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2013-2014
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
TERTIARY EDUCATION QUALITY AND STANDARDS
AGENCY AMENDMENT BILL 2014
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be moved on behalf of the Government
(Circulated by authority of the Minister for Education,
the Honourable Christopher Pyne MP)
Amendments to the Tertiary Education Quality and
Standards Agency Amendment Bill 2014
PURPOSE
These Government amendments to the Tertiary Education Quality and
Standards Agency Amendment Bill 2014 (the Bill) are in direct response to
recommendations of the Senate Education and Employment Legislation
Committee in its inquiry into the Bill and the minority dissenting reports.
The Bill was referred to the Senate Committee for inquiry on 6 March 2014.
The Senate Committee tabled its report on 16 June 2014 and recommended
that the Senate pass the Bill. However, dissenting reports were also made by
the Labor Senators and the Australian Greens Senator.
OUTLINE
The purpose of the amendments is to:
delete Part 1 of Schedule 1 to the Bill, which would have removed the
Tertiary Education Quality and Standards Agency's (TEQSA's) thematic
quality assessment function;
permit TEQSA to extend registration and accreditation periods only where
it has not previously extended that registration or accreditation period;
amend the transitional provisions of the Bill to provide that the incumbent
Chief Commissioner and Chief Executive Officer and the incumbent
Commissioners will retain their positions under the amended TEQSA Act
for the balance of their existing terms;
restrict TEQSA's delegation power so as to allow TEQSA to delegate its
powers and functions only to Commissioners and TEQSA staff;
amend the ministerial direction power under section 136 and section 155
of the TEQSA Act to make such directions disallowable legislative
instruments despite section 44 of the Legislative Instruments Act 2003.
FINANCIAL IMPACT STATEMENT
The amendments will not affect the expected financial impact of the Bill as
introduced.
NOTES ON AMENDMENTS
Amendments 1 to 3
Amendments 1, 2 and 3 amend clause 2 of the Bill, the commencement
provision. Amendment 1 removes reference to Part 1 of Schedule 1 to the Bill
(quality assessments) from the commencement provision, specifically from
table item 2 of column 1 in clause 2. Amendments 2 and 3 omit and substitute
table items 3 and 4 concerning Schedule 1, Part 4 of the Bill (Commissioners)
and Schedule 1, Part 5 (Chief Executive Officer etc) to provide that both Part
4 and 5 commence on the day after the Act receives the Royal Assent.
Amendment 4
Amendment 4 provides that Schedule 1, Part 1 of the Bill be opposed.
Amendment 5
Amendment 5 inserts two new items after item 6 of the Bill which affect the
delegation provision in section 199 of the TEQSA Act. New item 6A amends
paragraph 199(1)(b) of the TEQSA Act to remove the words "classification; or"
and replace with "classification". The purpose of this amendment is to ensure
that TEQSA's functions and powers may only be delegated to a
Commissioner, or member of the Staff of TEQSA who holds the classification
of APS Executive Level 1 or higher, or an equivalent classification. New
item 6B repeals paragraphs 199(1)(c) and (d) which provide that powers can
be delegated to a Commonwealth authority; or a person who holds any office
or appointment under a law of the Commonwealth.
Amendments 6 and 7
Amendments 6 and 7 amend items 17 and 20 in Schedule 1 to the Bill.
Item 17 of the Bill inserts new Division 3A - Extension of registration period
into the TEQSA Act and Item 20 inserts new Division 5 - Extension of
accreditation period into the TEQSA Act. New Division 3A contains new
subsection 37A(1) which provides that TEQSA may extend the period of a
registered higher education provider's registration and new Division 5
contains new subsection 57A(1) which provides that TEQSA may extend the
period of the accreditation of a course of study. Amendments 6 and 7 will
amend new subsections 37A(1) and 57A(1) to provide that TEQSA may
extend the registration or accreditation period so long as the period has not
been previously extended by TEQSA.
Amendment 8
Amendment 8 omits item 36 of Schedule 1 to the Bill which concerns the
transitional arrangements for the termination of Commissioners' appointments
and replaces this item with a revised transitional provision concerning
Commissioners' appointments. Amendment 8 provides in new subitem 36(1)
that the scope of item 36 is that it applies if a person held office as a
Commissioner immediately before the commencement of this item. New
subitem 36(2) in amendment 8 provides for the continuity of a Commissioner's
appointment. In particular, that the person's instrument of appointment has
effect, after the commencement of this item, as if it were an instrument of
appointment made under subsection 138(1) of the Tertiary Education Quality
and Standards Agency Act 2011 (as amended by this Part); and for the
balance of the person's term of appointment that remained immediately
before the commencement of this item.
Amendment 9
Item 42 of Part 5 of Schedule 1 to the Bill contains provisions concerning the
Minister's powers under section 155 of the TEQSA Act to give directions to
the Chief Executive Officer. In particular item 42 extends the Minister's ability
to give directions to the Chief Executive Officer to include directions about the
exercise of his or her powers.
Subsection 155(1) of the TEQSA Act contains a note which explains that
section 42 (disallowance) and Part 6 (sunsetting) of the Legislative
Instruments Act 2003 (LIA) do not apply to the direction that the Minister gives
under subsection 155(1). The note further refers to section 44 and 54 of the
LIA.
Amendment 9 inserts new items 42A and 42B into Part 5 of Schedule 1 to the
Bill. Item 42A repeals the note under subsection 155(1) of the TEQSA Act
and substitutes a note to the effect that Part 6 (sunsetting) of the LIA does not
apply to the direction. The note further refers to section 54 of that Act. The
effect of this amendment is to remove reference to section 42 (disallowance)
from the note.
Item 42B inserts a new subsection 155(1A) into the TEQSA Act which
provides that section 44 of the LIA does not apply in relation to a direction
under subsection 155(1) of the TEQSA Act. A note under the new
subsection 155(1A) explains that this means that section 42 (disallowance) of
the LIA applies to the direction.
The combined effect of item 42A and item 42B is that a written direction given
by the Minister to the Chief Executive Officer under subsection 155(1) is
disallowable.
Amendment 10
Item 45 of Part 5 of Schedule 1 to the Bill provides transitional provisions that
terminate the existing Chief Commissioner's appointment upon the
commencement of the item in accordance with the terms of that item.
Amendment 10 omits item 45 and substitutes transitional provisions in respect
of the Chief Executive Officer.
New subitem 45(1) provides that item 45 applies if a person held office as the
Chief Commissioner immediately before the commencement of the item. The
subitem refers to that person as the substantive appointee.
New subitem 45(2) provides that the substantive appointee is the Chief
Executive Officer throughout the period (a) starting at the commencement of
this item 45 and (b) ending when the substantive appointee ceases to hold
office as the Chief Commissioner. The subitem refers to this period as the
transition period.
New subitem 45(3) provides that if a person is acting as the Chief
Commissioner at any time during the transition period, then, while the acting
appointee is so acting (a) the acting appointee must perform all the functions
and duties and may exercise all the powers of the Chief Executive Officer and
(b) the TEQSA Act (as amended by this Part 5 of Schedule 1 of the Bill) and
any other law of the Commonwealth, applies in relation to the acting
appointee as if the acting appointee were the Chief Executive Officer.
New subitem 45(4) provides that sections 154A to154K of the TEQSA Act (as
amended by Part 5 of Schedule 1 of the Bill) have no effect during the
transition period.
Section 154A of the TEQSA Act (as amended by Part 5 of Schedule 1 of the
Bill) provides for the appointment of the Chief Executive Officer. New
subitem 45(5) provides that subitem 45(4) does not prevent the making of an
appointment during the transition period under section 154A of the TEQSA
Act (as amended by Part 5 of Schedule 1 of the Bill) if the appointment takes
effect after the end of the transition period.
Amendment 11
Item 54 of Part 7 of Schedule 1 to the Bill contains provisions concerning the
Minister's powers under section 136 of the TEQSA Act to give directions to
TEQSA.
Subsection 136(1) of the TEQSA Act contains a note which explains that
section 42 (disallowance) and Part 6 (sunsetting) of the LIA do not apply to
the direction that the Minister gives under subsection 136(1). The note further
refers to section 44 and 54 of the LIA.
Amendment 11 inserts new item 54A which repeals the note under subsection
136(1) of the TEQSA Act and substitutes a note to the effect that Part 6
(sunsetting) of the LIA does not apply to the direction. The note further refers
to section 54 of that Act. The effect of this amendment is to remove reference
to section 42 (disallowance) from the note.
Amendment 12
Item 55 of Part 7 of Schedule 1 of the Bill repeals subsection 136(2) of the
TEQSA Act and substitutes new subsections 136(2) and 136(2A). This
amendment amends item 55 of the Bill to insert a further new subsection
136(2B) to the TEQSA Act.
The new subsection 136(2B) provides that section 44 of the LIA does not
apply in relation to a direction under subsection 136(1) of the TEQSA Act. A
note under the new subsection 136(2B) explains that this means that
section 42 (disallowance) of the LIA applies to the direction.
The combined effect of Amendment 11 and the new subsection 136(2B)
inserted by Amendment 12 is that a written direction given by the Minister to
TEQSA under subsection 136(1) is disallowable.
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