higher education provider categories by:

 reducing the number of domestic university categories from three to one (Australian University);  reducing the number of overseas university categories from two to one (Overseas Universities); and  enhancing the categories for non-university providers by introducing a

second category for providers with a track record of high-quality delivery and learning outcomes (Institutes of Higher Education) and a new category of provider called University Colleges.10

Review of the impact of the TEQSA Act on the higher education sector 2.10 The TEQSA Act required the Minister for Education to commence a review of its impact on the higher education sector before 1 January 2016. The review of the impact of the TEQSA Act on the higher education sector (the impact

review) was undertaken by Deloitte Access Economics in 2016–17. 11

2.11 While the majority of the review's recommendations were addressed in a previous bill, one recommendation—to simplify framing of the Threshold Standards in the TEQSA Act—was deferred until completion of the PCS review.12

2.12 The relevant recommendation (Recommendation 5.2.2) is set out below:

The TEQSA Act should be amended to remove references to the categories of Threshold Standards, that is, the Act should not require the development of Provider Standards (the Provider Registration Standards, the Provider Category Standards and the Provider Course Accreditation Standards) and Qualification Standards. This amendment, and related consequential amendments, should not come into operation until the next formal review of the 2015 Threshold Standards. 13

2.13 This recommendation responded to a suggestion made by the HESP to specify the standards framework as a unified whole, rather than as separate standards. The HESP argued this would better match the structure of the HES Framework, which is based around the operational lifecycle of a provider. In the discussion accompanying this recommendation, Deloitte also noted the considerable drafting effort that went into making the Threshold Standards

10 Higher Education Legislation Amendment (Provider Category Standards and Other Measures)

Bill 2020, Second Reading Speech, [pp. 1–2].

11 www.education.gov.au/review-impact-teqsa-act-higher-education-sector

(accessed 12 October 2020).

12 Higher Education Legislation Amendment (Provider Category Standards and Other Measures)

Bill 2020, Second Reading Speech, [p. 2].

13 Australian Government Department of Education and Training, Review of the impact of the TEQSA

Act on the higher education sector, Australian Government response, Canberra, p. 7.

6

conform to the specified categories and acknowledged that the categories added a layer of complexity that the HESP found unnecessary.14

Higher Education Legislation Amendment (Provider Category Standards and Other Measures) Bill 2020 2.14 The bill would give effect to the remaining recommendation of the impact review (relating to changes to the Threshold Standards), as well as

recommendations of the PCS review that require a legislative response. The bill would also enact a number of measures intended to strengthen TEQSA's administration and its regulatory role.15

2.15 The amendments to the TEQSA Act contained in the bill are consequential to the changes to the Threshold Standards themselves, which will be remade through a new legislative instrument if the bill is passed. 16

2.16 The Minister noted the changes to Threshold Standards have been drafted by the HESP, as required by section 58 of the TEQSA Act. He also noted the commencement date for the related provisions in the bill would be fixed by proclamation so they take effect on the same day as the new Threshold Standards instrument (expected to be 1 July 2021).

Streamlining the HES Framework 2.17 The bill would enact the recommendation from the impact review to remove reference to individual Threshold Standards from the TEQSA Act by repealing the list of five standards that currently comprise the HES Framework and

replacing it with the following list:

 Threshold Standards; and  other standards against which the quality of higher education can be assessed. 17

2.18 This would present the Threshold Standards as a single unified framework, instead of four distinct standards.18

14 Deloitte Access Economics, Review of the impact of the TEQSA Act on the higher education sector,

Department of Education and Training, Canberra, March 2017, pp. 74–75.

15 Higher Education Legislation Amendment (Provider Category Standards and Other Measures)

Bill 2020, Explanatory Memorandum, p. 17.

16 Higher Education Legislation Amendment (Provider Category Standards and Other Measures)

Bill 2020, Second Reading Speech, [p. 2].

17 Higher Education Legislation Amendment (Provider Category Standards and Other Measures)

Bill 2020, Explanatory Memorandum, p. 20.

18 Higher Education Legislation Amendment (Provider Category Standards and Other Measures)

Bill 2020, Second Reading Speech, [p. 2].

7

2.19 Further related amendments to the TEQSA Act would remove references to individual standards and replace definitions as follows:

 Item 2 would repeal and substitute the definition of Higher Education Standards Framework in Section 5—the new definition being the Threshold Standards and any other standards made under paragraph 58(1)(b).  Item 3 would amend the definition of provider category in Section 5 so it

means a provider category listed in the Threshold Standards, instead of a provider category listed in the Provider Category Standards. If the new Threshold Standards come into effect, the provider categories will be described in a separate part of the Threshold Standards (rather than in separate Provider Category Standards).  Item 4 would repeal the definitions of Provider Category Standards,

Provider Course Accreditation Standards, and Provider Registration Standards in Section 5 as they would no longer be used (their content would be captured in the Threshold Standards).  Item 5 would repeal and substitute the Section 5 definition of Threshold Standards—the new definition being the Threshold Standards made under paragraph 58(1)(b).

2.20 Other minor amendments to the TEQSA Act would omit Provider Course Accreditation Standards and substitute Threshold Standards.

Simplifying and enhancing the higher education provider categories 2.21 At the request of the Minister for Education and as required by Section 58 of the TEQSA Act, the HESP has proposed changes to the HES Framework.19 These changes are designed to give effect to the PCS review recommendations

to simplify and enhance the higher education provider categories.20

2.22 The HESP's proposed changes reduce the number of university provider categories from five to two (Australian University and Overseas University) and increase the number of non-university provider categories from one to two (Institute of Higher Education and University College).21

2.23 The bill would make complementary amendments to the TEQSA Act in order to accommodate the proposed changes, including:

 Minor changes to language used in the TEQSA Act would reflect the new provider categories. References to "a provider category that permits the use of the word 'university'" would be replaced with references to either the

19 Higher Education Legislation Amendment (Provider Category Standards and Other Measures)

Bill 2020, Explanatory Memorandum, p. 2.

20 Higher Education Legislation Amendment (Provider Category Standards and Other Measures)

Bill 2020, Second Reading Speech, [p. 1].

21 Higher Education Legislation Amendment (Provider Category Standards and Other Measures)

Bill 2020, Second Reading Speech, [pp. 1–2].

8

Australian University or Overseas University categories, to account for the introduction of the new University College category (high quality non-university providers that would be permitted to use the term 'university' in their name).22  In relation to self-accreditation, registration in the new Australian

University category would not confer an automatic authority to self-accredit courses of study if the university has a specialised focus in accordance with the Threshold Standards.23 These universities would need to seek either TEQSA accreditation of courses outside their specialised fields of education, or the authority to self-accredit such courses.24  Clarification that some providers will be 'authorised to self-accredit some or

all of their courses of study' (rather than the previous 'authorised to self-accredit their courses of study').25

Introducing research quality measures 2.24 The current Threshold Standards contain the following research requirement for higher education providers seeking approval as an Australian University, Australian University College or Australian University of Specialisation:

The higher education provider undertakes research that leads to the creation of new knowledge and original creative endeavour at least in those broad fields of study in which Masters Degrees (Research) and Doctoral Degrees (Research) are offered.26

2.25 However, the Threshold Standards do not specify the quality or quantity of research required,27 or how this should be measured or assessed. 28 Recommendation 5 of the PCS review stated that:

Along with teaching, the undertaking of research is, and should remain, a defining feature of what it means to be a university in Australia; a

22 Higher Education Legislation Amendment (Provider Category Standards and Other Measures)

Bill 2020, Explanatory Memorandum, p. 3.

23 Dr Hazel Ferguson, Higher Education Legislation Amendment (Provider Category Standards and

Other Measures) Bill 2020, Bills Digest No. 14, 2020–21, Parliamentary Library, Canberra 2020, p. 11.

24 Higher Education Legislation Amendment (Provider Category Standards and Other Measures)

Bill 2020, Explanatory Memorandum, p. 20.

25 Higher Education Legislation Amendment (Provider Category Standards and Other Measures)

Bill 2020, sch 1, pt 1; Higher Education Legislation Amendment (Provider Category Standards and Other Measures) Bill 2020, Explanatory Memorandum, p. 18.

26 Higher Education Standards Framework (Threshold Standards) 2015, 7 October 2015,

paras. B1.2(3), B1.3(3) and B1.4(3).

27 Coaldrake, P. What’s in a Name? Review of the Higher Education Provider Category Standards – Final

Report, Commonwealth of Australia, October 2019, p. 33.

28 Higher Education Legislation Amendment (Provider Category Standards and Other Measures)

Bill 2020, Explanatory Memorandum, p. 21.

9

threshold benchmark of quality and quantity of research should be included in the Higher Education Provider Category Standards. This threshold benchmark for research quality should be augmented over time.29

2.26 The bill responds to this recommendation and proposes the inclusion of a section that would require TEQSA to have regard to the quality of research undertaken by an entity or provider that:

 applies to TEQSA for registration within the Australian University category; or  applies to change to the Australian University category.30

2.27 In addition, the bill would require TEQSA to have regard to research quality in relation to providers already registered in the Australian University category—for example, when making decisions about registration renewal in that category or undertaking compliance assessments under section 59 of the TEQSA Act.31

2.28 To support this requirement, the bill would enable TEQSA to make a determination, by legislative instrument, setting out the factors it will consider when assessing the quality and quantity of research.32

Assuming control of higher education student records 2.29 The Job-ready Graduates Package of higher education reforms included a measure to provide TEQSA with the legislative authority to assume control of higher education student records from a registered higher education provider

in the event the provider ceases operations.33

2.30 To give effect to this measure, the bill would add a proposed subdivision C (student records), which is comprised of the following proposed sections:

 197AA—higher education student records to be provided to TEQSA;  197AB—TEQSA may request higher education student records;  197AC—provision of higher education student records to another registered higher education provider;

 197AD—TEQSA's management of higher education student records; and

29 Coaldrake, P. What’s in a Name? Review of the Higher Education Provider Category Standards – Final

Report, Commonwealth of Australia, October 2019, p. vii.

30 Higher Education Legislation Amendment (Provider Category Standards and Other Measures)

Bill 2020, Explanatory Memorandum, pp. 20–21.

31 Higher Education Legislation Amendment (Provider Category Standards and Other Measures)

Bill 2020, Explanatory Memorandum, pp. 20–21.

32 Higher Education Legislation Amendment (Provider Category Standards and Other Measures)

Bill 2020, Explanatory Memorandum, p. 8.

33 Higher Education Legislation Amendment (Provider Category Standards and Other Measures)

Bill 2020, Second Reading Speech, [p. 3].

10

 197AE—compensation.

2.31 The Explanatory Memorandum notes that, while not explicitly stated in the provisions, students would have access to their personal information held by TEQSA under the Privacy Act 1988 and the Australian Privacy Principles to which TEQSA is subject.34

2.32 A definition of higher education student records, covering documents or objects in any form (including electronic form), would be inserted into Section 5 of the TEQSA Act.35

Other amendments to the TEQSA Act 2.33 The bill proposes a number of other amendments to the TEQSA Act that aim to improve higher education regulation.

Expanding the definition of a higher education award 2.34 Section 5 of the TEQSA Act defines higher education awards (for example 'a diploma, advanced diploma, associate degree, bachelor degree, graduate certificate, graduate diploma, masters degree or doctoral degree').36

2.35 The bill would expand the definition of 'higher education award' in the TEQSA Act by adding 'undergraduate certificate' after 'bachelor degree'. This reflects an agreement by the Council of Australian Government Education and Skills Councils to include Undergraduate Certificate in the Australian Qualifications Framework (from May 2020 to December 2021, unless extended by the Councils) as a qualification to upskill workers displaced by COVID-19.37

Extending registration periods 2.36 Currently, TEQSA may extend the period of a higher education provider's registration—so long as the period has not been extended previously by TEQSA. The bill would remove this qualifying statement, enabling TEQSA to

extend registration periods more than once.38

34 Higher Education Legislation Amendment (Provider Category Standards and Other Measures)

Bill 2020, Explanatory Memorandum, p 25.

35 Higher Education Legislation Amendment (Provider Category Standards and Other Measures)

Bill 2020, Explanatory Memorandum, p 23.

36 Tertiary Education Quality and Standards Agency Act 2011, section 5.

37 Higher Education Legislation Amendment (Provider Category Standards and Other Measures)

Bill 2020, Explanatory Memorandum, p. 23; Commonwealth of Australia, Addendum No. 3 to AQF Second Edition January 2013, Additional AQF Qualification: Undergraduate Certificate, p. 3.

38 Higher Education Legislation Amendment (Provider Category Standards and Other Measures)

Bill 2020, Explanatory Memorandum, p. 23.

11

Allowing review of decisions not to change a provider's registration category 2.37 The TEQSA Act currently enables TEQSA to change the category in which a provider is registered, either on application by the provider or on its own initiative.39

2.38 The bill would clarify that TEQSA may decide not to change a provider category in response to an application by a provider made under paragraph 38(1)(b). This addition would enable decisions not to change a provider's category to be reviewed by the Administrative Appeals Tribunal.40

2.39 The bill would also require TEQSA to:

 have regard to the Threshold Standards when making decisions about changing provider categories; and  notify providers in writing of decisions related to changing provider categories.41

Protecting the word 'university' in Australian internet domain names 2.40 Use of the word 'university' in an entity's name is protected by the Provider Category Standards. However, no protections currently apply to its use in domain names.42

2.41 This bill would insert a section into the TEQSA Act to specify that a licence must not be issued for a domain name that includes the word 'university'—or a word of expression with the same or similar name to the word 'university'— unless the Minister has provided written approval.43

Amending the Higher Education Support Act 2003 2.42 Schedule 2 to the bill would amend the Higher Education Support Act 2003 to replace references to 'Indigenous Students' with 'Indigenous Persons' and clarify the purpose for which grants under Part 2-2A may be made to higher

education providers. These amendments would confirm the existing arrangement that providers can use Indigenous student assistance grants to

39 Higher Education Legislation Amendment (Provider Category Standards and Other Measures)

Bill 2020, Explanatory Memorandum, p. 23.

40 Higher Education Legislation Amendment (Provider Category Standards and Other Measures)

Bill 2020, Explanatory Memorandum, p. 24.

41 Higher Education Legislation Amendment (Provider Category Standards and Other Measures)

Bill 2020, Explanatory Memorandum, p. 24.

42 Dr Hazel Ferguson, Higher Education Legislation Amendment (Provider Category Standards and

Other Measures) Bill 2020, Bills Digest No. 14, 2020–21, Parliamentary Library, Canberra 2020, p. 17.

43 Higher Education Legislation Amendment (Provider Category Standards and Other Measures)

Bill 2020, Explanatory Memorandum, pp. 27–28.

12

assist prospective Indigenous students as well as existing Indigenous students.44

2.43 Item 5 would also insert a new definition for Indigenous person into Schedule 1 of the Higher Education Support Act 2003. This definition would be the same definition as in the Indigenous Education (Targeted Assistance) Act 2000.45

Consideration by the Senate Standing Committee for the Scrutiny of Bills 2.44 The Senate Standing Committee for the Scrutiny of Bills considered the bill in the Scrutiny Digest 13 of 2020.46

2.45 The Scrutiny of Bills Committee raised concerns about the use—without sufficient justification—of delegated legislation to establish the Threshold Standards, as well as the approach to assessing the quality of research undertaken by higher education providers.

2.46 The Scrutiny of Bills Committee also pointed to the relative stability of the Threshold Standards since they came into force in 2011 as another argument for their inclusion in primary legislation, stating that:

It is therefore unclear to the committee why these important standards, which are central to the regulation and reputation of the higher education sector in Australia, cannot be included on the face of the primary legislation. Similarly, it is unclear to the committee why it would not be possible to set out in primary legislation matters relating to how the quality of research undertaken by higher education providers will be assessed, rather than leaving these matters to be determined in a legislative instrument made under proposed subsection 59A(7).47

2.47 Accordingly, the Scrutiny of Bills Committee requested the Minister provide advice as to:

 why it is considered necessary and appropriate to leave the standards making up the Higher Education Standards Framework, and matters relating to how the quality of research undertaken by higher education providers will be assessed, to delegated legislation;

44 Higher Education Legislation Amendment (Provider Category Standards and Other Measures)

Bill 2020, Explanatory Memorandum, p. 30.

45 Higher Education Legislation Amendment (Provider Category Standards and Other Measures)

Bill 2020, Explanatory Memorandum, p. 31.

46 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 13 of 2020, 7 October 2020,

pp. 12–13.

47 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 13 of 2020, 7 October 2020,

p. 13.

13

 whether the bill can be amended to include the standards and matters relating to how the quality of research undertaken by higher education providers will be assessed on the face of the primary legislation; and  if it is not considered appropriate to include the standards and matters

relating to the quality of research on the face of the primary legislation, whether at least high-level guidance in relation to what may be included in the standards made under proposed subsection 58(1) and instruments made under proposed subsection 59A(7) can be set out in the primary legislation.48

2.48 In response, the Minister advised it was appropriate for the Threshold Standards—including the research benchmarks—to remain in delegated legislation given the need for ongoing monitoring and review in response to evolving practice. The Minister also pointed to the protections built into the process for making or amending the Threshold Standards, which include scrutiny by stakeholders, expert advice from the HESP, state and territory government input and Parliamentary review. The Minister further argued that:

…while primary legislation can appropriately constrain a delegated legislation-making process, it would be unusual to similarly constrain the power of Parliament to make changes if the Threshold Standards were incorporated directly within the TEQSA Act. This could put at risk the acceptance, ownership and effective consent of those being regulated to the terms on which their operation is permitted.49

2.49 In terms of providing high-level guidance in the TEQSA Act, the Minister noted that this could work against future reform and innovation:

…precedence and consensus play a very significant role in guiding the evolution or replacement of content within the Threshold Standards, to the point that any guidance overlayed by provisions of the TEQSA Act could be seen as stifling the opportunity for reform and innovation. Indeed, amendments in the Bill respond to advice from the Panel and independent review findings that even the very high level guidance previously embedded in the TEQSA Act was unhelpful and should be removed.50

2.50 While it welcomed the Minister's response, the Scrutiny of Bills Committee reiterated its concern about the Threshold Standards being established via delegated legislation. It argued that including the Threshold Standards in

48 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 13 of 2020, 7 October 2020,

p. 13.

49 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 16 of 2020, 20 November 2020,

pp. 52 and 57.

50 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 16 of 2020, 20 November 2020,

p. 56.

14

primary legislation would not prevent future changes and could still allow for extensive consultation processes.51

Compatibility with human rights 2.51 The statement on compatibility with human rights for the bill concluded it 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 2011.52

2.52 The Parliamentary Joint Committee on Human Rights made no comment on the bill as it found it '[does] not engage, or only marginally engage[s], human rights; promote[s] human rights; and/or permissibly limit[s] human rights'.53

Financial impact statement 2.53 The student records management provisions in the bill are expected to cost the Australian Government $2 million over four years from 2020–21. The other measures in the bill have no financial implications.54

51 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 16 of 2020, 20 November 2020,

p. 58.

52 Higher Education Legislation Amendment (Provider Category Standards and Other Measures)

Bill 2020, Explanatory Memorandum, p. 7.

53 Parliamentary Joint Committee on Human Rights, Report 11 of 2020, 24 September 2020, pp. 81–82.

54 Higher Education Legislation Amendment (Provider Category Standards and Other Measures)

Bill 2020, Explanatory Memorandum, p. 5.

15

Chapter 3 Views on the bill

3.1 This chapter explores the extent of support for the provisions of the bill and examines specific concerns raised by participants during the inquiry.

General views on the bill 3.2 There was broad stakeholder support for the bill,1 which would give effect to recommendations arising from the 2016–17 impact review and the 2019 Provider Category Standards (PCS) review, as well as a number of provisions

designed to improve regulation of the higher education sector. As articulated by the University of New England, the bill would:

… give clarity regarding a range of measures that have arisen from recent recommendations and decisions, and enhance the operation of regulation in the Australian higher education sector.2

3.3 Support for the impact review findings included agreement with the recommendation to reframe the Threshold Standards as a single unified framework, rather than the four distinct types of standards currently specified in the Tertiary Education Quality and Standards Agency Act 2011 (the TEQSA Act). The Innovative Research Universities, along with other submitters, noted this change would improve the clarity of the Threshold Standards, making them easier for higher education providers, students and other stakeholders to use.3

3.4 Some universities highlighted the largely facilitative nature of the bill,4 noting the most significant changes would arise from the modified Threshold Standards, which would come into effect on the same date as the relevant provisions of the bill.5

3.5 The facilitative nature of the bill was reflected in the number of submissions that expressed general agreement with the findings of the PCS review and the

1 See, for example, Innovative Research Universities, Submission 13, p. 1; Regional Universities

Network, Submission 3, [p. 1]; University of Melbourne, Submission 18, p. 2; Western Sydney University, Submission 17, p. 3; University of Canberra, Submission 23, p. 5; Monash University, Submission 22, [p. 1]; University of Southern Queensland, Submission 12, [p. 1]; Bond University, Submission 7, [p. 1]; Independent Higher Education Australia, Submission 21, pp. 1–4; Independent Tertiary Education Council Australia, Submission 11, p. 2.

2 University of New England, Submission 2, [p. 1].

3 Innovative Research Universities, Submission 13, p. 4.

4 See, for example, Group of Eight, Submission 24, p. 1; Innovative Research Universities,

Submission 16, p. 1; Independent Tertiary Education Council Australia, Submission 11, p. 1.

5 Explanatory Memorandum, pp. 2–3.

16

subsequent changes proposed by the Higher Education Standards Panel (HESP).6 There was also recognition of the extensive stakeholder engagement that underpinned these activities. For example, in conveying its support, the University of Canberra referred to the 'comprehensive consultation undertaken around [the] review of the Provider Category Standards'.7

3.6 The Department of Education, Skills and Employment (the department) also emphasised the extent of consultations undertaken by the PCS review and the HESP, and observed there was strong sector support for 'both the broad direction of the proposed changes … and their expression in the draft standards'.

3.7 Support for the proposed changes included agreement with the proposal to reduce the number of provider categories from six to four, with some universities noting the new categories would be simpler and allow greater differentiation between provider types.8

3.8 There was strong support for the introduction of research quality benchmarks, which were recognised by many submitters as a means of promoting and safeguarding the quality of Australian universities. For example, Universities Australia argued the benchmarks would 'reinforce the drivers of quality and excellence that underpin the success of the Australian university system'.9

3.9 Support was also expressed for the proposal to strengthen industry engagement, civic leadership, and community engagement requirements for higher education providers.10

3.10 While the proposed changes to the Threshold Standards were broadly endorsed, a number of universities raised concerns about the name of the proposed University College provider category.11 Different views were also expressed in relation to how TEQSA should assess research quality,12 with

6 Universities Australia, Submission 16, p. 2; Australian Technology Network of Universities,

Submission 15, p. 1; University of Melbourne, Submission 18, p. 1.

7 University of Canberra, Submission 23, p. 5.

8 See, for example, University of Melbourne, Submission 18, p. 1; Charles Sturt University,

Submission 14, p. 3; University of Western Australia, Submission 9, [p. 1].

9 Universities Australia, Submission 16, p. 2.

10 See, for example, Universities Australia, Submission 16, p. 1; Charles Sturt University,

Submission 14, p. 8; University of Canberra, Submission 23, p. 4.

11 See, for example, Universities Australia, Submission 16, p. 2; Innovative Research Universities,

Submission 13, p. 1; Queensland University of Technology, Submission 5, p. 2; Edith Cowan University, Submission 6, p. 1; Swinburne University, Submission 25, [p. 1].

12 See, for example, National Tertiary Education Union, Submission 4, p. 2; Western Sydney

University, Submission 17, p. 1.

17

some submitters wanting more detail in the bill itself. Other submitters highlighted the bill’s interaction with broader changes to university funding.13

3.11 Many stakeholders also encouraged ongoing consultation with the sector as the changes to the Threshold Standards are implemented.14 This was acknowledged by Professor Nicholas Saunders, Chief Commissioner, TEQSA, who stated that:

… collaboration has been a hallmark of our approach, and this will be no different. We will consult extensively and collaborate to make sure that we have the very best system in place that we can put in place.15

3.12 There was support for other provisions of the bill, including the proposed change to the Higher Education Support Act 2003 relating to Indigenous student assistance grants, as well as other amendments to the TEQSA Act that would:

 give TEQSA the ability to take control of student records in the event a provider ceased operation;  include undergraduate certificates as a higher education award type;  allow TEQSA to extend a provider’s registration or course accreditation

more than once;  allow a merit review of a decision by TEQSA not to change a provider’s category; and  protect the word 'university' in Australian internet domain names.16

3.13 Some submitters raised concerns about particular aspects of these changes, including the broad definition of student records and potential privacy implications of the related provisions17 and the scope and wording of the amendment relating to use of the term 'university' in domain names.18

3.14 Many submitters who raised concerns or recommended changes to the bill did not object to its passage; some even expressed explicit support for the bill and its aims. For example, Western Sydney University reflected that:

13 Group of Eight, Submission 24, p. 1; University of Melbourne, Submission 18, p. 2; Charles Sturt

University, Submission 14, p. 4.

14 See, for example, Australian Technology Network of Universities, Submission 15, p. 2; University of

Western Australia, Submission 9, [p. 2]; Monash University, Submission 22, [p. 2].

15 Proof Committee Hansard, 4 November 2020, p. 26.

16 See, for example, Independent Higher Education Australia, Submission 21, p. 4; Innovative

Research Universities, Submission 13, p. 3; Regional Universities Network, Submission 3, [p. 1].

17 See, for example, Australian Network of Technology Universities, Submission 15, pp. 2–3;

Australian Catholic University, Submission 1, p. 6; Western Sydney University, Submission 17, p. 2.

18 Universities Australia, Submission 16, pp. 3–4; Australian Catholic University, Submission 1,

pp. 6–7.

18

The University has offered some comments but overall feels the intent of the legislation remains strong and focusses on maintaining a high-quality Australian higher education sector.19

3.15 Other stakeholders, including the Innovative Research Universities, the University of Melbourne, Western Sydney University and the University of Canberra were unequivocal in recommending that the Senate pass the bill.20

Comment on specific aspects of the bill

Simplifying the provider category standards 3.16 Submitters were generally positive about the streamlined provider categories. For example, the University of Melbourne indicated the new categories would better reflect the make-up of Australia’s higher education sector and be easier

to understand.21

3.17 Stakeholders also acknowledged the extensive consultation process that informed the development of the new provider category standards.22 This included submissions to the PCS review and the HESP, as well as face-to-face meetings, a stakeholder forum, workshops and webcasts.23

3.18 The National Aboriginal and Torres Strait Islander Higher Education Consortium questioned whether the loss of the previous 'Australian University of Specialisation' category and the introduction of new benchmarks would potentially make it more difficult to establish an Indigenous university in the future:

I think in discussions that we have had around the sector around this question it hasn't been clear that that pathway is still as clear as it was with the current standards.24

3.19 However, it was also noted that the PCS review recommended including universities with a specialised focus in the proposed Australian University category, with course offering and research requirements limited to one or two broad fields of education.25 The draft provider category standards also set out

19 Western Sydney University, Submission 17, p. 3.

20 Innovative Research Universities, Submission 13, p. 1; University of Melbourne, Submission 18, p. 2;

Professor Simon Barrie, Deputy Vice-Chancellor and Vice-President (Academic), Western Sydney University, Proof Committee Hansard, 4 November 2020, p. 7; University of Canberra, Submission 23, p. 5.

21 University of Melbourne, Submission 18, p. 1.

22 Group of Eight, Submission 24, p. 2; University of Canberra, Submission 23, p. 1.

23 Department of Education, Skills and Employment, Submission 20, p. 6.

24 Professor Steve Larkin, Chief Executive Officer, Batchelor Institute of Indigenous Tertiary

Education, Proof Committee Hansard, 4 November 2020, p. 21.

25 Proof Committee Hansard, 4 November 2020, p. 21.

19

the proposed approach to allow universities with a specialised focus to be classified as Australian Universities.26

3.20 The majority of stakeholder concerns about the standards related to the proposed University College category. While not objecting to the creation of the category itself, a significant number of organisations raised concerns about its name, noting that the PCS review had originally proposed the title 'National Institute of Higher Education'.27

3.21 These concerns generally centred around the potential for the term University College to confuse or mislead students, employers and the general public— particularly as the term is currently used to describe on-campus residential accommodation, or small educational associations that are associated with universities.28 To this end, the Queensland University of Technology suggested reverting to the title proposed by the PCS review, while other submitters proposed alternative titles, such as 'Higher Education College' or 'College of Higher Education'.29

3.22 The department explained that adoption of the name 'University College' responded to the concerns of some stakeholders at the loss of the 'Australian University College' category. It emphasised that this category was always intended to be a transitional category for providers seeking eventual registration as an Australian University—but that technical issues had limited its uptake.30

3.23 A similar view was expressed by Independent Higher Education Australia, which supported the name 'University College', noting it was an internationally recognised term and an existing category that had been in use since 2011.31

3.24 Universities Australia suggested that extending the use of the word 'university' to institutions without a research capability—or an affiliation to a university with a research capability—risked diminishing the reputation of

26 Higher Education Standards Panel, Amending the Higher Education Standards Framework: Provider

Category Standards—Consultation Paper, Commonwealth of Australia, February 2020, p. 32.

27 See, for example, Universities Australia, Submission 16, p. 2; Innovative Research Universities,

Submission 13, p. 1; Queensland University of Technology, Submission 5, p. 2; Australian Catholic University, Submission 1, p. 4; National Tertiary Education Union, Submission 4, p. 4.

28 See, for example, Innovative Research Universities, Submission 13, p. 1; Swinburne University,

Submission 25, [p. 1]; Edith Cowan University, Submission 6, p. 1.

29 Queensland University of Technology, Submission 5, p. 3; National Tertiary Education Union,

Submission 4, p. 4; Edith Cowan University, Submission 6, p. 1.

30 Department of Education, Skills and Employment, Submission 20, pp. 5–6.

31 Independent Higher Education Australia, Submission 21, p. 2.

20

Australia’s higher education sector.32 This concern was shared by the National Tertiary Education Union, which argued:

The term university should be used to denote that a higher education provider has met certain threshold standards ... We are concerned that the reputation of Australia’s world class universities could be undermined by either international students or others not having their expectations met on the understanding they were dealing with an organisation they believed had university status.33

3.25 In response, the department emphasised the protections for the term 'university', including that providers wanting to use the University College category 'will need to both meet the standards set by TEQSA … and … use the term 'university college' consistently and together'.34

3.26 Despite its stated concerns, Universities Australia also referred to these protections as the basis of its support for the bill:

… as the government has made a policy decision to implement the university college category, the bill under consideration provides important protections on the use of the word 'university', and that is important. On this basis, Universities Australia supports the bill. 35

3.27 The protections were also supported by Independent Higher Education Australia as a means of protecting 'the status and transparency of both the University College and Australian University categories'.36

Clarifying research requirements for universities 3.28 Many submitters supported the introduction of research quality benchmarks, which would serve to protect the reputation of Australia’s university sector. 37 For example, Universities Australia argued that the provision:

… further affirms the vital role of universities in undertaking research that benefits the Australian community. Instituting these benchmarks reinforces the drivers of quality and excellence that underpin the success of the Australian university system.38

32 Universities Australia, Submission 16, p. 2.

33 National Tertiary Education Union, Submission 4, p. 4.

34 Mr Dom English, First Assistant Secretary, Higher Education Division, Department of Education,

Skills and Employment, Proof Committee Hansard, 4 November 2020, p. 36.

35 Ms Catriona Jackson, Chief Executive, Universities Australia, Proof Committee Hansard,

4 November 2020, p. 1.

36 Independent Higher Education Australia, Submission 21, p. 2.

37 See, for example, Universities Australia, Submission 16, p. 2; Western Sydney University,

Submission 17, p. 1; University of Canberra, Submission 23, p. 4.

38 Universities Australia, Submission 16, p. 2.

21

3.29 While supportive, some stakeholders noted a lack of detail about the way in which the benchmarks will be assessed, including the measures to be used and how they will be applied. The University of Western Australia asserted:

First, a range of indicators have been suggested but the report states that the measures to be used by TEQSA are those that it deems acceptable. While the final report makes suggestions, it does not clearly determine which will be used and the reasons for their relevance or appropriateness. Second, there is not any distinction or clarification regarding the types of research that would be applicable in terms of their inclusion into the measurement of research.39

3.30 In the absence of detail, the University of Southern Queensland cautioned that simplistic definitions of quality could drive a narrow set of behaviours across the sector.40 Similarly, the University of Canberra highlighted the need for diversity in the sector and urged TEQSA to maintain a balanced view of differing university missions as it implemented the new standards.41

3.31 Some universities suggested that the clarity of the research quality provisions could be improved. For example, while recommending the Senate pass the provisions, the Australian Catholic University also proposed a set of guiding principles, which it argued should be reflected in the Threshold Standards.42

3.32 Other stakeholders called for the benchmarks to be defined in legislation. Western Sydney University suggested it would be useful to define research quality within the bill in order to '… better guide TEQSA and providers in assessing this benchmark'.43 Similarly, the Queensland University of Technology asserted that the means and standards for determining research quality should be decided by Parliament, rather than being delegated to Ministers.44

3.33 This approach was opposed by Professor Duncan Bentley, Vice Chancellor and President, Federation University Australia, who warned:

The danger of putting everything into legislation, which is a popular approach when people are looking at law, is that it becomes much more rigid, much harder to change, and we are going to have to adapt and change to the changing world of research over the next 20 years …45

39 University of Western Australia, Submission 9, [p. 2].

40 University of Southern Queensland, Submission 12, [p. 1].

41 University of Canberra, Submission 23, p. 5.

42 Australian Catholic University, Submission 1, p. 3.

43 See, for example, University of Southern Queensland, Submission 12, [p. 2]; Western Sydney

University, Submission 17, p. 1.

44 Queensland University of Technology, Submission 5, p. 3.

45 Proof Committee Hansard, 4 November 2020, p. 12.

22

3.34 Maintaining the current balance between primary and delegated legislation was also preferred by the department, which noted that bringing elements of regulation into the bill would not alter the standard being set but would 'reduce capacity over time to manage within that framework'.46

3.35 Innovative Research Universities also acknowledged that the disallowance process provided a useful mechanism for scrutiny of any instrument developed by TEQSA to assess research quality. However, it also noted that TEQSA does not require an instrument to be made in order to make decisions regarding research quality.47

3.36 Concern about the level of detail in the bill was not universal. For example, the University of Melbourne observed that while the detail of the benchmark is not provided in the bill, 'the basic principle of setting benchmarks for research quality is sound'.48

3.37 Notwithstanding their individual views on the level of detail in the bill, a number of submitters underscored the importance of sector engagement to successful implementation of the provisions.49 For example, the University of Western Australia highlighted the need for 'an agreed sector wide measurement model' to ensure fair and transparent assessments.50

3.38 The Australian Technology Network of Universities (ATN) suggested that a consultation or review mechanism should apply to TEQSA’s development process—in line with existing requirements for the Threshold Standards:

ATN appreciates that the quality of research is a new requirement and it is potentially not possible to codify a definition within the Standards and that the specific detail must sit outside of the Standards. However, to aid TEQSA and the Minister in making a definition that is appropriate and fit-for-purpose, we suggest there be a mechanism for review or consultation of the quality of research matters.51

3.39 In a similar vein, the Australian Academy of Technology and Engineering raised concerns about TEQSA having sole responsibility for determining matters of research quality, without necessarily requiring it to be transparent when developing its approach to assessments.52

46 Mr Dom English, First Assistant Secretary, Higher Education Division, Department of Education,

Skills and Employment, Proof Committee Hansard, 4 November 2020, p. 32.

47 Innovative Research Universities, Submission 13, p. 3.

48 University of Melbourne, Submission 18, p. 1.

49 See, for example, Australian Technology Network of Universities, Submission 15, p. 2; University of

Western Australia, Submission 9, [pp. 2–3].

50 University of Western Australia, Submission 9, [p. 2].

51 Australian Technology Network, Submission 15, p. 2

52 Australian Academy of Technology and Engineering, Submission 19, p. 1.

23

3.40 While the National Aboriginal and Torres Strait Islander Higher Education Consortium indicated it was not concerned about TEQSA making determinations under the research provision, it stressed the need for Indigenous representation in making those decisions.53

3.41 The desire of stakeholders to be involved in implementation of the research requirements was also reflected in the department’s submission, which noted that several universities had expressed interested in working with TEQSA to develop guidance on how the research benchmarks will be assessed.54

3.42 Some submitters highlighted the importance of the HESP in any consultation process. Universities Australia went further and argued that the HESP, rather than TEQSA, should be responsible for determining matters relating to research quality—given the HESP’s expertise and its role in developing the Threshold Standards.55

3.43 Despite these concerns, Universities Australia expressed confidence in the government’s intention to work with the sector:

We note that many of our members have called for additional consultation on how the new research benchmarks will work, and we think this is important. These matters are outside the direct changes made by the bill and we are confident the government will continue to work constructively with the sector on these matters.56

3.44 The commitment to ongoing consultation was reinforced by

Professor Nicholas Saunders, Chief Commissioner, TEQSA:

We agree with many of the submissions that emphasise the need for TEQSA to engage in consultation about any research thresholds or research measurements. We agree with that. We obviously do need to consult and we will be consulting.57

3.45 TEQSA also assured the committee it would consult with the HESP.58

Research quality assessment frameworks 3.46 Views were mixed about the use of existing assessment frameworks such as Excellence in Research for Australia (ERA) and Engagement and Impact (EI).

53 Dr Leanne Holt, Chair, National Aboriginal and Torres Strait Islander Higher Education

Consortium, Proof Committee Hansard, 4 November 2020, p. 17.

54 Department of Education, Skills and Employment, Submission 20, p. 9.

55 Universities Australia, Submission 16, p. 4.

56 Ms Catriona Jackson, Chief Executive, Universities Australia, Proof Committee Hansard,

4 November 2020, p. 1.

57 Proof Committee Hansard, 4 November 2020, p. 23.

58 Professor Peter Coaldrake, Commissioner, Tertiary Education Quality and Standards Agency,

Proof Committee Hansard, 4 November 2020, p. 27.

24

3.47 For example, use of the ERA was strongly supported by Western Sydney University, which took the view that the bill should refer explicitly to the ERA. It also suggested that where 'ERA benchmarks are not available, TEQSA should have regard to the type of factors intrinsic to ERA'.59

3.48 Conversely, Bond University argued for a more nuanced approach to assessment and cautioned against undue weight being given to certain metrics simply because they are readily available.60

3.49 The National Tertiary Education Union suggested that a broader range of indicators would need to be considered:

… when you're trying to measure or come up with some determinant of the quality of research, there need to be a variety of measures and factors taken into account that are both qualitative and quantitative in nature.61

3.50 While supporting the use of established mechanisms, Universities Australia reminded the committee of the PCS review report suggestion that other metrics and criteria would be needed to supplement ERA scores and agreed that 'using only ERA in all cases would be a bit limiting'.62

3.51 This was an issue highlighted by Dr Leanne Holt, Chair, National Aboriginal and Torres Strait Islander Higher Education Consortium, who argued for flexibility in TEQSA’s approach in order to allow for consideration of global benchmarks for Indigenous research.63

3.52 In response, Professor Nicholas Saunders, Chief Commissioner, TEQSA, stated it would be 'absolutely essential' to have measures beyond the ERA, given TEQSA would be required to make judgements about research of national standing, which would require 'using approaches, metrics, indicators, both quantitative and qualitative, that sit outside the ERA processes'. In addition, Professor Saunders noted that TEQSA would also need to assess the performance of institutions that would not have participated in the ERA.64

3.53 Other stakeholders raised concerns about the ERA itself, primarily in relation to its ability to assess the quality of humanities and social science (HASS) research. For example, the University of Southern Queensland cautioned that:

59 Western Sydney University, Submission 17, pp. 1–2.

60 Bond University, Submission 7, [p. 1]

61 Mr Paul Kniest, Director, Policy and Research, National Tertiary Education Union, Proof Committee

Hansard, 4 November 2020, p. 22.

62 Mr Mike Teece, Policy Director, Academic, Universities Australia, Proof Committee Hansard,

4 November 2020, p. 5.

63 Proof Committee Hansard, 4 November 2020, p. 19.

64 Proof Committee Hansard, 4 November 2020, p. 23.

25

As a comparative measure, ERA is acceptable for highlighting the differences in research performance between universities. However, it is not effective in measuring overall research quality owing to the different assessment regimes for different disciplines.65

3.54 The difference in outcomes between science and HASS disciplines was noted by the National Tertiary Education Union, which also argued that universities were able to manipulate their ERA results.66

3.55 Professor Duncan Bentley, Vice Chancellor and President, Federation University Australia, disputed the proposition that gaming the ERA was a fundamental issue. However, he acknowledged the difference in HASS outcomes and suggested it was a result of the methodology used to assess research in these fields.67 This view was also supported by the Regional Universities Network:

I think … the way the HASS disciplines… are assessed … probably needs a review, given that is by peer review. Consistently the HASS disciplines in general have rated lower in ERA than the STEM disciplines, which are assessed via citations. I think with the STEM disciplines it's a robust method. You could say it can be compared to world standard, whereas I think the assessment for the HASS disciplines is less clear.68

3.56 Some submitters pointed to the current Australian Research Council (ARC) review of the ERA and EI and suggested the results should be used to inform TEQSA’s development of research benchmarks.69 Conversely, the Group of Eight argued that the ARC should consider TEQSA’s potential use of the ERA as part of its review.70

3.57 In response, Professor Nicholas Saunders, Chief Commissioner, TEQSA, acknowledged the ERA review and underlined its value in informing TEQSA’s approach. Professor Saunders also stated his commitment to ensuring 'the outcomes of a research evaluation are fair to all disciplines and have minimal chance of being gamed'.71

65 University of Southern Queensland, Submission 12, [p. 2].

66 National Tertiary Education Union, Submission 4, p. 2.

67 Proof Committee Hansard, 4 November 2020, p. 12.

68 Dr Caroline Perkins, Executive Director, Regional Universities Network, Proof Committee Hansard,

4 November 2020, p. 12.

69 See, for example, Australian Academy of Technology and Engineering, Submission 19, p. 1;

University of Southern Queensland, Submission 12, [p. 2].

70 Group of Eight, Submission 24, p. 3.

71 Proof Committee Hansard, 4 November 2020, p. 27.

26

Ability of universities to meet the research benchmarks 3.58 Overall, there was general support for the view that all public Australian universities would be able to meet the research benchmarks. For example, Universities Australia indicated it had no concerns about its members:

As you will appreciate, we have had many conversations with members about whether they have concerns about their status under this bill. At no point through the now quite lengthy process that this set of

recommendations from Peter Coaldrake's have been under consideration have universities been concerned about qualifying.72

3.59 However, analysis by the Group of Eight found that for institutions currently registered in the Australian University category:

 three would be under the 30 per cent level for the PCS standards up to 2030;  a further two would be under the 50 per cent level for 2030 PCS standards; and  a further four may be considered ‘at risk’ (sitting between

50 and 60 per cent).73

3.60 This aligned with the department’s analysis, which suggested that while all public Australian universities would meet the initial 30 per cent level, some smaller private universities may struggle if assessed on ERA ratings alone. For this reason, it noted that TEQSA would need to consider alternative data sources for these institutions.74 TEQSA also pointed out that these organisations would have five years to develop their performance.75

3.61 In addition to the transitional provisions in the new Threshold Standards— which would provide five years for universities to meet the 30 per cent benchmark and 10 years to meet the 50 per cent benchmark—the department stated there would also be scope for a grace period for remedial action prior to sanctions being warranted.76

3.62 The department further advised the committee that it expected TEQSA’s approach would recognise the potential impact of external factors, such as the COVID-19 pandemic:

We don't want longstanding well-performing institutions affected by short-term disruptions to their operations that have an ongoing effect on their standing in the sector … I expect that TEQSA would take exactly that

72 Ms Catriona Jackson, Chief Executive, Universities Australia, Proof Committee Hansard,

4 November 2020, p. 3.

73 Group of Eight, Submission 24, pp. 2–3.

74 Department of Education, Skills and Employment, Submission 20, pp. 7–8.

75 Professor Nicholas Saunders, Chief Commissioner, Tertiary Education Quality and Standards

Agency, Proof Committee Hansard, 4 November 2020, p. 25.

76 Department of Education, Skills and Employment, Submission 20, p. 8.

27

sort of approach on a provider-by-provider basis should there be an issue with the provider meeting the standard in a particular period of time because of disruption to their income flows or other activities.77

3.63 Some submitters raised concerns about the potential unintended consequences that could arise from TEQSA’s assessments of research quality. For example, the National Tertiary Education Union cautioned that universities could try to manipulate the system by eliminating 'weak' areas of research:

… the threat is that, in order to shore up their position, a number of universities will actually try to rearrange the way they operate and effectively within the institution part become teaching only.78

3.64 The University of Canberra also expressed concerns for younger or smaller universities that may not have the resources to meet the required benchmarks. It argued this could lead to universities resourcing particular areas of teaching to the detriment of others (a 'two-tier' system), or ceasing areas of teaching where they lack the resources to meet research benchmarks.79

3.65 However, the Hon Dan Tehan MP, Minister for Education, contended that as the research benchmarks focused on quality rather than quantity, they would not inherently disadvantage smaller institutions. In particular, he highlighted the 'research of national standing' benchmark, which would ensure that smaller research programs, focused on community and national needs, would be acknowledged, respected and valued.80

3.66 Professor Nicholas Saunders, Chief Commissioner, TEQSA, also assured the committee that TEQSA would seek to minimise the risk of perverse outcomes:

… through consultation and having an approach of putting in place some form of expert panel to give us oversight and guidance, that any additional measures that we were to introduce would in fact be run past peer review and run past experts in the field of research evaluation to ensure that those sorts of outcomes would be minimised.81

Interaction with broader changes to university research funding 3.67 Some submissions made reference to the additional $1 billion investment in the Research Support Program provided in the 2020–21 Budget. In welcoming the additional funding, the University of Melbourne observed that:

77 Mr Dom English, First Assistant Secretary, Higher Education Division, Department of Education,

Skills and Employment, Proof Committee Hansard, 4 November 2020, pp. 37–38.

78 Mr Paul Kniest, Director, Policy and Research, National Tertiary Education Union, Proof Committee

Hansard, 4 November 2020, p. 22.

79 University of Canberra, Submission 23, p. 5.

80 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 16 of 2020, 20 November 2020,

p. 55.

81 Proof Committee Hansard, 4 November 2020, p. 25.

28

This is a major one-off funding intervention that will help safeguard Australia’s research system from the impact of the pandemic in the short term. The Government is to be commended for this. 82

3.68 However, these submissions also highlighted the need for a longer-term solution, particularly in the wake of the changes introduced under the Job-ready Graduates Package,83 with the Group of Eight asking the committee to note 'the need for research reform and supporting research excellence at scale that forms part of the proper framework in which the provider category standards sit'.84

3.69 Charles Sturt University stated sufficient transition time would be needed and that some providers might struggle to meet research quality benchmarks without structural adjustment funding. It also suggested there was a need to redistribute research funding, arguing that current policy settings and metrics were skewed towards large metropolitan universities.85

3.70 In terms of transition time, the department highlighted the proposed five and ten year transition periods before universities would need to demonstrate compliance with the new benchmarks. It also pointed to the flexibility of TEQSA’s approach to regulatory action:

As with any element of the Threshold Standards, if TEQSA were to find that a provider was unable to demonstrate compliance with research quality benchmark, any regulatory action would also include scope for remedial action and a period of grace within which to improve performance before any regulatory sanction might be warranted.86

3.71 The Regional Universities Network (RUN) also noted the additional support being provided for regional universities via the $49 million regional research fund under the Job-ready Graduates Package, as well as the additional $1 billion in the Research Support Program. Its early estimates showed:

… there should be around an additional $30 million coming to RUN university members through that allocation. I think those are important funding support mechanisms that will assist regional universities to continue to increase their progress in this respect.87

82 University of Melbourne, Submission 18, p. 2.

83 See, for example, Australian Technology Network of Universities, Submission 15, p. 1; Charles Sturt

University, Submission 14, p. 4; University of Melbourne, Submission 18, p. 2.

84 Group of Eight, Submission 24, p. 3.

85 Charles Sturt University, Submission 14, p. 3–4.

86 Department of Education, Skills and Employment, Submission 20, p. 8.

87 Professor Helen Bartlett, Chair, Regional Universities Network, Proof Committee Hansard,

4 November 2020, p. 13.

29

Transferring student records 3.72 There was general support for the intent of this provision, which allows TEQSA to assume control of student records in the event a provider ceases operation and facilitates the transfer of student records between providers

when a student changes providers.88 However, a number of universities raised concerns with proposed section 197AC, which would facilitate the transfer of student records from one entity to another where a student changed providers. The transfer of records could be triggered by a request from the student or another higher education provider.

3.73 Concerns centred on the breadth of the proposed definition of 'higher education student records' and potential contravention of the Privacy Act 1988. Multiple submitters expressed concern about the proposed definition of higher education student records, which refers to:

… a document, or an object, in any form (including any electronic form) that is held by the entity because of the document’s or object’s connection with a person who is or was enrolled in an accredited course provided by the entity.89

3.74 The Australian Technology Network of Universities cautioned that the proposed definition would potentially include personal information that would not be needed by the new provider to carry out its duties.90 This view was supported by Edith Cowan University, which also noted the provision could place an undue burden on institutions given the records 'may be held in multiple systems, may be confidential or sensitive, and most are of limited relevance to the receiving institution'.91 The Australian Catholic University also noted the potential for this provision to create a 'significant and unnecessary additional workload', particularly as students can apply to more than one alternative institution when seeking to transfer.92

3.75 As an alternative approach, the Australian Technology Network of Universities suggested the definition of 'higher education student records' could be amended to refer to (or match) the definition of 'higher education certification documentation' outlined in the Threshold Standards,93 which

88 See, for example, the Australian Technology Network of Universities, Submission 15, p. 2;

Independent Higher Education Australia; Submission 21, p. 4; Western Sydney University, Submission 17, p. 2; Swinburne University, Submission 25, [p. 2].

89 Proposed section 5, Higher Education Legislation Amendment (Provider Category Standards and Other

Measures) Bill 2020.

90 Australian Technology Network of Universities, Submission 15, p. 2.

91 Edith Cowan University, Submission 6, p. 2.

92 Australian Catholic University, Submission 1, p. 6.

93 Australian Technology Network of Universities, Submission 15, p. 2–3.

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would limit the definition to items relevant to enrolment at a new institution. This approach was also supported by Swinburne University.94

3.76 The Australian Catholic University contended there would be privacy concerns in allowing providers to request student records without their knowledge or authorisation. It argued for the bill to be revised to align with the Privacy Act 1988, stating the current provision:

… is in direct contravention of the Privacy Act 1988. There is no proposed carve-out in the Bill for the requesting entity to request this personal information because it is required, or authorised by/under an Australian law or a court/tribunal order (a specific carve out in the Privacy Act 1988). 95

3.77 For this reason, some submitters argued that consideration should be given to requiring students to authorise the transfer of records,96 while others contended that students should have sole responsibility for providing their new institution with the information required for enrolment.97

Expanding the definition of a higher education award to include undergraduate certificates 3.78 There was support for including undergraduate certificates in the definition of a higher education award.98

3.79 However, concerns were raised by the National Tertiary Education Union about the impact of this provision on the nature and funding of higher education, citing concerns that it could become:

… the first step to further deregulation and greater competition and contestability of funding within higher education.99

3.80 This view was not shared by Ms Catriona Jackson, Chief Executive, Universities Australia, who stated:

I don't think you could reach those conclusions from the bill before us … I certainly can't see the potential for any of those things out of this bill.100

3.81 The department also pointed to the technical nature of the amendment, noting it would take account of the new qualification type, which was created in response to the COVID-19 pandemic. It also highlighted the role of the COAG

94 Swinburne University, Submission 25, [p. 2].

95 Australian Catholic University, Submission 1, p. 6.

96 Western Sydney University, Submission 17, p. 2.

97 Australian Catholic University, Submission 1, p. 6; Edith Cowan University, Submission 6, p. 2.

98 See, for example, Australian Catholic University, Submission 1, p. 5; Western Sydney University,

Submission 17, p. 2; University of Southern Queensland, Submission 12, [p. 2]; Independent Higher Education Australia, Submission 21, p. 4.

99 National Tertiary Education Union, Submission 4, p. 8.

100 Proof Committee Hansard, 4 November 2020, p. 5.

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Education and Skills Councils in deciding whether it should continue beyond December 2021.101

Protecting the term 'university' in domain names 3.82 There was general support for the proposal to require Ministerial approval of domain names using the word 'university' (or similar terms). For example, the Australian Technology Network of Universities endorsed extending

protections for the term and noted that:

… university is an important and trusted mark of quality … and a signifier of research and teaching excellence, so it should be protected from misuse and dilution.102

3.83 However, the Australian Catholic University argued there was a need for greater clarity in relation to how domain names registered overseas would be dealt with.103 This view was shared by Universities Australia, which argued that even stronger protections could be required. For example, it suggested that entities would still be able to register domain names that give the impression of being Australian universities by using global top-level domains (e.g. www.westernaustraliauniversity.com).104

3.84 The department noted the provision would reinstate a policy and approval process that was suspended in 2017 due to changed legal interpretation. It stated that the reinstated policy and process would be consistent with government policy protecting the word 'university' in other legislation regulating company and business names.105

3.85 The department also recognised the importance protecting the term 'university' given the broader use of the term in higher education provider names through the introduction of the ‘University College’ category.106

Amending the Higher Education Support Act 2003 3.86 There was overwhelming support for the proposed change to replace references to 'Indigenous student' with 'Indigenous person', which would confirm that providers can use Indigenous student assistance grants to assist

prospective Indigenous students as well as existing Indigenous students.107

101 Department of Education, Skills and Employment, Submission 20, p. 10.

102 Australian Technology Network of Universities, Submission 15, p. 3.

103 Australian Catholic University, Submission 1, p. 7.

104 Universities Australia, Submission 16, p. 3.

105 Department of Education, Skills and Employment, Submission 20, p. 11.

106 Department of Education, Skills and Employment, Submission 20, p. 12.

107 See, for example, the National Aboriginal and Torres Strait Islander Higher Education

Consortium, Submission 10, [p. 2]; Australian Technology Network of Universities, Submission 15,

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Committee View 3.87 The committee would like to thank all stakeholders for their engagement in this inquiry process. The committee also acknowledges the significant contribution of stakeholders to the HESP’s drafting of the proposed new

provider category standards, as well as the PCS review that informed their development. Further, the committee understands that TEQSA will continue to engage with the higher education sector as it finalises the design and implementation of the proposed research quality provisions.

3.88 The committee notes the broad support for the bill, particularly those aspects that implement the recommendations arising from the 2016–17 impact review and the 2019 PCS review. There is also general support for the remaining provisions of the bill, which strengthen higher education regulation and amend the Higher Education Support Act 2003 to clarify the purposes for which Indigenous student assistance grants may be used.

3.89 The committee is aware of conflicting views in relation to the proposed new University College provider category. On balance, the committee accepts the argument that there are sufficient protections in place to prevent misuse of the term. The committee also notes that a similar category, the Australian University College, has been in existence since 2011.

3.90 Despite mixed views about the level of detail provided in the bill, the introduction of research quality benchmarks is strongly supported by stakeholders. However, the committee notes that the bill does not alter the existing balance of primary and delegated legislation in relation to the Threshold Standards. Given this, the committee endorses the view that the use of delegated legislation will allow the standards to be more responsive as circumstances evolve and change over time. The committee is also further reassured by TEQSA’s evident commitment to consultation—including with the HESP and other experts in the field of research evaluation.

3.91 Based on the evidence presented, the committee believes the risk of providers not meeting the research benchmarks is minimal, although it may be higher for smaller private universities. However, the committee is confident that the five and ten year transition periods will be sufficient to allow universities to adjust to the new requirements. It is also reassured by the department’s assertion that there will be scope for remedial action before any regulatory sanction might become necessary.

3.92 The committee also heard concerns about the interaction of the bill with broader changes to university research funding. While noting these concerns, the committee is mindful that work is already underway, via the Research

p. 3; Australian Catholic University, Submission 1, p. 7; Western Sydney University, Submission 17, p. 3.

33

Sustainability Working Group, to investigate sustainable approaches to university research funding. In the committee’s view, this process should be allowed to run its course.

3.93 In relation to the student records provision, the committee notes the potential privacy implications of proposed section 197AC, which will facilitate the transfer of student records from one entity to another where a student changes providers. While the Statement of Compatibility with Human Rights did not raise concerns about this provision, the government may wish to provide clarification about its operation to allay stakeholder concerns.

3.94 Overall, the committee believes the provisions in the bill will simplify and strengthen the regulatory framework for higher education in Australia. Accordingly, the committee recommends the bill be passed.

Recommendation 1

3.95 The committee recommends the bill be passed.

Senator the Hon James McGrath Chair

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Labor Senators' minority report

1.1 As the bill's name suggests, this instrument is primarily about the setting of standards for universities. It is asserted that the measure's main purpose is raising standards within universities. It is claimed that its methodology is to apply the findings of the review that was undertaken in 2019 by Emeritus Professor Peter Coaldrake. It is further claimed that the process of setting standards is to simplify the processes for universities to follow.

1.2 The bill also proposes to:

 amend the Tertiary Education Quality and Standards Agency (TEQSA) Act to provide for the TEQSA to:

− include undergraduate certificates in its regulatory scope − extend a provider or course registration period, even if it has done so previously − not change a provider's registration category when requested by the

provider − assume control of student records where a registered higher education provider ceases operations − prohibit use of the word 'university' in top-level domain names, unless

approval is provided by the Minister and

 amend the Higher Education Support Act 2003 to ensure that Indigenous student assistance grants cover support for prospective students.

1.3 In his final report, Professor Coaldrake identified the arrangements as:

The key issues raised by this Review, their accompanying

recommendations, and the benefits to stakeholders, fall into three broad themes: fit for purpose, lifting cachet and reputation, and brand protection.1

1.4 The review acknowledged the point raised by the research-intensive universities that any review of the Provider Category Standards (PCS) must be about enhancing excellence, not reducing it:

Any revision to the PCS must be framed around enhanced quality. It is critically important to maintain Australia's excellent international reputation for quality higher education.2

1.5 The government officially accepted this premise in its response to the Coaldrake review:

1 Coaldrake, P. What's in a Name? Review of the Higher Education Provider Category Standards – Final

Report, Commonwealth of Australia, October 2019, p. 52.

2 Group of Eight submission to the PCS Review 2019, p. 3.

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New benchmarks for quantity and quality of research may require some Australian universities to increase research performance and output.3

1.6 Yet upon examination of the evidence arising from this inquiry—in the context of the government's policy history in higher education—the gap between policy intent and delivery remain all too clear.

Maintaining our international reputation 1.7 There appears to be a confusion between the policy of simplification and the objective of enhanced research quality and increased performance. This confusion, given the under-resourcing of the regulator, TEQSA, and the

government's stated objective of encouraging new entrants, may put at risk the international reputation of Australian universities in terms of their standards of teaching, research and civic engagement.

1.8 Labor Senators are concerned that TEQSA, the regulator primarily responsible for defending the integrity of the higher education system, is being asked to undertake this extra work with no extra resources:

Senator KIM CARR: Can you draw my attention to the additional funding you've been provided with to undertake this extra work?

Prof. Saunders: We've not been provided with any additional funding to undertake this work.

Senator KIM CARR: How will it be financed?

Prof. Saunders: That needs to be discussed with government, and it will be discussed with government.4

1.9 Labor Senators call on the government to provide TEQSA with the resources that it needs to undertake the additional tasks associated with this bill.

University Colleges 1.10 Encouraging new private entrants to the higher education system is a long-term policy objective of the government. In that context, the government's response to Professor Coaldrake's recommendation on the issue of 'University

Colleges' is particularly significant.

1.11 Professor Coaldrake recommended that 'Institute of Higher Education' be used:

The TEQSA Act 2011 uses the term 'higher education provider' to encompass both universities and other higher education providers. This is confusing to the public when one provider category is also given the dedicated title of 'Higher Education Provider'. Each provider category

3 Review of the Higher Education Provider Category Standards Australian Government Response,

p. 8.

4 Professor Nicholas Saunders, Chief Commissioner, Tertiary Education Quality and Standards

Agency, Proof Committee Hansard, 4 November 2020, p. 25.

37

should have its own distinctive title. Therefore, this Review recommends the title 'Institute of Higher Education' be adopted for the current 'Higher Education Provider' category. Given that about half of the current providers in that category already use the term 'institute' in their trading titles, 'institute' was deemed a natural distinguishing title above other considered alternatives including 'academy', 'institution', or 'college'.

The category title will not have an impact on existing provider trading names. However, it will allow providers to market themselves as registered by TEQSA as an 'Institute of Higher Education'. As an example, a fictional Canberra College of Design may wish to market itself as 'Canberra College of Design, a registered Institute of Higher Education'.5

1.12 This recommendation distinguishes the institutes from 'University Colleges', which could create confusion in the use of the term 'university'.

1.13 The government's use of the term 'University Colleges', however, potentially allows new entrants to be presented as universities though without the nomenclature of full universities and without the implications of the term 'university' in terms of standards for teaching and research.

1.14 The university sector is very concerned about the change and regards it as the thin end of the wedge to dilute the standards for new entrants.

1.15 Universities Australia told the committee:

As we have said, we would prefer the university college category not be used to describe things that did not conduct both research and teaching.6

1.16 The National Tertiary Education Union put a similar view:

There were three issues in the bill that we have some concerns with. One is the use of the term 'university college' for the new category of high-performing non-university provider. We think a different term should be used rather than the term 'university college'. We have some concerns about the way that the research quality is being specified and what TEQSA needs to do to come up with an instrument to determine research quality.7

1.17 It seems that the government has ignored these concerns as well as the first recommendation of the Coaldrake review:

Coaldrake Review Recommendation 1

There should be a simplification of the current provider categories. Our universities are currently over-categorised, while all other higher education providers are grouped in a single undifferentiated category. The current five university categories should be reduced to two categories and

5 Coaldrake, P. What's in a Name? Review of the Higher Education Provider Category Standards – Final

Report, Commonwealth of Australia, October 2019, p. 22.

6 Ms Catriona Jackson, Chief Executive, Universities Australia, Proof Committee Hansard,

4 November 2020, p. 5.

7 Mr Paul Kniest, Director, Policy and Research, National Tertiary Education Union, Proof Committee

Hansard, 4 November 2020, p. 15.

38

the current single category for other higher education providers (that are not universities) should be increased to two categories.

Current Categories Proposed Revised Categories

Higher Education Provider

Australian University

Australian University College

Australian University of Specialisation

Overseas University

Overseas University of Specialisation

Institute of Higher Education

National Institute of Higher Education

Australian University

Overseas University in Australia

Source: Coaldrake, P. What's in a Name? Review of the Higher Education Provider Category Standards – Final Report, Commonwealth of Australia, October 2019, p. vii.

Recommendation 1

1.18 Labor Senators recommend that any reference to 'University College' should not be included in the regulations and instead replaced with 'Institute of Higher Education' as was the full intention of Recommendation 1 of the Coaldrake review. Furthermore, the provider categories should be listed in the primary legislation.

Threshold Standards 1.19 When combined with the government's efforts to introduce short course, vocational, competency based, teaching programs the conventional understanding of university teaching credentials takes on a new meaning. The

drawing together of University and TAFE are again making it easier for private providers to enter the higher education categorisation.

1.20 The government appears uncertain as to as to what 'new and improved standards' actually mean. There is no recognised methodology of determining research quality. Excellence in Research Australia (ERA) underlies much of Professor Coaldrake's calculations. However, both TEQSA and the Department asserted other metrics might be applied when the provider (i.e. the new entrant) had insufficient quantity of research output to meet the requirements of ERA.

1.21 Following recommendation 4 of the Coaldrake review:

Along with teaching, the undertaking of research is, and should remain, a defining feature of what it means to be a university in Australia; a threshold benchmark of quality and quantity of research should be included in the Higher Education Provider Category Standards.

39

This threshold benchmark for research quality should be augmented over time.8

1.22 That recommendation resulted in these draft criteria being developed by the Higher Education Standards Panel in amending the Higher Education Standards Framework:

The undertaking of research that leads to new knowledge and original creative endeavour and research training are fundamental to the status of a higher education provider as an 'Australian University'. To be registered and remain registered in the 'Australian University' category, the higher education provider:

(14) from 1 January 2030, undertakes research at or above one or both of the benchmark standards described in B1.3 (16) that leads to the creation of new knowledge and original creative endeavour in:

(a) at least three, or at least 50 per cent, of the broad (2-digit) fields of education in which it delivers courses of study, whichever is greater; or (b) all broad (2-digit) fields of education in which it has authority to

self-accredit, in the case of a university with a specialised focus.

TEQSA will use existing national benchmarking exercises where they are available. Where they are not available, TEQSA will benchmark against standard indicators.

For the first ten years after entry to the 'Australian University' category a new entrant:

(15) undertakes research at or above one or both of the benchmark standards described in B1.3 (16) that leads to the creation of new knowledge and original creative endeavour in:

(a) at least three, or at least 30 per cent, of the broad (2-digit) fields of education in which it delivers courses of study, whichever is greater; or (b) all broad (2-digit) fields of education in which it has authority to

self-accredit, in the case of a university with a specialised focus.

Following this period, the provider's research requirements will be assessed against the percentage set out in criterion B1.3 (14).

Where an 'Australian University' provider delivers courses of study in new broad (2 digit) field/s of education, the provider may request that those field/s not be considered in the quantum of fields for the purposes of compliance of this criterion for a period of no more than ten years from the commencement of those course of study offerings.

(16) The benchmark standards for research are:

8 Coaldrake, P. What's in a Name? Review of the Higher Education Provider Category Standards – Final

Report, Commonwealth of Australia, October 2019, p. vii.

40

(a) research that is 'world standard' measured using best practice indicators; and/or (b) research of national standing in fields specific to Australia, in the case of research that is not easily captured by existing standard

indicators.

Standard indicators to be used in assessment may include (but are not limited to) peer-reviewed journal papers, rate of publication, weighted publications, success in competitive grant rounds and other direct funding, citation analysis, impact measures, and existing assessment exercises.9

1.23 These criteria in some assessments will have significant ramifications. The Group of Eight have indicated that if these were adopted then the consequences would be:

An analysis of ERA 2018 results at ERA rating 3 for broad research fields (2-digit Field of Research) by the Go8 indicates that for institutions currently registered in the Australian University category:

 3 institutions are under the 30 per cent level for the PCS standards up until 2030;  A further 2 institutions are under the 50 per cent level for 2030 PCS standards; and  A further 4 institutions may be considered 'at risk' between 50 per cent

and 60 per cent.

These 9 institutions represent a full-time domestic student load of approximately 80,000 or 11% of Australia's domestic university student load.10

1.24 The University of Sydney, in its submission on the related bill (the Higher Education Support Amendment (Job-Ready Graduates and Supporting Regional and Remote Students) Bill 2020) commented:

This will either mean that some current universities will potentially fail to meet the new threshold due to the lack of research capacity (partly as a result of the impact of COVID-19) or reinforce the fundamental structural flaw in research funding outlined above.11

1.25 The department has claimed both that no university would be adversely affected and that some would be affected:

Analysis of 2018 ERA data suggests that all public Australian universities would meet the proposed initial research quality benchmark requiring research at or above world-class standard that leads to the creation of new knowledge and original creative endeavour in at least three, or at least 30 per cent, of the broad fields of education they deliver (all fields for

9 Higher Education Standards Panel, Amending the Higher Education Standards Framework:

Provider Category Standards, 2020, pp. 14–15.

10 Group of Eight, Submission 24, p. 2.

11 University of Sydney submission to the Higher Education Support Amendment (Job-Ready

Graduates and Supporting Regional and Remote Students) Bill 2020 inquiry, p. 4.

41

specialised universities). However, it is arguable that some of Australia's smaller private universities may struggle to meet these standards if assessed on ERA ratings alone. This is partly due to low volume thresholds applied through the ERA assessment process which requires a minimum of 50 research publications in a field of research in order to receive a rating against that field of research.

…

No university has indicated any concern or risk that they would not satisfy the benchmark. This is a testament to the already high quality of research in Australia. If they have a concern, however, both TEQSA and the department are available to discuss options to guide institutions toward improved performance or greater specialisation that would enable them to meet the standards.12

1.26 This indicates to Labor Senators that standards are so low that universities will meet them given the time lag involved and given that the government has not spelt out any additional resources that would be available to achieve this end. It raises that question as to whether the government is confident that the standards are sufficiently rigorous.

1.27 Indeed, it raises the broader question of what is the point of standards if the bar is so low?

Consequences of regulatory failure 1.28 The consequences of failure here are profound, with the history of regulatory failure in Australia scattered with higher education examples.

1.29 Failures of ministerial discretion, delegated powers, assessment of new entrants to the system and misuse of the title 'university' were all issues that arose in the Greenwich University scandal of the early 2000s, which ultimately led to the National Protocols for Higher Education Approvals Processes.

1.30 Greenwich University was an institution established on Norfolk Island, which had a Chancellor who was a convicted embezzler, a Vice-Chancellor who had bought some titles to the Russian throne, and it had been allowed to use the term 'university' because the Minister for Regional Affairs at the time, Senator Macdonald, had directed the Legislative Assembly of Norfolk Island to sign off on it.

1.31 Greenwich University established its own degrees. It had teaching staff and accredited their own PhDs to provide them with necessary qualifications.

1.32 This is just one of several examples Australia has seen over the past 20 years and this bill does not do enough to prevent a recurrence of such events.

12 Department of Education, Skills and Employment, Submission 20, p. 8.

42

Parliamentary oversight 1.33 Parliamentary scrutiny is an important part of legislative and regulatory oversight in Australia, but unfortunately this bill seeks to limit that scrutiny.

1.34 Parliamentary oversight is a matter of deep concern for Labor Senators especially given the history of regulatory failure in this sector.

1.35 The Senate Standing Committee for the Scrutiny of Bills has made very pertinent remarks on this matter. Primarily, that consultation should occur prior to the bill being presented and the key threshold standards should have been identified in the primary legislation.

1.36 In his correspondence with the Scrutiny of Bills Committee, the Minister notes that the Threshold Standards were created by Commonwealth and state/territory higher education ministers in 2000, with revisions and edits in 2007, 2013 and 2015. Labor Senators note that these are matters that undergo constant monitoring, review and updating, and, given this, are at a loss as to why the government is choosing to reinvent in the wheel and withhold detail from the primary legislation.

1.37 The government's assertion that to do otherwise would be an impediment and would create 'barriers to innovation' is not persuasive, especially given that the Minister has provided no examples of what he means by this.

1.38 Labor Senators agree with the Scrutiny of Bills Committee that, from a scrutiny perspective, there are concerns that significant matters, such as the standards making up the Higher Education Standards Framework, and matters relating to how the quality of research undertaken by higher education providers will be assessed, should be included on the face of primary legislation.

1.39 Incorporating the standards into the primary legislation would not prevent changes being made to the standards, while at the same time such an approach would provide a higher level of parliamentary oversight and control as compared with delegated legislation.

1.40 The Minister's advice to the Scrutiny of Bills Committee that a long period of consultation has been undertaken in relation to reviews of the standards shows the significant nature of the standards and their impact on the sector, thus making them more appropriate for the full scope of parliamentary scrutiny via their inclusion in primary legislation.

1.41 Labor Senators also agree with the Scrutiny of Bills Committee that it is unclear why the same level of consultation could not be undertaken prior to introducing primary legislation to amend the standards into the Parliament. In this regard, it would be possible to include a requirement for regular review of the standards on the face of the primary legislation.

1.42 As it currently stands the safeguards that ensure standards are adequate and sector specific are not provided in this bill.

43

Recommendation 2

1.43 That the government accept the recommendation of the Scrutiny of Bills Committee, that an addendum to the explanatory memorandum containing the key information provided by the minister be tabled in the Parliament as soon as practicable, noting the importance of these explanatory materials as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

Conclusion 1.44 Much of this bill concentrates on research standards. ERA remains the best means of judging performance against standards. It is the responsibility of the Australian Research Council to ensure that ERA is not diminished by gaming

or rorting. It is the ARC's responsibility to ensure that ERA remains fit for purpose; that should be the focus of the current ARC review into ERA.

1.45 Given the limited research funding that is available, it is important that the national interest is pursued by ensuring excellence of research effort in the development of key national priorities and industries. While the government has promised short-term relief to the crisis in the form of its $1 billion research fund for 2020–21, the long-term funding crisis for Australian research remains.

1.46 The government's decision to remove research funding from allocations to Commonwealth Supported Places has made this issue more acute. Spreading limited research funding too thinly will only endanger Australia's international reputation. Drawing research excellence at scale is the best defence of national capabilities. The lowering of standards will equally undermine our ability to develop research excellence and attract international students, and it will weaken international research collaborations. New entrants cannot be allowed to dilute the quality or reputation of the Australian higher education system.

1.47 From a national interest perspective, the application of the Provider Category Standards is not an abstract or an obscure policy matter. We do not want to see a repeat of policy disasters like Greenwich and the international student policy farce of the past.

1.48 Building a university system of the highest quality and integrity requires persistent and determined regulatory effort. Parliamentary scrutiny should be a matter of the highest priority to maintenance of excellence in our university system.

Senator Louise Pratt Senator the Hon Kim Carr

Deputy Chair Participating Member

45

Australian Greens Senators' additional comments

1.1 The Australian Greens welcome the opportunity to contribute additional comments to the committee report, and thank the witnesses and authors of submissions for their time and expertise.

1.2 While the Greens do not oppose the primary legislation itself, we are concerned by the lack of clarity in the bill about factors the Tertiary Education Quality and Standards Agency (TEQSA) must consider when determining research quality, and by the extent of the powers delegated to the Minister and TEQSA. We oppose the government's stated intention to use the category title 'University College' for high-performing non-university higher education institutions in the forthcoming instrument.

1.3 The Greens value high quality research. It is fair and appropriate to expect high standards of our universities and the research they produce. We believe that the conduct of high-quality research is fundamental to universities, and welcome the Review of the Higher Education Provider Category Standards' (PCS Review) recommendation that '[a]long with teaching, the undertaking of research is, and should remain, a defining feature of what it means to be a university in Australia'.1 We welcome the government's acceptance of this recommendation.

Delegated legislation 1.4 The Greens do not share the committee's view that the extent of delegation of decision-making power in the enabling legislation is proportionate or appropriate, and agree with stakeholders who have expressed concern about

this.

1.5 While we acknowledge and appreciate commitments from the Department of Education, Skills and Employment and TEQSA to consult with key stakeholders in the development of the regulations, we would echo the comments of the Queensland University of Technology in their submission that:

…it is surely the Senate's prerogative to consider all sides of a complex argument and exercise its legislative authority, when a significant change is on the table that has the very real potential to be materially consequential to the management and perception of the Australian tertiary sector as a whole.2

1 Coaldrake, P. What’s in a Name? Review of the Higher Education Provider Category Standards – Final

Report, Commonwealth of Australia, October 2019, p. vii.

2 Queensland University of Technology, Submission 5, p. 3.

46

1.6 At the very least, the primary legislation should set clear guidelines for the establishment of Threshold Standards in the regulation to ensure appropriate parliamentary oversight and legislative boundaries.

Threshold benchmarks for the quality of research 1.7 The Greens share concerns expressed by the National Tertiary Education Union (NTEU) with respect to the lack of clarity in the primary legislation about how threshold benchmarks of research quality will be developed by

TEQSA.3

1.8 We acknowledge TEQSA's assurances 4 that metrics other than Excellence in Research Australia (ERA) outcomes will be used to determine quality. This commitment should be included in the primary legislation rather than left to the discretion of the Minister and government agencies.

Recommendation 1

1.9 The bill should be amended to ensure that, in developing the instrument determining the quality of research, Tertiary Education Quality and Standards Agency must:

 take into account a variety of qualitative and quantitative factors;  specify the factors taken into account for different discipline areas; and  specify the benchmarks, including weightings, given to different factors.

University Colleges 1.10 As the Committee report identifies, many submissions and witnesses were opposed to the government's proposed use of the category title 'University College' for high-performing, non-university higher education providers.

1.11 The Greens share the widely-held concerns that using the term 'University College' risks inaccurately redefining what it is to be a university. It is inconsistent to hold that the conduct of research, or a certain quality and quantity of research, are fundamental features of a university, and yet to also enable providers which are not research-active to brand themselves with the word 'university'.

1.12 We note that Recommendation 9 of the Provider Category Standards (PCS) Review begins with the statement 'The essential purpose of regulating the nomenclature of institutions via the higher education provider category standards is consumer protection'.5 It is our view that it is entirely foreseeable

3 National Tertiary Education Union, Submission 4, p. 5.

4 Proof Committee Hansard, 4 November 2020, p. 23.

5 Coaldrake, P. What’s in a Name? Review of the Higher Education Provider Category Standards – Final

Report, Commonwealth of Australia, October 2019, p. viii.

47

that a 'University College' category could cause confusion among prospective students about the standing of a given institution.

1.13 The government has not provided sufficient policy rationale for discarding the clear recommendation of the PCS Review to title the category 'National Institute of Higher Education'.6

1.14 The Greens do not consider the prior existence of an Australian University College category to be a persuasive reason to allow institutions which do not conduct research to refer to themselves using any variation of the word 'university'. Likewise, we do not consider the desire of non-university higher education providers to brand themselves as 'University Colleges' a particularly compelling reason to risk confusion among students and the public and a decline in the perception of university quality.

Recommendation 2

1.15 In drafting the instrument, the government should implement the recommendation of the Provider Category Standards Review to title the non-university category of high-performing higher education institutions as 'National Institute of Higher Education'.

1.16 The Greens also note the NTEU's advice that the committee be wary of the potential impact of the increasing focus on short courses and microcredentials on the higher education landscape. The Greens agree that vigilance is required to put an end to the creeping privatisation and deregulation of the university sector.

1.17 The Morrison government's cuts to university funding will reverberate through the university sector for years. This is a sector already reeling from the effects of the coronavirus pandemic and decades of austerity. The paltry amount of 'new funding' for research in the 2020–21 budget will not go anywhere near covering the funding shortfall caused by the COVID-19 pandemic and years of funding cuts.

6 Coaldrake, P. What’s in a Name? Review of the Higher Education Provider Category Standards – Final

Report, Commonwealth of Australia, October 2019, p. vii.

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1.18 To guarantee the future of high quality research in Australia it is essential that our public universities are well-resourced by the government, that all university staff enjoy secure work and good conditions, and that social, economic and institutional barriers to diversity and inclusion in university education and the field of academia itself are knocked down. Our public universities must be fee-free, well-funded, democratic places of excellence in teaching and research.

Senator Mehreen Faruqi Member

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Appendix 1

Submissions and Additional Information

Submissions 1 Australian Catholic University 2 University of New England 3 Regional Universities Network 4 National Tertiary Education Union (NTEU) 5 Queensland University of Technology (QUT) 6 Edith Cowan University 7 Bond University 8 Australian Research Council 9 University of Western Australia 10 National Aboriginal and Torres Strait Islander Higher Education Consortium

(NATSIHEC) 11 Independent Tertiary Education Council Australia (ITECA) 12 University of Southern Queensland (USQ) 13 Innovative Research Universities 14 Charles Sturt University 15 Australian Technology Network of Universities (ATN) 16 Universities Australia 17 Western Sydney University 18 The University of Melbourne 19 The Australian Academy of Technology and Engineering (ATSE) 20 Department of Education, Skills and Employment 21 Independent Higher Education Australia (IHEA) 22 Monash University 23 University of Canberra 24 Group of Eight (Go8) 25 Swinburne University of Technology 26 University of Newcastle

Answer to Question on Notice 1 Universities Australia, answer to written question on notice from Senator Faruqi, 4 November 2020 (received 11 November 2020) 2 Department of Education, Skills and Employment, answer to question on

notice from Senator Carr, 4 November 2020 (received 17 November 2020) 3 Department of Education, Skills and Employment, answer to question on notice from Senator Faruqi, 4 November 2020 (received 17 November 2020)

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Appendix 2 Public Hearings

Wednesday, 4 November 2020 Committee Room 2S3 Parliament House Canberra

Universities Australia  Ms Catriona Jackson, Chief Executive  Mr Mike Teece, Policy Director, Academic

Western Sydney University  Professor Simon Barrie, Deputy Vice-Chancellor and Vice-President, Academic

Regional Universities Network  Dr Caroline Perkins, Executive Director  Professor Helen Bartlett, Chair

Federation University  Professor Duncan Bentley, Vice-Chancellor and President

National Tertiary Education Union  Mr Paul Kniest, Director Policy and Research

National Aboriginal and Torres Strait Islander Higher Education Consortium (NATSIHEC)  Dr Leanne Holt, Chair  Professor Steve Larkin, Chief Executive Officer

Tertiary Education Quality and Standards Agency  Professor Nick Saunders, Chief Commissioner  Professor Peter Coaldrake, Commissioner

Department of Education, Skills and Employment  Mr Stephen Erskine, Acting Assistant Secretary, Governance, Quality and Access Branch  Mr Dom English, First Assistant Secretary, Higher Education Division