Senate

Revised Explanatory Memorandum

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

Notes on Clauses

Clause 1 - Short title

This clause provides for the Act to be the Higher Education Legislation Amendment (Provider Category Standards and Other Measures) Act 2020.

Clause 2 - Commencement

The table in subclause 2(1) sets out when the Act's provisions will commence. The table provides that:

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sections 1 to 3 and anything in the Act not covered elsewhere in the table commence on the day the Act receives the Royal Assent;

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Part 1 of Schedule 1 - containing the Provider Category Standards-related amendments - commences on a date to be fixed by Proclamation or, if the provisions do not commence within 12 months from the day the Act receives the Royal Assent, the provisions commence the day after the end of that 12 month period;

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Items 20 to 28 and Item 30 of Schedule 1 commence on the day after the Act receives the Royal Assent;

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Item 29 of Schedule 1 commences on the seventh day after the Act receives the Royal Assent;

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Items 1 to 4 of Schedule 2 - commence the day after the Act receives the Royal Assent;

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Item 5 of Schedule 2 commences immediately after the commencement of Items 1 to 4 of Schedule 2. However, the Item does not commence at all if Schedule 1 to the Higher Education Support Amendment (Job-ready Graduates and Supporting Regional and Remote Students) Act 2020 commences on or before the day on which Items 1 to 4 of Schedule 2 commence.

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This clause provides that any legislation that is specified in a schedule is amended or repealed as set out in the applicable items in the schedule and that any other item in a schedule has effect according to its terms.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

COAG           Council of Australian Governments

HESA           Higher Education Support Act 2003

Impact Review           Review of the Impact of the TEQSA Act on the higher education sector undertaken by Deloitte Access Economics and published in 2018

Panel           Higher Education Standards Panel

PCS Review           Review of the higher education Provider Category Standards conducted by Emeritus Professor Peter Coaldrake AO and released in 2019.

TEQSA Act           Tertiary Education Quality and Standards Agency Act 2011

Schedule 1 - Higher Education standards and other amendments

Summary

The amendments in Part 1 of Schedule 1 give effect to:

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recommendations arising from the PCS Review that require a legislative response; and

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an outstanding recommendation from the Impact Review - this is done by removing references to different types of Threshold Standards.

The amendments in Part 2 of Schedule 1 enact a number of other measures intended to strengthen the way the TEQSA Act is administered and TEQSA's regulatory role to:

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include reference to the new 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;

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introduce external merits review of a decision by TEQSA not to change the category in which a provider is registered;

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provide TEQSA with the legislative authority to assume collect and disclose higher education student records from a registered higher education provider in the event the provider ceases operations; and

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require the consent of the Minister to use an Australian Internet domain name that includes the word 'university' or words or expressions with the same or similar meaning that are specified in a legislative instrument. .

Detailed explanation

Part 1 - Higher education standards

Tertiary Education Quality and Standards Agency Act 2011

Item 1

Section 4 of the TEQSA Act is a simplified outline of the TEQSA Act.

Item 1 omits and substitutes that part of the outline which relates to the need for registered higher education providers to have their courses of study accredited before they can provide those courses in connection with regulated higher education awards.

The new wording is similar to the current wording, except that it makes some minor drafting changes and clarifies that some providers (including those registered in the 'Australian University' category) are authorised to self-accredit some or all of their courses of study.

Items 2 to 5

These items amend the definitions contained in section 5 of the TEQSA Act to remove references to different types of Threshold Standards, in line with the outstanding recommendation of the Impact Review, as follows:

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Item 2 repeals and substitutes the definition of Higher Education Standards Framework - the new definition being the Threshold Standards and any other standards made under paragraph 58(1)(b). The capacity for the Minister to make standards in addition to the Threshold Standards, should the need ever arise, is retained.

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Item 3 amends the definition of provider category so that it now means a provider category listed in the Threshold Standards (instead of a provider category listed in the Provider Category Standards). Once the new Threshold Standards come into effect, the provider categories will be described in a separate part of the Threshold Standards, rather than a separately constituted and separately named set of 'Provider Category Standards'.

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Item 4 repeals the following definitions, which are no longer required because the relevant standards will no longer be used, and instead their content will be captured in the Threshold Standards:

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Provider Category Standards

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Provider Course Accreditation Standards

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Provider Registration Standards

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Item 5 repeals and substitutes the definition of Threshold Standards - the new definition being the Threshold Standards made under paragraph 58(1)(a), The new singular set of Threshold Standards will replace the current four separate types of Threshold Standards - see also amendments to subsection 58(1) made by ( Item 14 ).

Items 6 to 9

Items 6 to 9 make minor changes to the language used in various provisions of the TEQSA Act to reflect the introduction of the new 'Australian University' and 'Overseas University' provider categories.

Item 6 amends paragraphs 19(2)(b) and 20(2)(b) to omit "permits the use of the word 'university'" and, substitutes it with: "is either the 'Australian University' or 'Overseas University' provider category, to reflect the change in provider categories under the Threshold Standards.

Section 33 of the TEQSA Act concerns decisions that TEQSA proposes to make about the ability of a registered higher education provider, that is registered in a provider category that permits the use of the word 'university', to self-accredit its courses. Item 7 amends paragraph 33(1)(a) to omit reference to "permits the use of the word 'university':" and substitutes it with: "either the 'Australian University' or 'Overseas University' provider category", to reflect the change in provider categories under the Threshold Standards.

Section 36 of the TEQSA Act concerns decisions by TEQSA on whether to renew the registration of a registered higher education provider. Under subsections 36(5) and 36(6), if TEQSA proposes to reject an application for renewal of registration made by a provider that is registered in a provider category that permits the use of the word 'university', then TEQSA must give the provider and the relevant state or territory minister for higher education notice of the proposed decision and allow them the opportunity to provide representations about the matter. Item 8 amends paragraph 36(6)(b) to omit reference to permitting the use of the word 'university' and, instead, substitutes reference to either the 'Australian University' or 'Overseas University' provider category to reflect the change in provider categories under the Threshold Standards.

Section 39 of the TEQSA Act concerns consultations that TEQSA must undertake when considering whether to make a decision under subsection 38(1) to change the category in which a provider is registered. Under paragraph 39(1)(b), if TEQSA proposes to make a decision under subsection 38(1) to change a provider's category of registration and the provider is registered in a provider category that permits the use of the word 'university' - then TEQSA must give the provider and the relevant state or territory minister for higher education notice of the proposed decision and allow them the opportunity to provide representations about the matter.

Item 9 amends paragraph 39(1)(b) to omit reference to permitting the use of the word 'university' and, instead, substitutes reference to either the 'Australian University' or 'Overseas University' provider category.

Items 10 and 11

Section 45 of the TEQSA Act concerns who can accredit courses of study. Subsection 45(1) provides that registered higher education providers in the Australian university provider category that are established by or under, or recognised by, a Commonwealth, state or territory law, or are registered as companies under Part 2A.2 of the Corporations Act 2001, are authorised to self-accredit their courses that lead to a higher education award they offer or confer.

Item 10 replaces the words "Australian university provider category" in paragraph 45(1)(a) with the words "'Australian University' provider category", to better reflect the way the new provider category is expressed in the Threshold Standards.

Item 11 inserts a new subsection 45(2A) which provides that subsection 45(1) does not apply to registered higher education providers in the 'Australian University' category if they have a specialised focus in accordance with the Threshold Standards. This is necessary as, in future, the 'Australian University' category will encompass providers that offer courses across a broad curriculum in several fields of education, as well as providers that offer a more limited offering in just one or two fields of education. The latter will not have automatic authority to self-accredit courses outside of their recognised specialised fields of education. They would either need to seek accreditation by TEQSA under section 46 for any courses they wished to offer in other fields of education or, alternatively, seek authority to self-accredit courses in those additional fields of education under section 41.

Items 12, 13, 16 and 17

Items 12, 13, 16 and 17 make minor amendments to paragraph 49(1)(b), subsection 56(1), section 61 and paragraph 98(d) of the TEQSA Act to omit 'Provider Course Accreditation Standards' and substitute 'Threshold Standards', as the Provider Course Accreditation Standards are being replaced with the Threshold Standards.

Item 14

Subsection 58(1) of the TEQSA Act provides that the Minister may, by legislative instrument, make a number of standards that together comprise the Higher Education Standards Framework. These are: the Provider Registration Standards; the Provider Category Standards; the Provider Course Accreditation Standards; the Qualification Standards (all four of which Note 1 explains make up the Threshold Standards); as well as other standards against which the quality of higher education can be assessed.

Item 14 repeals and substitutes subsection 58(1). New subsection 58(1) provides that the Minister may, by legislative instrument, make standards that together comprise the Higher Education Standards Framework. These are the Threshold Standards and other standards against which the quality of higher education can be assessed. This change streamlines the standards providers are expected to satisfy, in line with an outstanding recommendation of the Impact Review. A Note draws attention to subsection 33(3) of the Acts Interpretation Act 1901 which clarifies that the power to make the standards includes the power to vary or revoke them.

Item 15

Item 15 inserts new section 59A. New subsection 59A(1) provides that, if TEQSA is considering the Threshold Standards, to the extent they relate to research, either in relation to:

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a regulated entity that has applied to TEQSA for registration within the "Australian University" provider category;

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a registered higher education provider that has applied under section 38 to change to the "Australian University" provider category; or

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a registered higher education provider that is in the "Australian University" provider category (for example, in relation to deciding whether to renew the registration of a registered higher education provider as an "Australian University" under section 36 of the TEQSA Act, or in relation to compliance assessments undertaken under section 59 of the TEQSA Act);

then TEQSA must have regard to the quality of the research undertaken by the entity or provider.

This reflects the PCS Review's recommendation that new research quality benchmarks be included in the Threshold Standards for providers in the 'Australian University' category. While the current Provider Category Standards require universities to undertake "research that leads to the creation of new knowledge and original creative endeavour", they do not specify how this is to be measured or assessed.

New subsection 59A(2) provides that, in having regard to the research undertaken by the entity or provider under new subsection 59A(1), TEQSA must have regard to the matters determined in an instrument made under new subsection 59A(7) (if such an instrument is in force).

New subsection 59A(3) specifies that new subsection 59A(2) does not limit the matters to which TEQSA may have regard (in considering the quality of research undertaken by an entity or provider under subsection (1)).

New subsection 59A(4) provides that TEQSA may, in writing, determine matters relating to the quality of research for the purposes of new section 59A.

New subsection 59A(5) provides that a determination made under new subsection 59A(4) has no effect unless the Minister approves it in writing.

New subsection 59A(6) specifies that TEQSA must give the Minister such information as the Minister reasonably requires for the purposes of approving the determination.

New subsection 59A(7) provides that a determination under subsection 59A(4) made by TEQSA and approved by the Minister is a legislative instrument made by the Minister on the day on which the determination is approved.

Item 18

Section 108 provides for an offence and a civil penalty for a regulated entity that uses the word 'university' in representations about itself or its operations concerning courses of study and higher education awards - when the entity is not registered in a 'university' category.

Item 18 amends paragraphs 108(1)(b) and 108(2)(b) to omit the words "a provider category that permits the use of the word 'university'" and substitutes "the 'Australian University' or 'Overseas University' provider category", to better reflect the way the new provider category is expressed.

Neither the offence nor civil penalty will apply to providers in the new 'University College' category as long as they represent themselves as a University College, rather than a University. A requirement within the new Threshold Standards will mandate that, while a University College category provider is welcome to use the word 'university' in its institutional branding, it must only do so by using the full category name 'university college' and not just the word 'university' in isolation.

Item 19 is an application provision which provides as follows:

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the amendments made to paragraphs 19(2)(b) and 20(2)(b) of the TEQSA Act (see Item 6 ) apply to applications made on or after the commencement of Item 19;

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the amendments made to paragraphs 33(1)(a), 36(6)(b) and 39(1)(b) of the TEQSA Act (see Items 7, 8 and 9 ) apply to decisions made on or after the commencement of Item 19;

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the amendment that inserts subsection 45(2A) of the TEQSA Act (see Item 11 ) applies in relation to working out whether a registered higher education provider is authorised to self-accredit a course of study on or after the commencement of Item 19;

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the amendment made to paragraph 49(1)(b) of the TEQSA Act (see Item 12 ) applies to applications for accreditation of courses of study made on or after the commencement of Item 19, or that were pending immediately before that commencement;

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the amendment made to subsection 56(1) of the TEQSA Act (see Item 13 ) applies to applications for renewal made on or after the commencement of Item 19, or that were pending immediately before that commencement;

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the amendment made to insert subsection 59A(1) (see Item 15 ) of the TEQSA Act applies in relation to the consideration of the Threshold Standards on or after the commencement of Item 19, whether the research was undertaken before, on or after that commencement;

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the amendment made to paragraph 98(d) of the TEQSA Act (see Item 17 ) applies in relation to a failure to ensure that an accredited course in relation to a provider meets the Threshold Standards that occurred on or after the commencement of Item 19;

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Subdivision A of Division 1 of Part 7 of the TEQSA Act (Administrative sanctions), as in force immediately before the commencement of Item 19, continues to apply on or after that commencement in relation to a failure referred to in paragraph 98(d) (i.e. a failure to ensure that an accredited course in relation to a provider meets the Provider Course Accreditation Standards) that occurred before the commencement of Item 19; and

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the amendments made to section 108 of the TEQSA Act (see Item 18 ) apply to uses of the word 'university' on or after the commencement of Item 19.

Part 2 - Other amendments

Tertiary Education Quality and Standards Agency Act 2011

Item 20

Item 20 expands the definition of higher education award in section 5 of the TEQSA Act by adding in the words 'undergraduate certificate' after 'bachelor degree'. This reflects COAG Education and Skills Councils' agreement to add 'Undergraduate Certificate' to the Australian Qualifications Framework as a new higher education qualification type from May 2020 to December 2021, unless this period is extended by the Councils.

Item 21

Item 21 inserts a definition of higher education student records into section 5 of the TEQSA Act, as it is used in new Subdivision C of Division 2 of Part 10 (see Item 28 ). This definition covers documents or objects in any form (including any electronic form):

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held by an entity that is a registered higher education provider, because of the document's or object's connection with a person who is or was enrolled in an accredited course provided by the entity

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held by an entity that is a former registered higher education provider at a time when it was a registered higher education provider, because of the document's or object's connection with a person who was enrolled in an accredited course provided by the entity.

Item 22

Subsection 37A(1) of the TEQSA Act currently provides that TEQSA may extend the period of a registered higher education provider's registration, so long as the period has not been previously extended by TEQSA. Item 22 removes the words 'so long as the period has not been previously extended by TEQSA'. This will enable TEQSA to extend the period of registration more than once. Having this ability may be necessary to manage regulatory activity during the COVID-19 pandemic. It will also offer TEQSA greater flexibility to manage provider registrations into the future, particularly for low risk high quality providers that may have had a previous period of extension - including a relatively short extension period that might have been granted in response to the pandemic.

Items 23 and 24

Under paragraph 38(1)(b) of the TEQSA Act, TEQSA may change the provider category in which a registered higher education provider is registered on application by the provider (under paragraph 38(1)(a), TEQSA may also change the provider category on its own initiative).

Item 23 inserts a new subsection 38(1A) into the TEQSA Act which makes it clear that, where a provider has made an application under paragraph 38(1)(b) application to change its category of registration, TEQSA may decide not to change that category. This addition will enable decisions not to change a provider category to be included in the list of decisions that may be reviewed by the Administrative Appeals Tribunal - see Item 27 .

Subsection 38(2) provides that, before it makes a decision under subsection 38(1), it must have regard to the Threshold Standards. Item 24 makes a consequential amendment to subsection 38(2) to provide that this requirement to have regard to the Threshold Standards also applies to a decision under the new subsection 38(1A).

Item 25

Section 40 of the TEQSA Act provides that TEQSA must, within 40 days of making a subsection 38(1) decision, give the registered higher education provider written notice of its decision and reasons for the decision. Item 25 amends section 40 to extend this requirement to decisions made under new subsection 38(1A) (see Item 23 ).

Item 26

Subsection 57A(1) of the TEQSA Act currently provides that TEQSA may extend the period of accreditation of a course of study, so long as the period has not been previously extended by TEQSA. Item 26 removes the words 'so long as the period has not been previously extended by TEQSA'. This will enable TEQSA to extend the period of accreditation more than once, just as Item 22 provides this capacity in relation to extensions of provider registration and for the same reasons.

Item 27

Section 183 of the TEQSA Act contains a table setting out those decisions of TEQSA that are reviewable decisions that may be reviewed by the Administrative Appeals Tribunal following a process of internal review by TEQSA. Item 27 adds a new reviewable decision category to that table - that is, decisions under section 38 not to change the category in which a registered higher education provider is registered (see Item 23 ).

Item 28

Division 2 of Part 10 of the TEQSA Act concerns information management and consists of the following subdivisions:

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Subdivision A (restrictions on the disclosure or use of information)

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Subdivision B (information sharing).

Item 28 adds a new Subdivision C (student records), consisting of the following new sections:

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section 197AA (higher education student records to be provided to TEQSA)

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section 197AB (TEQSA may request higher education student records)

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section 197AC (provision of higher education student records to another registered higher education provider)

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section 197AD (TEQSA's management of higher education student records)

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section 197AE (compensation)

These provisions will enable TEQSA to take custody of the academic records of a higher education provider that closes, ensuring that past students of the provider will have guaranteed and simpler access to their records into the future. Such records are often needed by a student to facilitate their enrolment in a course with another provider, or to verify the units undertaken or qualifications awarded for an employer. The provisions in sections 197AA to 197AE are modelled on similar authority provided to the Australian Skills Quality Authority to assist vocational education and training students in sections 211 to 214 of the National Vocational Education and Training Regulator Act 2011 ( NVETR Act ).

While not explicitly stated in the provisions, students will have access to their own personal information held by TEQSA by virtue of their rights under the Privacy Act 1988 and the APPs under that act, to which TEQSA, as an APP entity, is subject. APP 12 (access to personal information) requires an APP entity that holds personal information about an individual to give the individual access to that information on request. APP 12 also sets out minimum access requirements, including the time period for responding to an access request, how access is to be given, and that a written notice, including the reasons for the refusal, must be given to the individual if access is refused.

Section 197AA (higher education student records to be provided to TEQSA)

Subsection 197AA(1) provides that if:

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an entity is a registered higher education provider has effectively ceased to operate; or

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an entity's registration as a registered higher education provider is cancelled.

then TEQSA may, by written notice given to a person who is, or was, an executive officer of the entity, require the person to provide to TEQSA with a copy of the higher education student records (see Item 21 ) relating to an entity as are specified in the notice, within the period specified in the notice.

Subsection 197AA(2) provides that the period specified in the notice must be at least 14 days after the notice is given.

Subsection 197AA(3) provides that a person commits an offence (subject to a penalty of 150 penalty units), where that person possesses or controls higher education student records specified in a notice issued to them under subsection 197AA(1), and fails to comply with that notice (the value of a penalty unit is currently $222).

Subsection 197AA(4) is a civil penalty (of up to 300 penalty units) provision, which is contravened where a person who possesses or controls higher education student records specified in a notice issued to them under subsection 197AA(1), fails to comply with that notice.

These penalties are consistent with 'A guide to framing Commonwealth offences, infringement notices and enforcement powers', published by the Attorney-General's Department, as they are consistent with existing similar offences. In particular, these penalties are consistent with subsections 211(3) and 211(4) of the National Vocational Education and Training Regulator Act 2011.

These penalties are necessary to ensure compliance with the notices provided by TEQSA, so that students are able to access their student records and continue their education or gain employment. The size of the penalties is reasonable and proportionate, and reflect the potential harm to students and the reputation of the Australian higher education system of non-compliance. The penalties are also consistent with comparable offences. For example, the penalties created by this section are the same as those applicable to an executive officer or high managerial agent of a vocational education and training provider for a comparable offence under section 211 of the NVETR Act.

Section 197AB (TEQSA may request higher education student records)

Section 197AB entitles TEQSA to issue a notice in writing to a person (where that person is not, and was not, an executive officer of the entity) it considers may hold higher education student records relating to an entity, requesting the person provide a copy of those records specified in the notice to TEQSA where:

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an entity that is a registered higher education provider has effectively ceased to operate; or

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an entity's registration as a registered higher education provider is cancelled

This section will enable TEQSA to request copies of student records that may be held by someone other than an executive officer or former executive officer of a provider that has ceased operating. This is necessary as, once a provider closes, custody of the former provider's assets, including historical student records and data may pass to a range of other individuals or entities, including liquidators or relatives.

Section 197AC (transfer of higher education student records to another registered higher education provider)

Section 197AC facilitates the transfer of higher education student records held by one registered higher education provider to be transferred to another registered higher education provider, where a student transfers providers.

Section 197AC provides that if a person (i.e. student) is enrolled in an accredited course provided by an entity that is a (first) registered higher education provider and then that person transfers their enrolment to a different (second) registered higher education provider, then:

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the person may request the first registered higher education provider provide a copy of the higher education student records the first provider holds about the person to the second registered higher education provider; or

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the second registered higher education provider may, in writing, request the first registered higher education provider provide a copy of the higher education student records the first provider holds about the person to the second registered higher education provider.

Section 197AD (TEQSA's management of higher education student records)

Section 197AD facilitates TEQSA providing a copy of relevant higher education student records to a registered higher education provider where a student requests this to occur if:

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the person to whom the record relates has enrolled, or is seeking to enrol, in an accredited course with the provider and gives TEQSA a written request asking it to provide the record to the provider; or

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with the consent of the person to whom the record relates, the provider gives TEQSA a written request asking it to provide a copy of the record to the provider because the person has enrolled, or is seeking to enrol, in one of the accredited courses it provides.

Section 197AE (compensation)

Subsection 197AE(1) provides that, if the operation of section 197AA would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person, within the meaning of section 51(xxxi) of the Constitution. This is included to remove any doubt about the validity of new section 197AA.

Subsection 197AE(2) specifies that, if the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

Item 29

Item 29 inserts a new section 204A into the TEQSA Act.

New subsection 204A(1) provides that a person must not use a domain name with either:

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the word 'university'; or

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a word or expression that has the same or a similar meaning to the word 'university' and that is determined in an instrument under new subsection 204A(3);

in the domain name, and where that domain name includes an Australian top-level domain, unless there is an approval in force under new subsection 204A(4) in relation to the person's use of that domain name.

This means that if a person uses a domain name without approval, the licensor can prevent that person from continuing to use that domain name. It also means that if a domain name is transferred to a new person, that person would need to seek approval before using the domain name.

New subsection 204A(2) specifies that subsection 204A(1) applies in relation to a person's use of a domain name on or after the commencement of section 204A if the licence for the use of that domain name was issued on or after the commencement and no licence for the use of that domain name had been issued before that commencement to the licensee of the licence referred to in paragraph (a). This means that holders of an existing domain name of a kind specified in subsection 204A(1) (such as universities who are renewing their existing domain name) will not be required to seek authority to continue using that domain name.

New subsection 204A(3) provides that the Minister may, by legislative instrument, determine words or expressions for the purposes of subparagraph (1)(a)(ii). This will allow the Minister to provide clarity to stakeholders as to the words or expressions that are to be considered similar to university. It is anticipated that common expressions that are used to refer to university, such as "uni", may be specified in the instrument. Examples could include "uni", where this is intended to mean "university", or foreign translations of the word "university". It would also allow the Minister to respond flexibly to new words or expressions that are similar to university that may be used improperly, as they emerge.

New subsection 204A(4) states that the Minister may, in writing, approve a person's use of a specified domain name. It further states that the Minister may give an approval on the Minister's own initiative or on application. This accounts for the variety of ways that Ministerial approval may be sought.

New subsection 204A(5) provides that the Minister must give a copy of an approval granted under new subsection 204A(4) to the person and the licensor that issues licenses for the use of a domain name to which paragraphs (1)(a) and (b) apply. The intention of this provision is that a copy of an approval will be given both to the person who seeks to use the domain name and to the entity to which that person has applied, or will be applying to, for the licence to use the relevant domain name.

New subsection 204A(6) specifies that an approval under new subsection 204A(4) comes into effect at the time it is given.

New subsection 204A(7) specifies that, if the Minister refuses to give the approval, the Minister must give written notice of the refusal and of the reasons for the refusal to the person and the licensor that issues licenses for the use of a domain name to which paragraphs (1)(a) and (b) apply. The intention of this provision is that a copy of a refusal to give approval, and statement of reasons for the refusal, will be given both to the person who seeks to use the domain name and to the entity to which that person, has applied, or will be applying, to for the licence to use the relevant domain name. This will ensure the licensor has the information it needs to prevent the use of the domain name if the Minister has not approved its use.

New subsection 204A(8) provides that, in deciding whether or not to give an approval under subsection 204A(4), the Minister must have regard to:

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whether the licensee is a registered higher education provider; and

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the matters determined in an instrument under subsection 204A(10).

This will allow the Minister to specify additional matters that will be taken into account when considering whether to grant approval. This could include, for example, whether the person already has approval in place for a company or business name registered in Australia or overseas, or has a trademark over words or expressions that are included in a proposed domain name.

New subsection 204A(9) states that subsection 204A(8) does not limit the matters to which the Minister may have regard.

New subsection 204A(10) specifies that the Minister must, by legislative instrument, determine matters for the purposes of paragraph (8)(b).

New subsection 204A(11) provides that the Minister may, in writing, request the licensor that issues licences for the use of a domain name to which paragraphs (1)(a) and (b) apply to give the Minister the following details in relation to the period specified in the request:

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the name of each person to whom such a licence has been issued;

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the domain name covered by the licence; and

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contact details for the person to the extent known by the licensor.

This will allow the Minister to request only the information necessary to assess whether to grant an approval to a particular person's use of a domain name, or to seek further information from the applicant if necessary. This disclosure may include personal information (for example the contact details of the person who seeks to use the domain name), however, the intention is that any disclosure will be restricted to information that is reasonable and proportionate to the policy objective or preventing misuse of the word university or words or expressions with the same or similar meaning in domain names.

New subsection 204A(12) states that the licensor must comply with a request under new subsection 204A(11).

New subsection 204A(13) provides that the Minister may, in writing, delegate the Minister's functions and powers under this section (except new subsections 204A(3) and (10)) as specified in the subsection. This will allow delegates in the Department of Education, Skills and Employment to make approval decisions, for example.

New subsection 204A(14) clarifies that an approval under subsection 204A(4) is not a legislative instrument, as each approval will be an administrative, rather than legislative, decision.

Item 30

Item 30 is an application provision which provides as follows:

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the amendment made to section 37A of the TEQSA Act (see Item 22 ) applies to an extension of a higher education provider's registration given on or after the commencement of Item 30, whether the registration occurred before, on or after that commencement;

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the amendments made to sections 38, 40 and 183 of the TEQSA Act (see Items 23, 24, 25 and 27 ) apply to decisions about not changing provider registration category made on or after the commencement of Item 30, whether an application to change provider registration category was made before, on or after that commencement;

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the amendment made to section 57A of the TEQSA Act (see Item 26 ) applies to an extension of a period of accreditation of a course of study given on or after the commencement of Item 30, whether the accreditation occurred before, on or after that commencement;

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new section 197AA of the TEQSA Act (see Item 28 ) concerning providing copies of higher education student records to TEQSA applies in relation to:

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a registered higher education provider that effectively ceases to operate on or after the commencement of Item 30

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the cancellation of a registered higher education provider's registration on or after the commencement of Item 30;

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new section 197AB of the TEQSA Act (see Item 28 ) concerning TEQSA requesting copies of higher education student records applies in relation to:

o

a registered higher education provider that effectively ceases to operate on or after the commencement of Item 30

o

the cancellation of a registered higher education provider's registration before, on or after the commencement of Item 30;

•

new paragraph 197AC(b) of the TEQSA Act (see Item 28 ) concerning the provision of copies of higher education student records to another registered higher education provider, applies where the person to whom the records relate transfers to the new (second) provider on or after the commencement of Item 30, irrespective of whether the person's enrolment with the original (first) provider occurred before, on or after that commencement; and

Schedule 2 - Indigenous student assistance grants

Summary

Schedule 2 to the Bill amends certain sections in Part 2-2A (Indigenous student assistance grants) and other parts of HESA to replace references to 'Indigenous students' with 'Indigenous persons', and to clarify the purpose for which grants under Part 2-2A may be made to higher education providers. These amendments confirm the existing arrangements provided for by Part 2-2A of HESA that providers can use Indigenous student assistance grants to assist prospective Indigenous students as well as existing Indigenous students.

Detailed explanation

Higher Education Support Act 2003

Items 1 and 2 - Paragraph 3-5(1)(aa), Sections 8-1 and 38-1

Items 1 and 2 amend paragraph 3-5(1)(aa) and sections 8-1 and 38-1 of HESA to replace references to 'Indigenous students' with references to 'Indigenous persons.'

These are consequential amendments due to items 3 and 4 .

Item 3 - Paragraph 38-10(1)(a)

Item 3 amends paragraph 38-10(1)(a) of HESA to replace the reference to 'Indigenous students' with the words 'Indigenous persons (who may or may not be students)'. This amendment confirms that Table A and Table B providers are eligible for Indigenous student assistance grants for the purpose of assisting prospective Indigenous students as well as existing Indigenous students undertaking higher education.

Item 4 - Paragraph 38-10(1)(b)

Item 4 replaces paragraph 38-10(1)(b) of HESA to confirm that Table A and Table B providers are eligible for Indigenous student assistance grants for the purposes of increasing the number of:

•

Indigenous persons enrolling in courses leading to higher education awards; and

•

students who are Indigenous persons progressing in and completing courses leading to higher education awards.

Examples of activities that are consistent with this purpose can be found in the explanatory memorandum to the Higher Education Support Legislation Amendment (2016 Measures No. 1) Bill 2016.

Item 5 - Subclause 1(1) of Schedule 1

Item 5 inserts a new definition for Indigenous person into Schedule 1 of HESA, being the same definition as in the Indigenous Education (Targeted Assistance) Act 2000. Under that Act, 'Indigenous person' means:

(a)

a member of the Aboriginal race of Australia; or

(b)

a descendant of the Indigenous inhabitants of the Torres Strait Islands.

ATTACHMENT A

Regulation Impact Statement

What's in a Name? Review of the Higher Education Provider Category Standards
Regulation impact statement