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2019
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
TERTIARY EDUCATION QUALITY AND STANDARDS
AGENCY AMENDMENT BILL 2019
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Education,
the Honourable Dan Tehan MP)
TERTIARY EDUCATION QUALITY AND STANDARDS
AGENCY AMENDMENT BILL 2019
OUTLINE
The purpose of the Tertiary Education Quality and Standards Agency Amendment
Bill 2019 (the Bill) is to amend the Tertiary Education Quality and Standards
Agency Act 2011 (TEQSA Act) to give effect to the Government's decision to
implement recommendations arising from the Review of the impact of the TEQSA
Act on the higher education sector (the Review).
The Review was conducted in line with section 203 of the TEQSA Act, which
requires that the Minister must, before 1 January 2016, cause a review to be started
of the impact on the higher education sector of the TEQSA Act.
Overall the Review was positive about the move to a single national regulator in
2012, finding that the Act is operating effectively and as intended. The Review did
not recommend changes that would significantly alter the regulatory framework
established by the TEQSA Act.
The Review recommended some amendments to the TEQSA Act that are designed
to improve the Act's administration, strengthen TEQSA's regulatory role and better
reflect the evolution of the role of the Higher Education Standards Panel (the
Panel) as the statutory advisory body established under the Act. Other
non-legislative recommendations were made to improve the function and efficiency
of TEQSA.
The Bill gives effect to the Review recommendations that require amendments to
the TEQSA Act. The measures contained in Schedule 1 will:
simplify the legislative framing of the Higher Education Standards Framework
by removing references to specific categories of non-threshold standards (the
Teaching and Learning Standards, the Research Standards and the
Information Standards) that have never been made and are not needed, but
retain the capacity to make additional standards if the need arises
remove references to "the Research Minister" (i.e. the Minister responsible for
the Australian Research Council Act 2001) in provisions that relate to
appointments and acting appointments of TEQSA Commissioners and Panel
members and to functions of the Panel; and require that advice on new
standards need only be sought from "the Research Minister" if "the Minister"
is not also "the Research Minister"
require TEQSA to advise the Minister and the Panel before it undertakes a
quality review, under section 60 of the TEQSA Act, that could have an impact
on a majority of higher education providers, which will remove the need for
restrictions currently placed on such assessments by Ministerial Direction
No.2 of 2013
provide that an overseas university, not registered by TEQSA, can offer a
course of study that is not wholly or mainly provided from Australian premises
and use the word "university" to represent its operations without committing
an offence
2
amend quorum requirements for TEQSA meetings to be a majority of
Commissioners
expand the skillset that the Minister must ensure is encompassed by Panel
members and expand the functions of the Panel to more appropriately reflect
its role to provide oversight of TEQSA's strategic and operational planning
and approaches to deregulation
provide that it is an exception to the offence of unauthorised disclosure or use
of information if the entity the information relates to has consented in writing
to the disclosure or use
allow TEQSA to disclose higher education information to officers in the
Department in addition to the Secretary and to also disclose personal
information that relates to TEQSA's functions to the Minister, a member of
staff of the Minister, the Secretary or to officers in the Department
allow TEQSA to disclose information for research purposes
allow TEQSA to disclose information to a complainant in relation to a
complaint without the consent of the body to which the information applies
(noting that TEQSA will still be subject to common law principles of natural
justice and procedural fairness in determining whether such the disclosure is
appropriate).
3
FINANCIAL IMPACT STATEMENT
There is no financial impact associated with the Bill.
4
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011
TERTIARY EDUCATION QUALITY AND STANDARDS AGENCY
AMENDMENT BILL 2019
The Tertiary Education Quality and Standards Agency Amendment Bill 2019 (the
Bill) is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of the Bill
The purpose of the Bill is to amend the Tertiary Education Quality and Standards
Agency Act 2011 (TEQSA Act) to give effect to the Government's decision to
implement recommendations arising from the Review of the impact of the TEQSA
Act on the higher education sector (the Review).
The Review was conducted in line with section 203 of the TEQSA Act, which
requires that the Minister must, before 1 January 2016, cause a review to be started
of the impact on the higher education sector of the TEQSA Act.
Overall the Review was positive about the move to a single national regulator in
2012, finding that the Act is operating effectively and as intended. The Review did
not recommend changes that would significantly alter the regulatory framework
established by the TEQSA Act.
The Review recommended some amendments to the TEQSA Act that are designed
to improve the Act's administration, strengthen TEQSA's regulatory role and better
reflect the evolution of the role of the Higher Education Standards Panel (the
Panel) as the statutory advisory body established under the Act. Other
non-legislative recommendations were made to improve the function and efficiency
of TEQSA.
The Bill gives effect to the Review recommendations that require amendments to
the TEQSA Act. The measures contained in Schedule 1 will:
simplify the legislative framing of the Higher Education Standards Framework
by removing references to specific categories of non-threshold standards (the
Teaching and Learning Standards, the Research Standards and the
Information Standards) that have never been made and are not needed, but
retain the capacity to make additional standards if the need arises
remove references to "the Research Minister" (i.e. the Minister responsible for
the Australian Research Council Act 2001) in provisions that relate to
appointments and acting appointments of TEQSA Commissioners and Panel
members and to functions of the Panel; and require that advice on new
standards need only be sought from "the Research Minister" if "the Minister"
is not also "the Research Minister"
5
require TEQSA to advise the Minister and the Panel before it undertakes a
quality review, under section 60 of the TEQSA Act, that could have an impact
on a majority of higher education providers, which will remove the need for
restrictions currently placed on such assessments by Ministerial Direction
No.2 of 2013
provide that an overseas university, not registered by TEQSA, can offer a
course of study that is not wholly or mainly provided from Australian premises
and use the word "university" to represent its operations without committing
an offence
amend quorum requirements for TEQSA meetings to be a majority of
Commissioners
expand the skillset that the Minister must ensure is encompassed by Panel
members and expand the functions of the Panel to more appropriately reflect
its role to provide oversight of TEQSA's strategic and operational planning
and approaches to deregulation
provide that it is an exception to the offence of unauthorised disclosure or use
of information if the entity the information relates to has consented in writing
to the disclosure or use
allow TEQSA to disclose higher education information to officers in the
Department in addition to the Secretary and to also disclose personal
information that relates to TEQSA's functions to the Minister, a member of
staff of the Minister, the Secretary or to officers in the Department
allow TEQSA to disclose information for research purposes
allow TEQSA to disclose information to a complainant in relation to a
complaint without the consent of the body to which the information applies
(noting that TEQSA will still be subject to common law principles of natural
justice and procedural fairness in determining whether such the disclosure is
appropriate).
Analysis of human rights implications
The Bill engages the following human rights:
the right to work - Articles 6 and 7 of the International Covenant on
Economic, Social and Cultural Rights (ICESCR)
the right to education - Article 13 of the ICESCR
the right to privacy and reputation - Article 17 of the International Covenant
on Civil and Political Rights (ICCPR).
Right to work
The Bill engages the right to work which is set out in Article 6 of the ICESCR. Article
6(1) recognises that the right to work, which includes the right of everyone to the
opportunity to gain his living by work which he freely chooses or accepts, and that
states will take appropriate steps to safeguard this right. The Bill also engages the
right to just and favourable conditions of work contained in Article 7 of the ICESCR,
including rights to safe and healthy working conditions and equal opportunity for
advancement.
The Bill expands the role of the Panel to include provision of advice and
recommendations to TEQSA beyond matters relating to the Higher Education
6
Standards Framework (including on TEQSA's strategic objectives, corporate
planning, streamlining of activities and approaches to deregulation). The Bill will
also ensure that Panel members collectively have contemporary experience in the
provision of higher education across the sector, which will potentially provide for a
more diverse membership.
This Bill is compatible with the right to work as these amendments will ensure that
the Panel's experience and breadth of membership are sufficient to carry out its
oversight and advisory roles, and provide greater assurance for the sector that the
Panel can provide balanced and timely advice on emerging issues in higher
education. The amendment to the composition of the Panel may also provide
opportunities for a broader pool of individuals to become members in future.
Right to education
The Bill engages the right to education which is set out in Article 13 of the ICESCR.
The right to education recognises the important personal, societal, economic and
intellectual benefits of education.
The Bill requires that TEQSA inform the Minister and the Panel before it undertakes
a sector-wide quality review under section 60 of the TEQSA Act, to ensure that the
resource implications of such activity and the regulatory burden it would create for
providers are considered before undertaking such a review. The Bill also makes a
number of essentially technical amendments, including to allow delegation of
functions, sharing of higher education information in certain circumstances, and
clarifying quorum arrangements for meetings of the TEQSA Commissioners.
The Bill is compatible with the right to education because, in combination, these
amendments will allow TEQSA to carry out its regulatory and quality assurance
roles more effectively and efficiently. This will enable higher education providers to
continue to focus on delivering the highest quality teaching, learning and research,
and maximise the quality of educational outcomes for students with the least
necessary regulatory burden from TEQSA's operations.
Right to privacy and reputation
This Bill engages with Article 17(1) and 17(2) of the International Covenant on Civil
and Political Rights (ICCP), which states that "no one shall be subject to arbitrary or
unlawful interference with his privacy ... nor to unlawful attacks on his honour and
reputation" and that "everyone has the right to the protection of the law against such
interference or attacks".
The right to privacy under Article 17 can be permissibly limited in order to achieve a
legitimate objective and where the limitations are lawful and not arbitrary. In order
for an interference with the right to privacy to be permissible, the interference must
be authorised by law, be for a reason consistent with the ICCPR and be reasonable
in the particular circumstances.
The Bill will allow TEQSA to disclose personal information (within the meaning of
the Privacy Act 1988), where the information relates to a regulated entity, is
obtained by TEQSA and relates to TEQSA's functions and disclosure is limited to
7
the Minister, the Minister's staff, the Secretary and the Department for the purpose
of administering laws relating to higher education.
The amendment is necessary for TEQSA to provide personal information for the
purposes of 'fit and proper person' requirements to the Minister and Secretary (see
sections 16-25 and 22-17 of the Higher Education Support Act 2003 (HESA). This
information is an attachment to many of TEQSA's application forms and similar
information is also provided to TEQSA in 'notifications of material change'. All of the
relevant declarations concerning this information require the signature of the person
providing the information. In addition, TEQSA's application forms and guidelines
include a privacy notice informing individuals that TEQSA is obliged to protect
personal information in accordance with the Privacy Act (as indeed are the Minister,
the Minister's staff, the Secretary and staff of the Department) and that personal
information is collected in order to check an applicant's suitability to be a higher
education provider and to assess compliance with relevant legislation that TEQSA
enforces. In addition, the privacy notices explain that TEQSA usually discloses
personal information it collects for these purposes to Commonwealth agencies
responsible for the regulation of education.
The amendment also aligns with the information sharing powers in section 180-15
of HESA, which provides that the Secretary may disclose Higher Education Support
Act information (which includes personal information within the meaning of the
Privacy Act) to TEQSA or to a TEQSA staff member (within the meaning of the
TEQSA Act) - for the performance of duties or functions, or the exercise of powers,
under, or for the purposes of, the TEQSA Act.
The Bill is compatible with the right to privacy in that the amendment which limits
this right, provides for the disclosure of personal information only in a narrow range
of circumstances and for a reasonable purpose. Therefore the limitation of the right
to privacy is justifiable, reasonable and proportionate to the policy objective of
ensuring the quality of providers, and thereby protecting students and Australia's
international reputation for having a high quality higher education sector.
Conclusion
The Bill is compatible with human rights because it advances the protection
of human rights in the delivery of higher education in Australia. To the extent that it
may limit human rights, these limitations are reasonable, necessary, and
proportionate.
8
TERTIARY EDUCATION QUALITY AND STANDARDS
AGENCY AMENDMENT BILL 2019
NOTES ON CLAUSES
Clause 1 - Short title
This clause provides for the Act to be the Tertiary Education Quality and Standards
Agency Amendment Act 2019.
Clause 2 - Commencement
The table in subclause 2(1) sets out when the Act's provisions will commence. The
table provides that the whole of the Act will commence the day after the Act
receives the Royal Assent.
Subclause 2(2) provides that information in column 3 of the table at subclause 2(1)
is not part of the Act and information may be inserted into column 3 or information
in it may be edited in any published version of the Act.
Clause 3 - Schedules
This clause provides that any legislation that is specified in a schedule is amended
or repealed as set out in the applicable items in the schedule and that any other
item in a schedule has effect according to its terms.
LIST OF ABBREVIATIONS
HESA Higher Education Support Act 2003
Panel Higher Education Standards Panel
TEQSA Tertiary Education Quality and Standards Agency
TEQSA Act Tertiary Education Quality and Standards Agency Act 2011
9
Schedule 1 Amendments
Summary
The amendments contained in this schedule give effect to those recommendations
from the Review of the impact of the TEQSA Act on the higher education sector that
require a legislative response (as outlined in the Government's response to the
Review). The amendments will enhance the operation of the TEQSA Act and the
functioning of TEQSA, more clearly define the role of the Panel, and ensure the
Panel collectively has the appropriate mix of skills for its advisory and oversight
functions.
Detailed explanation
Tertiary Education Quality and Standards Agency Act 2011
Items 1 to 6 - Higher Education Standards Framework amendments
Section 5 of the TEQSA Act defines the Higher Education Standards Framework
as meaning the following standards:
the Provider Standards (comprised of the Provider Registration Standards;
the Provider Category Standards; and the Provider Course Accreditation
Standards)
the Qualification Standards
the Teaching and Learning Standards
the Research Standards
the Information Standards
any other standards made under paragraph 58(1)(h).
Section 5 also defines the Research Standards as the Research Standards that
are made under subsection 58(2).
Subsection 58(1) provides that the Minister may, by legislative instrument, make the
following standards that, together with the Research Standards (that can be made
by the Research Minister under subsection 58(2)), make up the Higher Education
Standards Framework:
the Provider Registration Standards
the Provider Category Standards
the Provider Course Accreditation Standards
the Qualification Standards
the Teaching and Learning Standards
the Information Standards
any other standards against which the quality of higher education can be
assessed.
10
The three types of Provider Standards (Provider Registration Standards, Provider
Category Standards and Course Accreditation Standards) and the Qualification
Standards together make up the 'Threshold Standards' (see the definition of that
term in section 5). These threshold standards set the minimum acceptable
requirements for the provision of higher education.
Only the four Threshold Standards have ever been made. The Teaching and
Learning Standards, the Information Standards and the Research Standards are, in
effect, non-threshold standards and no legislative instruments have been made with
respect to such non-threshold standards. TEQSA's regulatory role only involves the
application of the Threshold Standards; in detailing the regulatory requirements
under the TEQSA Act, no reference to any non-threshold standards is made.
The Higher Education Standards Framework (Threshold Standards) 2015
(F2015L01639) legislative instrument was made by the Minister under subsection
58(1) of the TEQSA Act, following an extensive review of the inaugural 2011
standards. The revised framework is organised into seven 'domains'. These
domains deal with the issues of teaching and learning, research and information to
the extent necessary for 'threshold' approval to operate in Australia (as did the
previous 2011 Threshold Standards).
Reference to these specific non-threshold standards in the TEQSA Act is now
unnecessary. Repealing them will simplify the legislative framing of the Higher
Education Standards Framework.
Capacity to make additional standards, if needed, will be retained. The definition of
Higher Education Standards Framework will still encompass any additional non-
threshold standards that may be made in the future under paragraph 58(1)(h). This
retains flexibility and would enable the Minister to make additional standards to
respond to any emerging quality-related issues in the future; or, for example, if it
were felt appropriate to incorporate aspirational standards or objectives in some
areas that are higher than the Threshold Standards required for initial registration.
This simplification will be achieved as follows:
Item 1 amends the section 5 definition of Higher Education Standards
Framework to remove reference to the Teaching and Learning Standards,
the Research Standards and the Information Standards (by repealing
paragraphs (c) to (e) of the definition).
Item 2 repeals the definition of Research Standards in section 5.
Item 3 makes a minor consequential amendment to the heading of
subsection 58(1) so that it reads 'Making the standards' (instead of 'Making
the standards (other than the Research Standards)').
Item 4 amends subsection 58(1) to omit the words ", together with the
Research Standards".
Item 5 repeals paragraphs 58(1)(f) and (g) to remove reference to the
Teaching and Learning Standards and the Information Standards.
11
Item 6 repeals subsection 58(2).
Items 7 to 12, 16, 17, 21, 22, 23 and 25 - Research Minister amendments
The Research Minister is defined in section 5 of the TEQSA Act as meaning the
Minister administering the Australian Research Council Act 2001.
The reference to a separate Research Minister is somewhat outdated as, currently,
the Administrative Arrangements Order provides that the same Minister administers
both the TEQSA Act and also the Australian Research Council Act 2001. It is also
usual practice for an Act to simply refer to 'Minister' rather than to a specific Minister
- whereby the identity of the relevant administering Minister can be ascertained by
referring to the latest Administrative Arrangements Order as made by the
Governor-General from time to time.
In addition, paragraph 5.23 of the Legislation Handbook provides that it is generally
not appropriate to place a statutory obligation on the Minister or Department
administering an Act to consult with other Ministers or Departments. It is also a
clear expectation, and a matter of good practice, for a minister exercising a power
under an Act to consult appropriately with, and take into account the views of any
other minister with an interest in the issue in question, meaning there is no practical
need for a statutory obligation to do so.
Apart from the section 5 definition, there are references to the Research Minister in
the following sections of the TEQSA Act:
section 58 (making the Higher Education Standards Framework)
section 138 (appointment of Commissioners)
section 147 (acting appointments)
section 167 (constitution of TEQSA)
section 168 (functions of TEQSA)
section 170 (appointment of Panel members).
Most of these provisions relevantly concern a requirement for the Minister to consult
with the Research Minister - removing these references is consistent with the
Legislation Handbook.
Items 7, 8, 10, 11, 16, 17, 20, 21, 22, 23 and 25 amend these provisions so that the
relevant requirements relate simply to the Minister - removing references to the
Research Minister, consistent with the Legislation Handbook.
There are, however, two instances where references to the Research Minister still
need to be retained with respect to subsections 58(3) and 58(4). Section 58
provides for the making of the Higher Education Standards Framework, which
underpins the key functions of TEQSA to register and re-register higher education
providers, and accredit and re-accredit higher education courses of study. The
making of standards under section 58 goes to the heart of TEQSA's regulatory
functions. Given that the standards address matters impacting both research and
research training, this action is of sufficient importance to justify the retention of a
statutory obligation to consult with the Research Minister, if the Research Minister is
12
not also the Minister responsible for the TEQSA Act at the time new standards are
developed.
Item 9 amends subparagraph 58(3)(b)(ii) so that it provides that the Minister must
not make a standard under section 58 unless the Panel has prepared a draft and
the Minister has consulted with the state and territory ministers for education,
TEQSA and, if the Minister is not also the Research Minister, the Research
Minister.
Item 12 amends subparagraph 58(4)(b)(ii) so that, before the Minister makes a
standard under section 58, the Minister must have regard to the draft prepared by
the Panel and any advice or recommendations given by the Panel, state and
territory ministers for education, TEQSA and, if the Minister is not also the
Research Minister, the Research Minister.
Items 13 and 14 - Section 60 - Quality (including thematic) assessments
Under section 60 of the TEQSA Act, TEQSA may undertake quality assessments of
higher education providers (including thematic assessments) to assess:
the level of quality of higher education provided
whether there are any systemic issues relating to a particular course of
study that leads that a particular regulated higher education award
the level of quality of, or any systemic issues relating to courses of study
that lead that regulated higher education awards.
Item 14 amends section 60 to add a new subsection 60(2) which will require
TEQSA, at least 60 days before starting a review or examination that could have an
impact on a majority of higher education providers, to give written notice to both the
Minister and the Panel.
Item 13 makes a consequential numbering amendment to section 60 (to number
the current text as subsection 60(1)).
On commencement of this Act (following passage by Parliament and Royal Assent),
it is intended that the current restriction on TEQSA's capacity to undertake
sector-wide quality reviews under section 60 only if it "has surplus resources after
fully achieving" its regulatory activities, which is set out in Clause 4(ii) of Ministerial
Direction No. 2 of 2013, will be lifted by repeal of the Direction.
Item 15 - Subparagraphs 108(1)(a)(ii) and (2)(a)(ii) - Use of the "university" title
by overseas universities
Subsection 108(1) provides that a regulated entity commits an offence if it is not a
registered higher education provider that is registered in a provider category that
allows the use of the word "university" and it uses the word "university" to represent
itself or its operations as a university in relation to:
13
an Australian course of study (subparagraph 108(1)(a)(i))
an overseas course of study to the extent that the course of study is or is to
be provided from Australian premises related to an overseas higher
education award (subparagraph 108(1)(a)(ii))
a regulated higher education award (subparagraph 108(1)(a)(iii).
Subsection 108(2) provides that a regulated entity is liable for a civil penalty if it is
not a registered higher education provider that is registered in a provider category
that allows the use of the word "university" and it uses the word "university" to
represent itself or its operations as a university in relation to:
an Australian course of study (subparagraph 108(2)(a)(i))
an overseas course of study to the extent that the course of study is or is to
be provided from Australian premises related to an overseas higher
education award (subparagraph 108(2)(a)(ii))
a regulated higher education award (subparagraph 108(2)(a)(iii)).
There is currently a misalignment between the provisions in relation to an overseas
course of study in subparagraphs 108(1)(a)(ii) and 108(2)(a)(ii) and the sections of
the TEQSA Act that define who can apply for registration as a higher education
provider. This could result in an overseas university committing an offence, or being
liable for a civil penalty, if it were legitimately operating in Australia without
registration when, in fact, it is not capable of being registered.
This situation could arise where an overseas university offers an experience
component for one of its courses within Australia, and uses the word "university" in
promotional or administrative materials within Australia, but it is not capable of
being registered as a provider under the TEQSA Act, because the component
offered does not meet the definition of a regulated higher education award in
section 6 of the TEQSA Act. This definition includes "an overseas higher education
award offered or conferred for the completion of an overseas course of study" but is
limited to courses provided "wholly or mainly" from Australian premises.
This item addresses this concern by inserting the words "wholly or mainly" after the
word "provided" in subparagraphs 108(1)(a)(ii) and (2)(a)(ii), meaning that an
overseas university would not be subject to the penalty provisions if it is not
purporting to deliver a course "wholly or mainly" in Australia.
Item 18 - Subsection 149(3) - Quorum
Section 149 of the TEQSA Act concerns the conduct of meetings of TEQSA.
Currently subsection 149(3) provides that the required quorum for meetings is 2
commissioners. Item 18 changes this to 'a majority of Commissioners'.
Given up to five Commissioners in total may be appointed, the current provision
could see a minority of Commissioners be deemed a quorum if four or five
commissioners have been appointed. The amendment brings TEQSA's quorum
provision in line with those of other Commonwealth statutory entities.
14
Item 19 - After paragraph 167(2)(a) - Panel appointments
Subsection 167(2) of the TEQSA Act concerns the matters the Minister must take
into account when appointing members of the Panel.
This item inserts a new paragraph 167(2)(aa) to require the Minister to ensure
Panel members collectively have contemporary experience in the provision of
higher education by higher education providers that are both universities and
non-universities. Ensuring that Panel members have contemporary experience
across the entirety of the sector is important for both its oversight and advisory
roles, to ensure any advice provided is balanced and reflects understanding of
issues relevant to different provider types.
Item 24 - At the end of subsection 168(1) - Role of the Panel
Subsection 168(1) of the TEQSA Act sets out the functions of the Panel.
Item 24 broadens those functions by adding a new paragraph 168(1)(c) which
provides that the Panel also has the function of providing advice and
recommendations to TEQSA (either of its own initiative, or at the request of
TEQSA) about the following:
TEQSA's strategic objectives, corporate plan (and performance against the
plan), reform agenda, streamlining of activities and resourcing requirements
approaches to deregulation - including the application of principles relating
to regulatory necessity, risk, and proportionality in relation to the different
types of higher education providers.
This amendment ensures the TEQSA Act appropriately reflects the full functions of
the Panel, including those which were previously given to the TEQSA Advisory
Council by virtue of Ministerial Direction No. 2 of 2013, but passed to the Panel
when the two bodies were amalgamated in 2015.
Items 26 to 30 - Information sharing
Item 26 - At the end of section 188 - Disclosure with consent of the entity
concerned
Subsection 188(1) of the TEQSA Act provides that a person commits an offence if
he or she is an entrusted person (within one of the listed categories of entrusted
person) who has obtained higher education information by virtue of being an
entrusted person and then discloses it to another person, or uses the information.
Subsection 187(2) provides that subsection 187(1) does not apply in the following
circumstances:
when the disclosure or use is for the purposes of the TEQSA Act or the
Education Services for Overseas Students Act 2000
15
when the disclosure or use is otherwise connected with the performance of
duties as an entrusted person
when the disclosure or use is required or authorised by or under a
Commonwealth or state or territory law.
Item 26 adds a new subsection 187(3) to provide that subsection 187(1) will also
not apply in circumstances where an entity regulated by TEQSA consents in writing
to the disclosure or use of higher education information that relates to that entity.
The Review notes that the proposed amendment was tested with a small number of
providers and peak bodies and no concerns were raised, given consent is required
from providers prior to disclosure or use of relevant information by TEQSA.
A Note to new subsection 188(3) explains that a defendant will bear an evidential
burden in relation to a subsection 187(3) matter (see subsection 13.3(3) of the
Criminal Code).
Item 27 - Section 192 - Disclosure to officers of the Department and
disclosure of personal information
Section 192 of the TEQSA Act provides that TEQSA may disclose higher education
information to the Minister, a person employed as a member of the Minister's staff
(under sections 13 or 20 of the Members of Parliament (Staff) Act 1984) or the
Secretary for the purpose of administering laws relating to higher education.
This item repeals and substitutes section 192.
Under new section 192, for the purpose of administering laws relating to higher
education, TEQSA may disclose the following information to: (1) the Minister; (2) a
person employed as a member of the Minister's staff (under sections 13 or 20 of the
Members of Parliament (Staff) Act); (3) the Secretary; or (4) an APS employee of
the Department:
higher education information
information relating to a regulated entity that is obtained by TEQSA, that
relates to TEQSA's functions and is personal information within the meaning
of the Privacy Act.
The amendment provides for TEQSA to disclose personal information (within the
meaning of the Privacy Act), where the information relates to a regulated entity, is
obtained by TEQSA and relates to TEQSA's functions and is for the purpose of
administering laws relating to higher education.
The amendment is necessary for TEQSA to provide personal information for the
purposes of 'fit and proper person' requirements to the Minister and Secretary (see
sections 16-25 and 22-17 of HESA). This information is an attachment to many of
TEQSA's application forms and similar information is also provided to TEQSA in
'notifications of material change'. All of the relevant declarations concerning this
information require the signature of the person providing the information. In
addition, TEQSA's application forms and guidelines include a privacy notice
informing individuals that TEQSA is obliged to protect personal information in
16
accordance with the Privacy Act (as indeed are the Minister, the Minister's staff, the
Secretary and staff of the Department) and that personal information is collected in
order to check an applicant's suitability to be a higher education provider and to
assess compliance with relevant legislation that TEQSA enforces. In addition, the
privacy notices explain that TEQSA usually discloses personal information it
collects for these purposes to Commonwealth agencies responsible for the
regulation of education.
The amendment also broadens the section 192 disclosure powers by enabling
TEQSA to disclose higher education and personal information to staff of the
Department as well as the Secretary. TEQSA already has capacity to disclose
higher education information to employees of the Department under section 194.
Inclusion of the Department in section 192 will facilitate the efficient administration
of any sharing of personal information necessary to manage 'fit and proper person'
requirements or other matters relating to higher education.
The amendment also aligns with the information sharing powers in section 180-15
of HESA, which provides that the Secretary may disclose Higher Education Support
Act information (which includes personal information within the meaning of the
Privacy Act) to TEQSA or to a TEQSA staff member (within the meaning of the
TEQSA Act) - for the performance of duties or functions, or the exercise of powers,
under, or for the purposes of, the TEQSA Act.
Item 28 - After section 195 - Disclosure for research purposes and disclosure
to a complainant
This item inserts new sections 195A (disclosure of information to other persons)
and 195B (disclosing information to complainants) into the TEQSA Act.
New subsection 195A(1) provides that TEQSA may disclose higher education
information (see the definition of higher education information in section 5) to a
person referred to in new subsection 195A(3) for the purpose of research relating to
providing higher education - including research relating to quality assurance, or to
planning the provision of higher education.
New subsection 195A(2) provides that where the higher education information in
question was provided by a regulated entity, then TEQSA can only disclose it under
new subsection 195A(1) if the entity consents in writing.
New subsection 195A(3) provides that the following are persons for the purposes of
new subsection 195A(1):
a person employed or engaged by a higher education provider
a person employed or engaged by a body that has been determined in an
instrument made under new subsection 195A(4).
New subsection 195A(4) enables TEQSA, by a disallowable legislative instrument
to determine a body for the purposes of new paragraph 195A(3)(b).
New section 195A will enable information sharing for research purposes in line with
disclosure provisions in HESA (section 180-25). It will provide TEQSA with more
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flexibility to use such information to generate insights through research. The new
section also strengthens TEQSA's capacity to perform advisory, data analysis, and
training functions related to the quality and regulation of higher education, as
outlined at paragraphs 134(1)(d) to (j) of the TEQSA Act.
New section 195B will enable TEQSA to disclose higher education information to a
person where:
the person has made a complaint to TEQSA about a regulated entity's
compliance with the TEQSA Act or the ESOS Act (including any legislative
instruments made under either of these Acts)
TEQSA is satisfied that the information to be disclosed relates to the subject
matter of the complaint.
Currently TEQSA can publish such information - see sections 196 (disclosing
information to the public) and 198 (National Register of higher education providers)
- but it cannot disclose the information to individual complainant students. New
section 195B will improve TEQSA's capacity to respond appropriately to
complainants, even when the entity concerned may not consent to the release of
the information. Any decision to disclose will remain subject to principles of natural
justice, including an opportunity for an affected entity to make a case for
non-disclosure and for any such concerns to be considered by TEQSA before a
disclosure is made.
Items 29 and 30 - Section 197 - National security information
Section 197 of the TEQSA Act provides that TEQSA may not exercise its powers to
disclose higher education information where the information concerned is national
security information (within the meaning of the National Security Information
(Criminal and Civil Proceedings) Act 2004).
Items 29 and 30 make consequential amendments to section 197 of the TEQSA Act
to insert reference to new sections 195A (which provides that TEQSA may disclose
higher education information for the purpose of research) and 195B (which provides
that TEQSA may disclose higher education information to a complainant). Section
197 will therefore provide that paragraph 192(1)(d) and sections 193, 194, 195,
195A, 195B and 196 do not apply to national security information
Item 31 - Application provisions
Subitem 31(1) provides that the amendments made to section 108 of the TEQSA
Act (see item 15) apply in relation to uses of the word 'university' on or after the
commencement of item 31 (i.e. the day after this Bill, once enacted, receives the
Royal Assent).
Subitem 31(2) provides that the amendment made to section 149 of the TEQSA Act
(see item 18) applies in relation to meetings held on or after the commencement of
item 31 (i.e. the day after this Bill, once enacted, receives the Royal Assent).
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Subitem 31(3) provides that the amendments made to section 167 of the TEQSA
Act (see items 19 to 21) apply in relation to appointments made on or after the
commencement of item 31 (i.e. the day after this Bill, once enacted, receives the
Royal Assent).
Subitem 31(4) provides that the amendments made to section 188 of the TEQSA
Act (see item 26) apply in relation to the disclosure or use of higher education
information on or after the commencement of item 31 (i.e. the day after this Bill,
once enacted, receives the Royal Assent).
Subitem 31(5) provides that the repeal and substitution of section 192 of the
TEQSA Act (see item 27) applies in relation to the disclosure of information on or
after the commencement of item 31 (i.e. the day after this Bill, once enacted,
receives the Royal Assent).
Subitem 31(6) provides that new sections 195A and 195B of the TEQSA Act (see
item 28) apply in relation to the disclosure of higher education information on or
after the commencement of item 31 (i.e. the day after this Bill, once enacted,
receives the Royal Assent) - whether the information was obtained before, on or
after that commencement.
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