Senate

Revised Explanatory Memorandum

(Circulated by authority of the Minister for Education, the Honourable Dan Tehan MP)

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

HIGHER EDUCATION LEGISLATION AMENDMENT (PROVIDER CATEGORY STANDARDS AND OTHER MEASURES) BILL 2020

The Higher Education Legislation Amendment (Provider Category Standards and Other Measures) Bill 2020 ( 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 Bill proposes to amend the Tertiary Education Quality and Standards Agency Act 2011 ( TEQSA Act ) to:

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give effect to the Commonwealth Government's decision to implement the recommendations arising from the Review of the Higher Education Provider Category Standards ( PCS Review );

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give effect to an outstanding recommendation from the Review of the impact of the TEQSA Act on the higher education sector ( Impact Review ), to refer to the Threshold Standards as a single unified framework; and

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improve regulation of Australia's higher education sector through a small number of other measures, including to ensure student records can be appropriately handled following a provider ceasing to operate and to protect the term 'university' as it appears in Australian internet domain names.

The Bill also proposes to amend the Higher Education Support Act 2003 ( HESA ) to:

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replace references to 'Indigenous students' with 'Indigenous persons' to provide clarity around the scope of 'Indigenous Student Assistance Grants'.

The 2017?18 Budget included a measure to undertake a review of the Higher Education Provider Category Standards, which are part of a legislative instrument, the Higher Education Standards Framework (Threshold Standards) 2015 ( the Threshold Standards ). The PCS Review, undertaken by Emeritus Professor Peter Coaldrake AO in 2018-19, recommended amendments to the Provider Category Standards to ensure they support the Government's goals for a diverse and high-quality higher education sector that meets the needs of students, employers, higher education providers and the wider community, with category standards that are fit for purpose for the future.

The Higher Education Standards Panel ( the Panel ), which advises the Commonwealth Minister for Education on changes to the Higher Education Standards Framework and on higher education quality and regulatory matters, drafted amendments to the Threshold Standards to give effect to the PCS Review recommendations. To accommodate these proposed amendments to the Threshold Standards, complementary amendments are also proposed to be made to the TEQSA Act by this Bill to ensure that the Threshold Standards can be made as proposed.

The Bill provides capacity for TEQSA to make a determination, by legislative instrument, setting out factors it will take into consideration when assessing the quality and quantity of research under new university research benchmarks. It also clarifies references to the type of self-accrediting authority for 'Australian University' category providers under the new Threshold Standards.

In response to an outstanding recommendation from the Impact Review, references to the Threshold Standards will be reframed as a single unified framework, instead of four distinct types of Threshold standards as originally specified in the TEQSA Act.

Other measures to improve higher education regulation given effect by the Bill will:

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include reference to the Australian Qualifications Framework qualification type 'undergraduate certificate' in the definition of 'higher education award';

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allow TEQSA to extend the period of a provider's registration or course accreditation more than once, which will help TEQSA manage its regulatory workload better and provide low-risk providers with additional flexibility;

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allow merits review of a decision by TEQSA not to change a provider's category;

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provide TEQSA with the legislative authority to assume control of higher education student records from a registered higher education provider in the event the provider ceases operations:

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This measure is part of the Government's Job-ready Graduates package, and will help current and former higher education students obtain access to their academic records in the event that a registered higher education provider ceases to operate;

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The measure will provide TEQSA with similar legislative powers to those conferred on the Australian Skills Quality Authority ( ASQA ) in sections 211 to 214 of the National Vocational Education and Training Regulator Act 2011, which require registered training organisations to provide ASQA with a copy of their student records within 30 days of ceasing operation.

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protect use of the word 'university' in Australian internet domain names, by requiring consent of the Minister to use a domain name containing the word 'university' or its derivatives.

Analysis of human rights implications

The Bill engages the following human rights:

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the right to education - Article 13 of the International Covenant on Economic, Social and Cultural Rights ( ICESCR );

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the right to privacy - Article 17 of the International Covenant on Civil and Political Rights ( ICCPR ); and

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the right to freedom of expression - Article 19 of the ICCPR.

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 measures contained in the Bill amend the Threshold Standards to simplify and streamline provider categories, and clearly articulate the requirements to be categorised as a particular type of higher education provider. This will help to ensure a diverse and high-quality higher education sector that meets the needs of students, employers, higher education providers and the wider community.

The Bill also makes a number of amendments that are technical in nature, and are designed to provide TEQSA with greater flexibility in conducting its regulatory functions, consistent with its risk-based and proportionate approach to regulation. These will, in turn, improve higher education providers' ability to deliver high-quality teaching, learning and research, optimising educational outcomes for students.

Provisions in the Bill allowing TEQSA to collect some student records will help current and former higher education students to obtain access to their academic records in the event that a registered higher education provider ceases to operate. In the past, students of providers that have ceased operation have had difficulty in obtaining their student records, as current arrangements for accessing these records are unclear. These amendments are intended to address this.

TEQSA currently has no legislative authority to take custody of such records. In the past, when former students of closed providers have sought TEQSA's assistance to gain access to their academic records it has had to rely solely on the goodwill of, and professional relationships forged with, the relevant providers, liquidators and the like, to facilitate access to records. This measure promotes the right to education by ensuring students can access their records and transition without impediment to new educational opportunities with other tertiary education providers and, more broadly, supports student access to and participation in higher education in Australia.

The Bill is compatible with the right to education because the amendments, separately and in combination, will clarify and streamline the regulatory framework associated with the provision of education to the benefit of higher education providers, students and potential students.

The amendments in Schedule 2 confirm the arrangements provided in Part 2-2A of HESA. For detailed discussion of the human rights implications of Part 2-2A, see the statement of compatibility with human rights in the explanatory memorandum to the Higher Education Support Legislation Amendment (2016 Measures No. 1) Bill 2016.

Right to privacy

The Bill engages Article 17(1) and 17(2) of ICCPR, 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 allows, impliedly, for the right to be limited provided that limitation or purported interference is not 'arbitrary' or 'unlawful'. In order for an interference with the right to privacy to be permissible, the interference must be prescribed or authorised by law, be for a reason consistent with the ICCPR and be reasonable, necessary and proportionate means for pursuit of a legitimate objective. The UN Human Rights Committee has interpreted the requirement of 'reasonableness' to imply that any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case.

The Bill engages the right to privacy because it authorises TEQSA to collect student records that may include personal information (within the meaning of the Privacy Act 1988) from a registered higher education provider in the event the provider ceases operations. As a result, this measure would necessarily involve the access, transfer and storage of student personal information, including sensitive information.

This measure is reasonable, necessary and proportionate means for pursuit of a legitimate objective because it is designed to help current and former higher education students to obtain access to their academic records in the event that a registered higher education provider ceases to operate. Currently a student may have to approach a number of different entities such as liquidators, parent companies, new owners, former managers or academics in order to access their academic records, which in some cases may be incomplete or unusable. Information about students can only be obtained, used and disclosed under these provisions in the furtherance of this legitimate policy objective.

The proposed amendments are also targeted, measured and subject to existing privacy protections. They specify clearly the circumstances in which the transfer of personal information from a provider to TEQSA is permitted or required. Notably, as a Commonwealth agency, TEQSA and its staff are subject to the terms of the Privacy Act and the Australian Privacy Principles ( APPs ) established under that Act.

Personal information held by TEQSA as a result of this measure will only be able to be accessed and disclosed by TEQSA in circumstances consistent with the purpose for which the information was collected (APP 6). TEQSA may disclose the information to the student to whom it relates (APP12), or under certain circumstances to a second higher education provider, to facilitate the movement of a student's academic records to another higher education provider where the student enrolls with that provider and has consented to the information being passed to the new provider.

TEQSA will undertake a privacy impact assessment ( PIA ) as part of its implementation of this measure to ensure that its handling of personal information under the new provisions in the Bill complies with the Privacy Act 1988.

To the extent that these measures limit the right to privacy, such limitations are consistent with the prohibition on arbitrary interference with privacy as they are directed at a legitimate objective and are reasonable and proportionate to that objective. Further, in streamlining the access route to private information that is held by providers which have ceased operation, the measure aims to improve the protection of the privacy of students affected by provider closures. Students of closed higher education providers will have a single point for access for their academic transcripts, assessment results, grades, and qualifications, without having to approach a range of individuals and entities to which the records may have passed in the absence of TEQSA's role (as is currently the case).

Right to freedom of expression

The Bill engages the right to freedom of opinion and expression as contained in Article 19 of the ICCPR. Amongst other things, Article 19 states that individuals must have the 'freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers'. Under Article 19(3), the right to freedom of expression may be subject to limitations that are necessary to protect the rights or reputations of others, national security, public order, or public health or morals. Limitations must be prescribed by law, pursue a legitimate objective, be rationally connected to the achievement of that objective and a proportionate means of doing so.

The Bill will require consent of the Minister before a person can use an Australian internet domain name containing the word 'university' (or expressions of similar meaning). This measure will, in effect, limit the capacity of individuals to choose domain names in some circumstances where those domain names include the word 'university' or expressions of similar meaning - for example 'uni' where it is intended to mean 'university'. This restriction mirrors similar requirements on the issuing of company and business names containing the word 'university' or derivatives of that term.

The policy intent underpinning this measure is to protect the reputation of Australian higher education institutions by preventing misleading, or deceptive use of the word 'university' in company names, business names and domain names in ways that could undermine the standing or reputation of individual institutions or the higher education sector as a whole. Protecting the use of the word 'university' is one element of Australia's higher education quality arrangements. Restricting the use of the word 'university' in company names, business names and domain names ensures that employers and students can be confident that any institution with the word 'university' in its title meets the relevant quality requirements. It also acts as a consumer protection measure to limit the opportunity for individuals to be misled about the nature and standing of a business or service that claims to have a connection to one or more universities.

In today's online world, internet domain names are effectively the trading names of many businesses and services, many of which are unincorporated and do not seek formal approval of a business or company name.

Under guidelines approved by the Minister, approval may be granted, for example, where the applicant:

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is a university itself or has the approval of a university to use its name - for example in a campus-based club or business; or

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is not a university or a university-related entity with approval to use the university's name, and:

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does not propose to provide education services or information about education services;

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does not purport to operate as a university;

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the proposed name reflects the purpose for which the business is being formed.

A policy to limit the allocation of domain names containing the word 'university' was previously in operation through inclusion of the word 'university' on the reserved list of .auDA, the Government-endorsed industry self-regulatory body for the .au Country Code internet Top Level Domain space. The Bill will provide specific authority to reinstate the policy as a matter of law.

The requirement to seek approval for use of the word 'university' in a domain name is a reasonable, necessary and proportionate response to the need to maintain the integrity and reputation of Australia's higher education system. This is because an authorisation process is the least restrictive means to minimize the likelihood of domain names being misused. The authorisation process is limited and proportionate to the reasonable policy objective of curtailing the misuse of 'university' or analogous words in domain names.

The Bill is compatible with the right to freedom of expression as the limitation will be prescribed by law, pursue a legitimate objective that is rationally connected to the limitation and is a proportionate means of doing so.

Conclusion

Measures in the Bill, which bolster TEQSA's regulatory capabilities, enable amended Threshold Standards, allow TEQSA to specify matters in relation to new research quality benchmarks for providers in the 'Australian University' category, simplify and consolidate tertiary provider categories and assist students to access their records in the event a provider ceases to operate, support and enhance the right to education by improving both the governance arrangements and the functional experience of students entering, and navigating through, the tertiary education system. To the extent that measures contained in the Bill may limit human rights, these limitations are reasonable, necessary, and proportionate to the legitimate policy aims to which those measures are directed.

The Bill is compatible with human rights.