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2013-2014
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
TERTIARY EDUCATION QUALITY AND STANDARDS AGENCY
AMENDMENT BILL 2014
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Education, the Hon Christopher Pyne MP)
TERTIARY EDUCATION QUALITY AND STANDARDS
AGENCY AMENDMENT BILL 2014
OUTLINE
The purpose of the Tertiary Education Quality and Standards Agency Amendment
Bill 2014 (the Bill) is to amend the Tertiary Education Quality and Standards Agency
Act 2011 (TEQSA Act) to give effect to the Governments decision to implement
recommendations arising from the independent Review of Higher Education
Regulation (the Review).
The measures in the Bill will increase the efficiency of the Tertiary Education Quality
and Standards Agency (TEQSA) and reduce the regulatory burden on higher
education institutions. The Bill will support TEQSA to focus on its core functions and
the development of more efficient processes around these functions.
Specifically, the amendments to the TEQSA Act will refine the agencys functions to
allow TEQSA to focus on its core activities of provider registration and course
accreditation. To improve TEQSAs ability to manage the registration and
accreditation processes, the measures will also enable TEQSA to extend the period of
registration or accreditation on its own initiative.
The amendments will enhance TEQSAs delegation powers to enable it to implement
more efficient decision making processes and provide applicants with access to
internal review of decisions, rather than commencing proceedings in the
Administrative Appeals Tribunal.
The measures will improve the Ministers ability to give a general direction to
TEQSA in relation to the performance of its functions and the exercise of its powers
and allow for a specific direction to be made in regard to the fees that TEQSA charges
for its services. In addition, TEQSA must seek the Ministers approval before making
changes to the fees it charges higher education institutions. As the Act currently
stands, the Minister has no oversight on the fees that may be charged, and this
amendment will bring the Act more in line with other regulatory agencies.
In line with TEQSAs refined functions and increased efficiency, the amendments
provide the Minister with greater flexibility in determining the most appropriate
organisational arrangements for TEQSA by removing the requirements to appoint a
specific number of Commissioners, to appoint full-time and part-time Commissioners
and will separate the roles and responsibilities of the Chief Commissioner and Chief
Executive Officer. The Bill also provides that all Commissioners will cease to hold
office under the TEQSA Act at a fixed time. Transitional arrangements will be put
into place to ensure that this would not occur until 21 days after the Bill receives
Royal Assent for the Chief Commissioner and three months after Royal Assent for
other Commissioners. During the transitional period, a selection process will be
conducted and the positions filled in line with the amended TEQSA Act. All current
Commissioners (including the Chief Commissioner) may reapply for the available
positions.
The amendments provide for a number of technical amendments, suggested by
TEQSA, to improve the efficiency of notification requirements.
The amendments impact directly on the functioning of TEQSA; they do not alter the
substance of the TEQSA Act or increase departmental funds.
FINANCIAL IMPACT STATEMENT
The expected financial impact of amendments in the Bill will be nil to positive
depending on the operational impact of the amendments.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011
TERTIARY EDUCATION QUALITY AND STANDARDS AGENCY
AMENDMENT BILL 2014
This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of the Bill
The purpose of the Bill is to amend the Tertiary Education Quality and Standards
Agency Act 2011 (TEQSA Act) to give effect to the Governments decision to
implement recommendations arising from the independent Review of Higher
Education Regulation (the Review). The previous Government commissioned the
Review in May 2013 in response to concerns raised by higher education providers
about the level of regulatory burden they face. The Review made eleven
recommendations to reduce red tape. On 23 October 2013, the Government
committed to implement the eleven recommendations commencing with the
Ministerial Direction given to the Chief Executive Officer (CEO) of the Tertiary
Education Quality and Standards Agency (TEQSA). That Direction requires the CEO
to improve the focus and timeliness of TEQSAs regulatory activities and to advance
appropriate deregulation for the sector. The TEQSA Amendment Bill is an important
part of a wider action plan to implement the recommendations of the Review.
The measures in the Bill will increase the efficiency of TEQSA and reduce the
regulatory burden on higher education institutions.
The Bill includes measures to enable TEQSA to focus on its core functions of
provider registration and course accreditation and the development of more efficient
processes around these functions. As such, the current quality assessment function of
TEQSA will be removed (following the Reviews finding that providers already have
robust internal processes to ensure quality). TEQSAs ability to delegate its functions
and powers to appropriate TEQSA staff will be enhanced, enabling the Agency to
implement more efficient decision making processes. Further, this will provide
applicants with access to internal review of decisions. Where decisions have been
made at the highest levels within TEQSA, applicants cannot access internal review
mechanisms, so if they wish to appeal a decision they must commence proceedings in
the Administrative Appeals Tribunal. The Bill also amends the TEQSA Act to give
TEQSA the power to extend the period of a higher education providers registration
or accreditation.
In line with TEQSAs refined functions and increased efficiency, the measures in the
Bill will provide the Minister with greater flexibility to determine the number of
Commissioners to be appointed. It will remove the requirement to appoint a specific
number of part-time and full-time Commissioners and will separate the roles and
responsibilities of the Chief Commissioner and the Chief Executive Officer (CEO).
The amendments provide that the appointment of Commissioners will cease at a fixed
time. Transitional arrangements will be put in place to ensure that this would not
occur until 21 days after the Bill receives Royal Assent for the Chief Commissioner,
and 3 months after Royal Assent for other Commissioners. Commissioners will be
appointed under the amended Act, and the amendments do not prevent the current
Chief Commissioner or other Commissioners from applying for these positions.
The Bill also amends the scope of the directions that the Minister may give to TEQSA
such that the Minister would be able to give directions in relation to the performance
of TEQSAs functions and the exercise of its powers. However the directions must be
of a general nature only. In addition, Part 8 of the Bill would amend the TEQSA Act
to provide that TEQSA must not make a legislative instrument determining the fees
that it charges unless the Minister has given written approval.
The Bill makes other minor and technical amendments to the TEQSA Act to increase
the efficiency of TEQSA. These amendments do not alter the substance of the
TEQSA Act or increase departmental funds.
Human Rights Implications
Right to work and rights at work
The Bill engages the right to work and rights at work contained in articles 6(1) and 7
of the International Covenant on Economic, Social and Culture Rights. Article 6(1)
recognises that the right to work, which includes the right of everyone to the
opportunity to gain his living by work which he freely chooses or accepts, and that
states will take appropriate steps to safeguard this right. Article 7 recognises the right
of everyone to the enjoyment of just and favourable conditions of work.
The Bill gives effect to the Governments decision to implement recommendations
from the Review. In line with the Reviews recommendations, the Bill refines
TEQSAs functions to enable the agency to focus on its core functions and the
development of more efficient processes around these functions. In recognition of
TEQSAs refined functions and increased efficiency, the Bill provides the Minister
with the flexibility to appoint fewer TEQSA Commissioners (Schedule 1, Part 4).
The Bill also provides that all Commissioners will cease to hold office under the
TEQSA Act at a fixed time. Transitional arrangements will ensure that the Chief
Commissioners will not cease to hold office until 21 days after the Bill receives Royal
Assent, and 3 months after Royal Assent for other Commissioners. During the
transitional period, a selection process will be conducted and the positions filled in
line with the amended TEQSA Act. All current Commissioners may reapply for the
available positions.
To the extent that the measure to terminate the appointment of Commissioners and the
Chief Commissioner places a limitation on those persons right to work and rights at
work, that limitation is justifiable. The amendment seeks to achieve greater flexibility
in determining the organisational structure of TEQSA and enabling greater
efficiencies, supporting the Governments commitment to reduce regulation and
enable higher education providers to focus less on compliance activities and more on
their core work of delivering high quality teaching and research, to the benefit of the
community and the economy. Because the amendments will result in changed roles
for the Chief Commissioner and Commissioners, their appointments under the current
Act will be terminated. All current Commissioners have the ability to reapply for
positions in line with the amended Act. If they are not reappointed, they will be
offered suitable alternative employment or financial compensation, consistent with the
Remuneration Tribunals determination. The limitation applies to a small number of
people, balanced against the broader benefits to the community and society to be
achieved by improved quality assurance arrangements in higher education.
To the extent that the right to work and rights at work are limited, the limitation is
justifiable, reasonable and proportionate. This Bill is compatible with the right to
work.
Right to Education
The Bill also engages the right to education which is set out in Article 13 of the
International Covenant on Economic, Social and Cultural Rights. The right to
education recognises the important personal, societal, economic and intellectual
benefits of education. It requires education be available, safe, and appropriately
resourced, dependent on the needs of the child.
The Bill gives effect to the Governments decision to implement recommendations
from the August 2013 independent Review of Higher Education Regulation (the
Review). In line with the Reviews recommendations, the Bill refines TEQSAs
functions to enable the agency to focus on its core functions and the development of
more efficient processes around these functions. The highest standards of quality will
continue to be upheld. The amendments will provide for more efficient and targeted
activity by TEQSA which will ensure that higher education institutions have more
time and resources to devote to doing what they do best - delivering the highest
quality teaching, learning and research. This will benefit Australian and international
students as well as the broader Australian community and economy.
This Bill is compatible with the right to education.
Conclusion
This Bill is compatible with human rights.
TERTIARY EDUCATION QUALITY AND STANDARDS
AGENCY AMENDMENT BILL 2014
NOTES ON CLAUSES
Clause 1 - Short title
This clause provides that the name of the Act, when enacted, is the Tertiary Education
Quality and Standards Agency Amendment Act 2014.
Clause 2 - Commencement
This clause provides that each provision of this Act which is listed in column 1 of the
table in this clause will commence or be taken to have commenced in accordance with
column 2 of the table.
Clause 3 - Schedule(s)
This clause provides that each Act specified in a Schedule to the Act is amended or
repealed as set out in the applicable items in the Schedule concerned, and that any
other item in a Schedule to the Act has effect according to its terms.
For ease of description, this Explanatory Memorandum uses the following
abbreviations:
,,ESOS Act means the Education Services for Overseas Students Act 2000
,,NVETR Act means the National Vocational Education and Training Regulator Act
2011
,,TEQSA Act means the Tertiary Education Quality and Standards Agency Act 2011
,,TEQSA means the Tertiary Education Quality and Standards Agency
,,The Review means the 2013 Review of Higher Education Regulation conducted by
Professor Kwong Lee Dow AO and Professor Valerie Braithwaite
Schedule 1 - Amendments
Part 1 Quality assessments
Summary
TEQSA has a range of functions and powers as set out in section 134 of the TEQSA
Act, including conducting quality assessments of higher education providers in order
to investigate whether the TEQSA Act or its associated provisions have been, or are
being, complied with (subparagraph 134(1)(c)(i)). In addition, section 60 of the
TEQSA Act enables TEQSA to conduct quality assessments (including thematic
assessments).
The Review presented strong evidence to support the removal of TEQSAs quality
assessment function. It found that most higher education providers already have
robust internal processes, as required by the existing standards, to assure quality. As
such, it would be more effective to allow providers to manage their own quality
assurance and for TEQSA to focus on the timely delivery of its core regulatory
activities of registering providers and accrediting courses.
Part 1 amends the TEQSA Act to remove the quality assessment function, thereby
supporting TEQSA to focus on the core regulatory activities of registering providers
and accrediting courses.
Detailed explanation
Item 1
Item 1 will remove the definition of quality assessment from the definitions in section
5 of the TEQSA Act.
Item 2
Item 2 will repeal section 60 of the TEQSA Act, which enables TEQSA to carry out
quality assessments (including thematic assessments).
Items 3 and 4
Items 3 and 4 will make consequential amendments to subsections 62(1) and (4) of
the TEQSA Act to remove references to section 60, which is to be repealed.
Item 5
Subparagraph 134(1)(c)(i) of the TEQSA Act provides that TEQSA has the function
of investigating whether the Act or its associated provisions have been, or are being,
complied with by conducting compliance assessments and quality assessments.
Item 5 will amend subparagraph 134(1)(c)(i) to remove reference to quality
assessments.
Part 2 Delegations
Summary
Subsection 199(1) of the TEQSA Act provides that TEQSA may delegate any or all of
its functions and powers to a Commissioner, or an Executive Level 1 or higher (or
equivalent classification) TEQSA staff member, or a Commonwealth authority, or a
person holding an office or appointment under a Commonwealth law.
Subsection 199(2) provides that the delegation power under subsection 199(1) does
not apply to certain decision making powers, including powers concerning: initial
registration applications; renewal of registration applications; conditions on
registration; applications for self-accrediting authority; changes of provider category;
the production of information; referring potential offences to the Director of Public
Prosecutions; and applying for a civil penalty order.
Despite subsection 199(2), section 200 provides that the following powers are
delegable to a single commissioner: decisions on initial accreditation; decisions to
impose, vary or revoke a condition imposed on an accreditation; and decisions on an
application for renewal of accreditation.
Since commencing its regulatory functions in January 2012, TEQSA has developed a
significant backlog in provider re-registration applications and course accreditation
and re-accreditation applications. This backlog has been caused, in part, through
TEQSAs inability to delegate decision making responsibilities to appropriate TEQSA
staff.
The TEQSA Act requires TEQSA to establish and maintain a national register of
higher education providers, which is publicly available. The national register is the
authoritative source of information on the status of registered higher education
providers in Australia. Providers being assessed for re-registration are listed as
,,registration pending on the national register. The timely delivery of provider re-
registration applications is crucial to give assurance to students who are considering
enrolling or are currently enrolled with providers that are ,,pending registration.
TEQSA also has a significant backlog of new course accreditation and renewal of
course accreditation applications. To ensure Australias higher education sector
remains competitive in a dynamic, global environment it is vital that providers can
develop and offer courses in a timely fashion. Unnecessary delays in course
accreditation applications may impact on the sectors competitiveness and may
discourage innovation.
The restriction on the delegation of a number of powers has contributed to delays in
finalising provider applications. Where decisions have been made at the highest levels
within TEQSA, applicants are prevented from accessing TEQSAs internal review
mechanisms. As a result, applicants seeking to appeal a TEQSA decision must request
review through the Administrative Appeals Tribunal. The amendments to be made by
Part 2 of Schedule 1 would allow decisions to be delegated to a single Commissioner.
This would enable swifter decision-making and provide applicants with greatly
improved access to internal review of TEQSAs reviewable decisions.
Detailed explanation
Item 6, 7, 8, 9, 10 and 11
Items 6 repeals and substitutes a new heading for subsection 199 of the TEQSA Act.
(Delegation by TEQSA, instead of Delegation-general).
Item 7 will repeal and substitute subsection 199(2) of the TEQSA Act. Subsection
199(1) of the TEQSA Act is a delegation provision which sets out the persons to
whom TEQSA may, by writing, delegate any or all of TEQSAs functions and
powers. New subsection 199(2) will provide that subsection 199(1) will not apply to a
power to make, vary or revoke a legislative instrument.
Item 8 will repeal section 200 of the TEQSA Act, which provides that certain powers
of TEQSA relating to decisions on initial accreditation, renewal of accreditation and
imposing conditions on accreditation are only delegable to Commissioners.
The changes to the delegation provisions will enable TEQSA to more efficiently
delegate functions and powers and is expected to speed up TEQSAs decision-making
processes for the benefit of providers.
Items 9 and 10 make consequential amendments to section 201 and the note to
subsection 202(1) to remove reference to section 200, which is to be repealed.
Item 11
Item 11 is a transitional provision, the effect of which is to deem that any delegations
to a Commissioner that were in force immediately before the commencement of Item
11 (ie the day the Act receives the Royal Assent) under section 200 of the TEQSA
Act, are to be taken as delegations made under new subsection 199(1) after the
commencement of Item 11 (ie the day after the Act receives the Royal Assent).
Item 12
Item 12 is also a transitional provision, the effect of which is to deem that any
direction to a delegate (where the delegate is a Commissioner), in force under section
201 of the TEQSA Act immediately before the commencement of Item 12 (ie the day
the Act receives the Royal Assent) which relates to a delegation under section 200 of
the TEQSA Act will have the effect, following commencement of this Item (ie the
day after the Act receives the Royal Assent) as if the delegation related to a delegation
under new subsection 199(1).
Part 3 Period of registration or accreditation
Summary
Often a providers registration may expire earlier or later than a course accreditation
expires. The TEQSA Act currently does not contain any provisions allowing TEQSA
to extend an existing registration or accreditation on its own initiative.
Part 3 would amend the TEQSA Act to give TEQSA the power to extend the period
of registration or accreditation, thus enabling TEQSA to manage the registration and
accreditation processes more flexibly.
Detailed explanation
Item 13
Item 13 will insert a note at the end of subsection 21(6) to indicate that the period of
registration granted in accordance with subsection 21(6) may be extended in line with
new section 37A (extension of registration period).
Items 14, 15, 16 and 17
Item 17 will insert a Division 3A into Part 3 of the TEQSA Act, comprising new
section 37A. This new section will enable TEQSA to extend a registered higher
education providers registration and provides that the extended period of registration
may exceed 7 years subject to other requirements under the TEQSA Act being met.
Paragraph 23(1)(b) provides that an applicants registration ends at the end of a period
specified in notices given under either section 22 or 37. Subsection 23(2) provides
that paragraph 23(1)(b) has effect subject to a number of other provisions concerning
the renewal of registration, withdrawing registration, cancelling registration and
administrative sanctions. Item 14 makes consequential amendments to subsection
23(2) to include reference to new section 37A.
Subsection 36(4) provides that in deciding whether to grant an application for a
registered higher education provider to have its registration renewed, TEQSA must
determine the period for which the providers registration is renewed and that period
must not exceed 7 years. Items 15 and 16 make consequential amendments to the
note to this subsection to indicate that the period of registration may be extended in
accordance with new section 37A.
Items 18, 19 and 20
Item 20 will insert a Division 5 into Part 4 of the TEQSA Act, comprising of a new
section 57A. This new section will enable TEQSA to extend the period of
accreditation of a course, which period may exceed 7 years, subject to conditions set
out in the TEQSA Act.
Paragraph 51(1)(b) provides that the accreditation of a course of study ends at the end
of a period specified in notices given under either section 50 or 57. Subsection 51(2)
provides that paragraph 51(1)(b) has effect subject to the provider continuing to be
registered and accredited. Item 19 makes a consequential amendment to paragraph
51(2)(b) to also include reference to new section 57A.
Item 18 makes consequential amendments to subsection 49(6) of the TEQSA Act.
Subsection 49(6) concerns the period for which TEQSA may accredit a course of
study in relation to a higher education provider. Item 18 will insert a note after this
subsection to indicate that the period of accreditation may be extended in accordance
with new section 57A.
Items 21 and 22
Items 21 and 22 amend the table of reviewable decisions set out in section 183 of the
TEQSA Act. Section 183 is amended so that decisions made under section 37A to
extend (or not extend) the period of a registered higher education providers
registration and a decision under section 57A to extend (or not extend) the period of
the accreditation of course of study, will be reviewable decisions for the purposes of
the TEQSA Act.
Part 4 Commissioners
Summary
In accordance with recommendations made by the Review, Part 4 would amend the
TEQSA Act to provide the Minister with the flexibility to reduce the number of
TEQSAs Commissioners. Part 4 would also remove the requirement to appoint a
specific number of part-time and full-time Commissioners. This would provide the
Minister greater flexibility in determining the constitution of TEQSA.
Detailed explanation
Items 25, 26 and 27
Item 25 will amend paragraph 133(b) so that TEQSA consists of a Chief
Commissioner and at least one, but not more than 4, other Commissioners. Currently
the constitution of TEQSA is a Chief Commissioner and 4 other Commissioners.
Items 26 and 27 will make consequential amendments to the notes following section
133 by repealing Note 2 (which provides that the Chief Commissioner and 2 out of 4
of the other Commissioners are full-time, with the others being part-time) and
deleting the numbering for Note 1.
Items 23, 24, 28 and 29
The effect of the amendment to be made by Item 28 will be to amend section 138 of
the TEQSA Act to provide that each Commissioner (including the Chief
Commissioner) is to be appointed by the Minister by written instrument and may hold
office on either a full-time, or a part-time basis. Item 29 removes the reference to "the
Chief Commissioner, or as a Commissioner" and substitutes this with "a
Commissioner", noting that the definition of "Commissioner" includes the "Chief
Commissioner". Item 23 will make a consequential amendment to the definition of
full-time Commissioner in section 5 to remove the reference to the Chief
Commissioner being a full-time appointment. Item 24 makes a further consequential
amendment to the definition of part-time Commissioner.
Items 30 and 31
Item 31 will insert a new subsection 141(4) to provide that, if the Chief
Commissioner is appointed on a part-time basis, the Minister may approve leave for
the Chief Commissioner on such terms and conditions that the Minister determines.
Such a determination would not be a legislative instrument by virtue of Item 11 of
Part 1 of Schedule 1 of the Legislative Instruments Regulations 2004.
Item 30 amends subsection 141(3) by inserting the words "other than the Chief
Commissioner" after the words "part time Commissioner". This is to ensure that the
new subsection 141(4) (and not subsection 141(3)) would be the only provision that
would apply to granting leave of absence for a part-time Commissioner who is a Chief
Commissioner.
Item 32 and 33
Many Commonwealth Acts contain provisions that provide for termination of
appointment for office-holders on grounds relating to physical or mental incapacity.
Many of these provisions use the form "The [appointer] may terminate the
appointment of [the office-holder] for physical or mental incapacity" as is the case in
section 146. Current Commonwealth drafting practice in relation to termination of
appointment for office-holders on grounds relating to physical or mental incapacity is
to use the form, "The [appointer] may terminate the appointment of [the office-
holder] if [the office-holder] is unable to perform the duties of his or her office
because of physical or mental incapacity". Item 32 will update section 146 of the
TEQSA Act to accord with current Commonwealth drafting practice. The grounds of
misbehaviour will be included in a separate paragraph.
Many Commonwealth Acts contain provisions that provide for termination of
appointment for office-holders on grounds relating to bankruptcy. Many of these
provisions refer to a person applying to take the benefit of any law for the relief of
bankrupt or insolvent debtors, compounding with his or her creditors or making an
assignment of his or her remuneration for the benefit of his or her creditors. To accord
with the modern law of bankruptcy, current Commonwealth drafting practice is to use
the form: a person taking steps to take the benefit of any law for the relief of bankrupt
or insolvent debtors, compounding with one or more of his or her creditors or making
an assignment of his or her remuneration for the benefit of one or more of his or her
creditors. Item 33 will update section 146 of the TEQSA Act to accord with current
Commonwealth drafting practice.
Item 34
Subsection 149(2) provides that, if the Chief Commissioner is not present at a TEQSA
meeting of Commissioners, a full-time Commissioner nominated by the Chief
Commissioner and present at the meeting is to preside. Item 34 will amend subsection
149(2) to remove reference to the Commissioner to be nominated needing to be full-
time.
Item 35
Subsection 149(3) provides that the required quorum for a meeting of TEQSA is 3
Commissioners. Item 35 will reduce this number to 2 Commissioners.
Item 36
Item 36 is a transitional provision which applies to persons holding office as a
Commissioner, other than the Chief Commissioner, immediately before
commencement of this item. It provides that the persons appointment as a
Commissioner is terminated upon commencement of this item (ie: the day after the
end of the period of 3 months beginning on the day this Act receives the Royal
Assent) and expressly provides that the termination does not prevent the person from
being reappointed as a Commissioner.
Please note Item 45 of the Bill contains a transitional provision relating to the
termination of the Chief Commissioners appointment.
Part 5 Chief Executive Officer etc.
Summary
Currently, subsection 153(2) of the TEQSA Act provides that the Chief
Commissioner of TEQSA is also its Chief Executive Officer. The primary effect of
the amendments contained in Part 5 would be to amend the TEQSA Act to provide for
a separation of these two roles, which would allow the Chief Executive Officer to
focus on management and administration and the Chief Commissioner to focus on
delivering timely regulatory decisions. The amendments contained in Part 5 also
provide for transitional arrangements for a person holding office as the Chief
Commissioner immediately before the commencement of this part.
Detailed explanation
Item 38
Part 5 will have the effect of separating Division 4 of Part 8 of the TEQSA Act into
subdivisions. Subdivision A (Office and functions of the Chief Executive Officer) will
be comprised of sections 153 and 154. Item 38 inserts the heading for Subdivision A.
Items 37, 39 and 40
Subsection 153(2) of the TEQSA Act provides that the Chief Commissioner of
TEQSA is also its Chief Executive Officer. Item 40 will repeal subsection 153(2) to
reflect that these two roles will be separated. Item 39 is a consequential amendment
to renumber section 153 following the amendment made by Item 40.
Item 37 is a consequential amendment following the amendment made by Item 40.
Item 37 will remove the note to subsection 145(2) of the TEQSA Act which refers to
the Chief Commissioner also being the Chief Executive Officer.
Item 41
Item 41 will insert new Subdivisions B, C, and D into Division 4 of Part 8 of the
TEQSA Act. It will also insert a heading for Subdivision E, which will be comprised
of section 155.
Subdivision B--Appointment of the Chief Executive Officer
Section 154A - Appointment of the Chief Executive Officer
New section 154A will provide for the appointment of the Chief Executive Officer of
TEQSA. The Minister will appoint the Chief Executive Officer by written instrument.
The Minister can only appoint a person as the Chief Executive Officer if the Minister
is satisfied that the person has appropriate qualifications, knowledge or experience.
The Chief Executive Officer will hold office on either a full-time or part-time basis.
Section 154B - Period of appointment for the Chief Executive Officer
New section 154B will provide that the Chief Executive Officer will hold office for
the period specified in the instrument of appointment. This period must not exceed 5
years.
Section 154C - Acting appointments
New section 154C will enable the Minister to appoint a person to act as the Chief
Executive Officer of TEQSA as follows:
where there is a vacancy in the position (even if an appointment has not
previously been made); or
during any or all periods when the Chief Executive Officer is absent from duty
or from Australia, or is unable (for any reason) to perform the duties of the
position.
The Minister can only appoint a person to act as the Chief Executive Officer if the
Minister is satisfied that the person has appropriate qualifications, knowledge or
experience.
A note draws the readers attention to sections 33AB and 33A of the Acts
Interpretation Act 1901 which concern rules about appointments.
Subdivision C--Terms and conditions for the Chief Executive Officer
Section 154D - Remuneration and allowances
New section 154D will prescribe how the remuneration and allowances of the Chief
Executive Officer are to be determined. The Chief Executive Officer is to be paid the
remuneration that is determined by the Remuneration Tribunal. If no determination of
that remuneration by the Tribunal is in operation, the Chief Executive Officer is to be
paid the remuneration that is determined, in writing, by the Minister. The Chief
Executive Officer is to be paid the allowances that are determined, in writing, by the
Minister. Section 154D will have effect subject to the Remuneration Tribunal Act
1973.
Section 154E - Leave of absence
New section 154E will prescribe how the Chief Executive Officers leave entitlements
are to be determined. The Chief Executive Officers recreational leave entitlements
will be determined by the Remuneration Tribunal. If no determination of those
entitlements by the Tribunal is in operation, the Chief Executive Officer will have the
recreational leave entitlements that are determined, in writing, by the Minister. The
Minister will be able to grant the Chief Executive Officer leave of absence, other than
recreation leave, on the terms and conditions as to remuneration or otherwise that the
Minister determines.
Section 154F - Outside employment
New section 154F will prohibit the Chief Executive Officer from engaging in paid
employment outside the duties of his or her office without the Ministers approval.
Section 154G - Disclosure of interests to the Minister
New section 154G will require the Chief Executive Officer to disclose all forms of
interests (pecuniary or otherwise) which she or he holds or acquires that conflict or
could conflict with the proper performance of the Chief Executive Officers functions.
The disclosure must be made by written notice to the Minister.
Section 154H - Resignation
New section 154H will allow the Chief Executive Officer to resign from his or her
appointment by giving the Minister a written resignation. The resignation will take
effect on the day it is received by the Minister or, if a later day is specified in the
resignation, on that later day.
Section 154J - Termination of appointment
New section 154J will set out the grounds upon which the Minister may terminate the
appointment of the Chief Executive Officer, these being:
for misbehaviour; or
if the Chief Executive Officer is unable to perform the duties of his or her
office because of physical or mental incapacity; or
if the Chief Executive Officer becomes bankrupt; or
if the Chief Executive Officer takes steps to take the benefit of any law for the
relief of bankrupt or insolvent debtors; or
if the Chief Executive Officer compounds with his or her creditors; or
if the Chief Executive Officer makes an assignment of his or her remuneration
for the benefit of his or her creditors; or
if the Chief Executive officer is absent, except on leave of absence, for 14
consecutive days or for 30 days in any 12 months; or
if the Chief Executive Officer engages in paid employment contrary to section
154F; or
if the Chief Executive Officer fails, without reasonable excuse, to disclose all
interests to the Minister in accordance with new section 154G.
Section 154K - Other terms and conditions
New section 154K will provide that the Chief Executive Officer holds office on the
terms and conditions (if any) in relation to matters not covered by the TEQSA Act
that are determined by the Minister.
Subdivision D--Delegation
Section 154L - Delegation by the Chief Executive Officer
New section 154L will allow the Chief Executive Officer to, by writing, delegate any
or all of his or her functions and powers under the TEQSA Act to a member of the
staff of TEQSA. The delegate will need to hold the classification of APS Executive
Level 1 or higher, or an equivalent classification. A delegate must comply with any
written directions of the Chief Executive Officer.
Subdivision E--Directions by Minister
Item 42
Currently subsection 155(1) of the TEQSA Act empowers the Minister to give
directions to the Chief Executive Officer of TEQSA about the performance of his or
her functions. The directions must be given by legislative instrument. Item 42 will
insert the words "and the exercise of his or her powers" at the end of subsection
155(1) (before the note). This amendment will expand the Ministers direction giving
powers under subsection 155(1) so that the Minister may also give directions to the
Chief Executive Officer about the exercise of his or her powers.
Item 43
Item 43 will insert a new Subdivision F (Other matters) at the end of Division 4 of
Part 8 of the TEQSA Act. Subdivision F will include new section 155A. For the
avoidance of doubt, new section 155A will clarify that the Chief Executive Officer of
TEQSA is not subject to direction by TEQSA in relation to his or her performance of
functions, or exercise of powers, under the Financial Management and Accountability
Act 1997 or the Public Service Act 1999, in relation to TEQSA.
Item 44
Item 44 is a transitional provision. It provides that amendments of the TEQSA Act
made by Part 5 of this Bill do not affect the continuity of a direction that was given by
the Minister to the Chief Executive Officer of TEQSA under subsection 155(1) of the
TEQSA Act that was in force immediately before the commencement of this Item.
Item 45
Item 45 is a transitional provision which applies to the person holding office as the
Chief Commissioner, immediately before commencement of this Item. It provides that
the persons appointment as a Commissioner is terminated upon commencement of
this Item (ie: the day after the end of the period of 21 days beginning on the day the
Act receives the Royal Assent) and provides that the termination does not prevent the
person from being reappointed as a Commissioner.
Part 6 Notification of decisions etc.
Summary
Part 6 would give effect to a number of minor technical amendments suggested by
TEQSA - primarily related to notifying providers of decisions.
Detailed explanation
Items 46 and 47
Section 22 of the TEQSA Act requires TEQSA to notify applicants about decisions
made about registration. Where TEQSA grants an application, subparagraph 22(b)(i)
requires TEQSA to notify the applicant in writing about the provider category in
which the applicant is registered, as well as the reasons for the decision about the
category.
Item 46 would amend subparagraph 22(b)(i) to remove the requirement for TEQSA
to give reasons. Item 47 inserts a new subparagraph 22(b)(ia) which requires TEQSA
to give reasons where the provider category granted is not the category applied for
under subsection 18(1). The net effect of this is that TEQSA does not need to provide
reasons where it approves an application for a particular provider category.
Items 48 and 49
Section 34 of the TEQSA Act requires TEQSA to notify a provider when it decides to
impose, vary or revoke a condition on the providers registration. Item 49 inserts a
new subsection 34(2) which provides that TEQSA does not need to give a provider
reasons for its decision to vary or revoke a condition in circumstances where the
variation or revocation is the outcome that was being sought by the provider in its
application. Item 48 is a consequential renumbering amendment for the purposes of
Item 49.
Item 50
Item 50 inserts a new section 101A which requires TEQSA to give a provider a
written notification within 30 days of a decision to impose a sanction under sections
99, 100 or 101 (including reasons for the decision). This amendment is consistent
with other provisions of the TEQSA Act requiring notification and reasons for
decisions (eg. sections 22, 34, 37 and 40).
Items 51, 52 and 53
Items 51, 52 and 53 are application provisions which provide that the amendments in
Part 5 to sections 22, 34 and 101A will only apply to TEQSA decisions made after the
commencement of Items 51, 52 and 53.
Part 7 Directions to TEQSA
Summary
Part 7 would amend the scope of the directions that the Minister may give to TEQSA
such that the directions can now be given to TEQSA in relation to the performance of
TEQSAs functions and the exercise of its powers. However, the directions given can
be of a general nature only.
Detailed explanation
Item 54 amends subsection 136(1) and Item 55 repeals and substitutes subsection
136(2) of the TEQSA Act. These provisions concern the Ministers power to give
directions to TEQSA.
Currently, the Minister may, by legislative instrument, give a direction to TEQSA if
the Minister considers that the direction is necessary to protect the integrity of the
higher education sector. Item 54 will amend that scope so that the Minister may
provide directions to TEQSA in relation to the performance of its functions and the
exercise of its powers. This amendment broadens the scope and reduces the ambiguity
of the Ministers power to give direction to TEQSA.
Item 55 repeals subsection 136(2) to provide that directions given under new
subsection 136(1) must be general in nature only (ie the Minister cannot give
directions on specific matters). New section 136(2A) is also inserted by this Item to
provide that the general direction given in accordance with subsection 136(2) does not
apply to a direction that relates to the power conferred by subsection 158(1) which
confers the power to determine fees.
Item 56 is a transitional provision which provides that where a direction was given
under subsection 136(1) of the TEQSA Act and was in force immediately before the
commencement of this item, the amendments made by this Part 7 do not affect the
continuity of the direction which has already been given.
Part 8 Fees
Summary
Currently TEQSA may, by legislative instrument, determine the fees that it charges
for things done in the performance of its functions, including determining the way in
which a fee is worked out, or other matters relating to fees including the
circumstances in which they are paid in instalments, set off against another amount
payable and in which they are waived. Part 8 would amend the TEQSA Act to provide
that TEQSA must not make such a legislative instrument unless the Minister has
given written approval. Part 8 also requires that TEQSA give the Minister such
information the Minister reasonably requires to assist in making a decision to give (or
not give) such approval.
Detailed explanation
Item 57 amends section 158 of the TEQSA Act which concerns fees. Under
subsection 158(1), TEQSA may, by legislative instrument, determine the fees that it
may charge for things done in the performance of its functions. New subsection
158(5) will provide that TEQSA must not make a legislative instrument under
subsection 158(1) unless the Minister has given written approval to the making of that
instrument. New subsection 158(6) provides that TEQSA must give the Minister such
information as the Minister reasonably requires for the purposes of making a decision
under subsection 158(5).
Item 58 is an application provision and provides that the amendment to section 158 of
the TEQSA Act applies to instruments made after the commencement of this item.