House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Education, Science and Training, the Honourable Julie Bishop MP)

Schedule 1 - Approval and accreditation of higher education providers and entities

Higher Education Support Act 2003

The following amendments are required to give effect to the revised National Protocols for Higher Education Approval Processes (the National Protocols) which were agreed by the Ministerial Council on Education, Employment, Training and Youth Affairs (MCEETYA) in July 2006. The National Protocols were first agreed by MCEETYA in 2000, and regulate the recognition of new universities, the operation of overseas universities in Australia and the accreditation of courses offered by providers of higher education. The Commonwealth, along with all the States and Territories have undertaken to amend their legislation so that the National Protocols take effect from the end of 2007.

Key changes in the National Protocols are:

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provision for a wider range of universities including specialist institutions conducting teaching and research in one or two fields of study only and university colleges in the form of new universities undertaking teaching and research in a limited number of fields during an establishment phase;

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a pathway for institutions other than universities to become authorised to accredit their own courses ("self-accrediting") where they demonstrate a strong track record in quality assurance and reaccreditation; and

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application of the Protocols to both new and existing higher education institutions, with compliance to be assessed through the standard quality assurance processes.

This schedule implements these new arrangements in relation to the approval and accreditation of higher education entities in the External Territories (Chapter 6) as well as those higher education entities that are higher education providers under Part 2-1.

Items 1, 2 and 3 - Subsection 3-5(2), sections 8-1 and 13-1

Items 1, 2 and 3 make technical amendments to reflect the changes in terminology introduced by the amendments to section 16-25 made by items 5 and 6. Items 1 and 2 delete the words "self-accrediting providers or non self-accrediting providers" from subsection 3-5(2) and section 8-1 respectively and replaces those words with the words "self-accrediting entities or non self-accrediting entities". Item 3 deletes the words "self-accrediting providers" from section 13-1 and replaces those words with the words "self-accrediting entities".

Item 4 - Subsection 16-25(1)

Item 4 is a technical amendment which deletes "(1)" from section 16-25, to reflect the repeal of subsections 16-25(2), (3) and (4) made by item 7.

Item 5 - Paragraph 16-25(1)(b)

Subdivision 16-C sets out how bodies are approved as higher education providers. Section 16-25 deals with the circumstances in which the Minister may approve a body corporate as a higher education provider.

Item 5 deletes and replaces paragraph 16-25(1)(b). The effect of this amendment is that the Minister may approve a body corporate as a higher education provider if the body satisfies the other conditions in section 16-25 and the body is:

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an Australian university; or

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a self-accrediting entity; or

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a non self-accrediting entity.

Each of the terms listed above in the dot points above are separately defined in the dictionary at Schedule 1 to the Act. The terms reflect the types of institutions which government accreditation authorities can approve to offer higher education awards under the National Protocols.

Item 6 - Paragraph 16-25(1)(d)

Item 6 repeals paragraph 16-25(1)(d) and replaces it with new paragraphs 16-25(d), (da), (db) and (dc). The changes also incorporate the provisions of existing section 16-35 which is being repealed at item 8. The effect of this amendment is that the Minister may approve a body corporate as a higher education provider if the body satisfies the other conditions in section 16-25 and:

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the body is in a State or Territory that the Minister is satisfied has legislation that complies with the National Protocols; and

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the body offers at least one course of study that leads to a higher education award; and

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if the body is a self-accrediting entity the body is authorised by a government accreditation authority to accredit that course, or the course is an accredited course; and

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if the body is a non self-accrediting entity-the course is an accredited course.

Items 7 and 8 - Subsections 16-25(2), (3) and (4) and section 16-35

Items 7 and 8 delete subsections 16-25(2), 16-25(3) and 16-25(4) and section 16-35. The work formerly done by those provisions has been incorporated into the amendments made by items 5 and 6 of Schedule 1.

Item 9 - Paragraphs 19-15(2)(a) and (b)

Subdivision 19-C sets out the quality requirements that higher education providers must comply with. Section 19-15 specifies how a provider is to maintain quality.

Item 9 repeals paragraphs 19-15(2)(a) and (b) and replaces them with proposed new paragraphs 19-15(2)(a), (b) and (c). Subsection 19-15(2) now provides that the Minister must not determine that a higher education provider meets an appropriate level of quality for an Australian higher education provider, unless the Minister is satisfied that:

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the provider meets the requirements of section 19-20 (providers must comply with the National Protocols); and

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if the provider is not a Table A provider-the provider meets the requirements of section 19-25 (quality assurance requirements for providers other than Table A providers); and

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if the provider is a Table A provider-the provider meets the requirements of section 19-27 (quality assurance requirements for Table A providers).

The effect of this amendment is to give effect to the requirement in the National Protocols that all providers must comply with the National Protocols and the relevant quality assurance requirements (depending on whether the provider is a Table A provider or another provider).

Item 10 - Section 19-20

Section 19-20 currently requires providers (other than Table A providers) to comply with the National Protocols. Item 10 amends section 19-20 by deleting the words "(other than a Table A provider)". This has the effect of requiring all providers to comply with the National Protocols.

A note at the end of item 10 clarifies that the heading to section 19-20 is altered by deleting the words "(other than Table A provider)".

Item 11 - Paragraph 19-20(a)

Item 11 repeals paragraph 19-20(a) and replaces it with proposed new paragraph 19-20(a). The effect of this amendment is to require a higher education provider to be assessed, by a government accreditation authority, which is defined as being listed on the Australian Qualifications Framework Register, as meeting the requirements set out in the National Protocols and the other requirements listed at paragraphs 19-20(b) and (c).

The intention of this amendment is to reflect the changes to the National Protocols.

Item 12 - Paragraph 19-20(b)

Item 12 is a technical amendment which deletes the words "listed on the Australian Qualifications Framework Register" from paragraph 19-20(b) to reflect the fact that the definition of a government accreditation authority will indicate it must be listed on the Australian Qualifications Framework Register.

Item 13 - After section 19-75

Item 13 inserts proposed new section 19-77 after section 19-75. Proposed new section 19-77 requires a provider to notify the Minister of any event affecting:

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the provider; or

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a related body corporate of the provider;

that relates to:

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the provider's authority to accredit courses of study leading to higher education awards; or

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the accreditation by a government accreditation authority, of such courses offered by the provider.

Item 14 - Paragraph 22-7(b)

Item 14 is a technical amendment which replaces reference to paragraph "16-25(1)(aa)" with a reference to paragraph "16-25(aa)", as a consequence of amendments made by items 4 and 7 of Schedule 1.

Items 15, 16 and 51 - Paragraphs 22-10(1)(a), 22-10(1)(b) and Clause 1 of Schedule 1

The National Protocols define 'Australian university' as distinct from use of the more general term 'university' which may refer to both Australian and/or overseas universities.

Items 15 and 16 are technical amendments to reflect changes to the definitions in Clause 1 of Schedule 1 to the Act made by items 51 and 62. Items 15 and 16 delete the words "a university" and replace those words with the words "an Australian university".

Two notes are inserted at the end of item 15 to assist the readers. Note 1 clarifies that the heading to section 22-10 is replaced by the heading "Revocation of approval if status or accreditation changes". Note 2 clarifies that the heading to subsection 22-10(1) is replaced by the heading "Bodies that cease to be Australian universities".

Item 51 inserts a new definition of Australian University into Clause 1 of Schedule 1 to the Act.

Items 17, 18, 20 and 21 - Paragraphs 22-10(2)(a), 22-10(2)(b), 22-10(3)(a) and 22-10(3)(b)

Items 17, 18, 20 and 21 are technical amendments made necessary by items 5 and 6 of Schedule 1. Items 17 and 20 delete the word "provider" (first occurring) and replace the word with "entity". Items 18 and 21 delete the word "provider" and replace the word with "entity".

A note at then end of item 17 is inserted to assist the reader and clarifies that the heading to subsection 22-10(2) is replaced by the heading "Bodies that cease to be self-accrediting entities".

A note at the end of item 20 is inserted to assist the reader and clarifies that the heading to subsection 22-10(3) is replaced by the heading "Bodies that cease to be non self-accrediting entities".

Item 19 - After subsection 22-10(2)

Currently section 22-10 deals with revocation of approval as a provider if the body ceases to be a university or other accredited provider. Item 19 inserts proposed new subsection 22-10(2A) which provides that the Minister may revoke a body's approval as a higher education provider if:

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the body was a self-accrediting entity at the last time the body became a higher education provider; and

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the body is no longer authorised by a government accreditation authority to accredit a course of study that the body was authorised to accredit at that time; and

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the Minister complies with the requirements of section 22-20 (the process for revoking approval as a provider for loss of status or a breach).

This amendment provides an additional ground on which the Minister may revoke a body's approval if the body was a self accrediting entity. While 22-10 (2) provides for revocation of approval if the entity loses all self-accrediting authority, 22-10 (2A) provides for revocation if the entity loses self-accrediting authority for a course, but retains self-accrediting authority for some other courses.

Item 22 - At the end of section 22-10

Section 22-10 deals with the revocation of approval as a provider if the body ceases to be a university or other accredited provider. Item 22 inserts proposed new subsection 22-10(4) which provides that the Minister may revoke a body's approval as a higher education provider if:

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the body was a self-accrediting entity or a non self-accrediting entity at the last time the body became a higher education provider; and

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a course of study offered by the body that was an accredited course ceases to be an accredited course; and

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the Minister complies with the requirements of section 22-20 (the process for revoking approval as a provider for loss of status or a breach).

This amendment provides a new ground on which the Minister may revoke a body's approval if the body offers courses that cease to be accredited courses.

Item 23 - Paragraph 104-10(1)(b)

Section 104-10 deals with the course requirements for FEE-HELP assistance for a unit of study.

Item 23 repeals and replaces paragraph 104-10(1)(b). Section 104-10 now provides that the course requirements for FEE-HELP assistance for a unit of study include the requirement at paragraph 104-10(1)(a) and that if the unit is being undertaken as part of a course of study with a higher education provider and the course is not a course that the provider is authorised by a government accreditation authority to accredit-the course is an accredited course.

The effect of this provision is that the course must be an accredited course wherever the provider is not authorised by a government accreditation authority to accredit the course itself. The changes to the National Protocols mean that some self-accrediting entities will have limits on their self-accrediting authority and may offer courses outside these limits that need to be accredited by a government accreditation authority.

Item 24 - Section 206-1 (table items 5 to 10)

Division 206 sets out which decisions are subject to review. Item 24 deletes table items 5 to 10 at section 206-1 and replaces them with proposed new table item 5.

The effect of this amendment is to set out in summary the decisions which are reviewable under Division 225 and that the decision maker is the Minister. The amendment clarifies that a decision under section 225-25 (the fees that may be set by the Higher Education in External Territories Guidelines) are not reviewable. Decisions made under section 225-25 were not previously reviewable.

Item 25 - Section 217-1

Item 25 deletes and replaces the information box at section 217-1 which provides an explanation on what Chapter 6 is about. Chapter 6 is about the provision of higher education in the external territories.

Item 26 - Section 222-1

Item 26 deletes and replaces the information box at section 222-1 which provides an explanation on what Part 6-1 is about. Part 6-1 is about the approval as self-accrediting entities or for the accreditation of courses of study in the external territories. These changes reflect changes in the National Protocols for the approval to operate as a higher education entity and for the accreditation of courses.

Item 27 - Subsection 225-1(1)

Section 225-1 deals with applications for approval and accreditation in the external territories.

Item 27 repeals and replaces subsection 225-1(1). Proposed new subsection 225-1(1) provides that a person (other than a natural person) who wishes to operate in an external Territory as a university or other provider of courses of study leading to higher education awards, may apply in writing to the Minister for any of the following:

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approval to operate as a university in relation to that Territory;

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approval to operate as a self-accrediting entity in relation to that Territory;

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approval to operate as a non self-accrediting entity in relation to that Territory; and

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accreditation, in relation to that Territory, of courses of study leading to higher education awards that the person proposes to offer in that Territory and is not authorised by a government accreditation authority to accredit.

The effect of this amendment is that a person can apply to the Minister in writing for approval to operate as a university, self-accrediting entity or non-self-accrediting entity and for accreditation. This reflects the different types of higher education entities which can be approved to operate by government accreditation authorities under the National Protocols.

A note at the end of subsection 225-(1) is inserted to assist the reader by referring the reader to Division 228 which contains offences for persons who operate as a university or other provider, offer higher education awards or describe themselves as universities, in an external Territory, without approval or accreditation under Part 6-1.

A note at the end of the item is inserted to assist the reader and clarify that the heading to section 225-1 is altered by omitting "as self-accrediting entity or for accreditation of course" and substituting "and accreditation".

Item 28 - After subsection 225-1(2)

Item 28 inserts proposed new subsection 225-1(2A) which provides that the Minister may request an applicant to give the Minister specified additional information to enable the Minister to decide the application.

Item 29 - After section 225-1

Item 29 inserts proposed new subsections 225-3(1) and (2) which deal with approving a person to operate as a university in relation to an external Territory.

Proposed new subsection 225-3(1) provides that the Minister may approve a person to operate as a university in relation to an external Territory if:

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the person applies for approval, under section 225-1, to operate as a university; and

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the Minister is satisfied, following an assessment made having regard to the National Protocols and any matters set out in the Higher Education in External Territories Guidelines, that it is appropriate to approve the person to operate as a university in relation to the external Territory; and

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the person's principal purpose is either or both of to provide education and or to conduct research.

A note at the end of subsection 225-3(1) assists the reader by providing that a refusal to approve a person to operate as a university is reviewable under Part 5-7.

Proposed new subsection 225-3(2) provides that if the Minister approves a person to operate as a university in relation to an external Territory under subsection 225-3(1), he or she may, having regard to the National Protocols and any matters set out in the Higher Education in External Territories Guidelines, approve the person's use of the word "university" or the words "university college" or any like word or words for the purpose of identifying the person in the person's operation in the external Territory or identifying the person's operation in the external Territory.

The National Protocols allow an institution to be approved to operate as a university, a university college (newly established university) or specialised university (offering courses in one or two fields of study only). University colleges may not shorten their title to 'university'. Specialised universities may use a modified form of university title reflecting their discipline of specialisation (eg: Perth University of Agricultural Sciences), and may not shorten their title to 'university'.

Item 30 - Section 225-5

Section 225-5 deals with approving a person to operate as a self-accrediting entity in relation to an external territory. Item 30 repeals the section and inserts proposed new subsections 225-5(1), (2), (3) and (4).

Proposed new subsection 225-5(1) provides that the Minister may approve a person to operate as a self-accrediting entity in relation to an external Territory if:

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the person applies for approval, under section 225-1, to operate as a self-accrediting entity in relation to that Territory; and

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the Minister is satisfied, following an assessment made having regard to the National Protocols and any matters set out in the Higher Education in External Territories Guidelines, that it is appropriate that the person be authorised to accredit courses of study leading to higher education awards in relation to that Territory; and

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the person's principal purpose is either or both of the following to provide education and or to conduct research.

A note at the end of subsection 225-5(1) assists the reader by providing that a refusal to approve a person to operate as a self-accrediting entity is reviewable under Part 5-7.

Proposed subsection 225-5(2) provides that the Minister must, having regard to the National Protocols and any matters set out in the Higher Education in External Territories Guidelines, specify in the approval:

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whether the person's authority to accredit courses of study leading to higher education awards in relation to that Territory is limited in any way; and

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the nature of any such limitation.

This change reflects the provision in the National Protocols for self-accrediting authority to be limited by field and/or level of qualification.

Two notes are inserted at the end of subsection 225-5(2) to assist the reader. Note 1 provides that an authority may be limited, for example, by reference to a field of study or level of qualification. Note 2 provides that a decision to limit an authority is reviewable under Part 5-7.

Proposed new subsection 225-5(3) provides that if the Minister proposes to:

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approve under subsection (1) a person to operate as a self-accrediting entity in relation to an external Territory; and

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limit under subsection (2) the person's authority to accredit courses of study leading to higher education awards in relation to that Territory;

the Minister may, when approving that person, accredit any course of study, in relation to that Territory, that the person proposes to offer in that Territory but would not be authorised to accredit because of that limitation.

The purpose of this amendment is to allow the Minister to accredit courses that person is not authorised to self-accredit.

Proposed new subsection 225-5(4) provides that the Minister may only accredit a course of study under subsection 225-5(3) in relation to an external Territory if the Minister is satisfied, following an assessment made having regard to the National Protocols and any matters set out in the Higher Education in External Territories Guidelines, that the course, and the way of delivering it, are appropriate to the award.

A note at the end of subsection 225-5(4) is inserted to assist the reader by clarifying that a decision not to accredit a course of study under subsection 225-5(3) is reviewable under Part 5-7.

Item 31 - After section 225-5

Item 31 inserts proposed new subsection 225-7 which provides that the Minister may approve a person to operate as a non self-accrediting entity in relation to an external Territory if:

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the person applies under section 225-1 for approval to operate as a non self-accrediting entity in relation to that Territory or approval to operate as a self-accrediting entity in relation to that Territory; and

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the Minister is satisfied, following an assessment made having regard to the National Protocols and the Higher Education in External Territories Guidelines, that:

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if it would not be appropriate to authorise the person to accredit any courses of study leading to higher education awards in relation to that Territory (see subparagraph 225-5(2)(a)(ii)); and

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in any case-it is appropriate that the person be authorised to offer courses of study leading to higher education awards in relation to that Territory; and

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the person's principal purpose is either or both of the following to provide education and or to conduct research.

A note at the end of section 225-7 is inserted to assist the readers by providing that a refusal to approve a person to operate as a non self-accrediting entity, or a decision to approve a person to operate as a non self-accrediting entity on application for approval to operate as a self-accrediting entity, is reviewable under Part 5-7.

The National Protocols require applicants seeking to become higher education institutions to apply for non self-accrediting, self accrediting or university status. The purpose of this amendment is to allow the Minister to approve a person to operate as a non self-accrediting entity in relation to an external Territory even if the person had applied to operate as a self-accrediting entity.

Item 32 - Paragraph 225-10(b)

Item 32 is a technical amendment which deletes the words "award; and" and replaces those words with the word "award." to reflect the repeal of paragraph 225-10(c) by item 33.

Item 33 - Paragraph 225-10(c)

Item 33 repeals paragraph 225-10(c) which is provided for in new paragraph 225-7(c).

Item 34 - Section 225-15

Section 225-15 deals with the duration of approval and accreditation in the external territories. Item 34 repeals and replaces section 225-15 to provide that an approval or accreditation under Part 6-1 remains in force for the period that the Minister determines and is subject to any conditions that the Minister imposes.

A note at the end of section 225-15 is inserted to assist the reader by providing that a decision determining a period during which an approval or accreditation remains in force, or imposing conditions on an approval or accreditation, is reviewable under Part 5-7.

Item 35 - Section 225-20

Section 225-20 deals with amending or revoking an approval, authorisation or accreditation in relation to an external Territory.

Item 35 repeals and replaces section 225-20 with proposed new subsections 225-20(1), (2), (3), (4), (5) and (6). The purpose of these amendments is to expand the grounds on which the Minister can amend or revoke an approval, authorisation or accreditation in relation to an external territory and to reflect the new definitions of self-accrediting entity and non self-accrediting entity.

Proposed new subsections 225-20(1) - (6) allow for amendment and revocation of approval: to operate as a university, use the term 'university', operate as a self-accrediting entity, operate as a non self-accrediting entity; of course accreditation; and in cases where false or misleading information has been provided as part of an application. The changes reflect the circumstances in which the National Protocols allow for government accreditation authorities to amend or revoke approval or accreditation under the National Protocols.

Proposed new subsection 225-20(1) deals with amending or revoking an approval to operate as a university. The proposed new subsection provides that the Minister may amend or revoke an approval of a person under section 225-3 to operate as a university in relation to an external Territory at any time if the Minister is satisfied that:

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the person has breached a condition to which the person's approval is subject; or

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following a reassessment of the person's approval made having regard to the National Protocols and any matters set out in the Higher Education in External Territories Guidelines, the person's circumstances have so changed that it is no longer appropriate that the person be approved to operate as a university in relation to that Territory; or

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the person's circumstances have changed so that it no longer satisfies paragraph 225-3(1)(c) (the person's principal purpose is not longer either or both of providing education or conducting research).

A note at the end of subsection 225-20(1) is inserted to assist the reader by clarifying that a decision to amend or revoke an approval to operate as a university in an external territory is reviewable under Part 5-7.

Proposed new subsection 225-20(2) deals with amending or revoking an approval to use a word or words in an external territory. The proposed new subsection provides that the Minister may amend or revoke an approval for a person under section 225-3 to use a word or words in relation to an external Territory at any time if the Minister is satisfied that:

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the person has breached a condition to which the person's approval was subject; or

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following a reassessment of the person's approval made having regard to the National Protocols and any matters set out in the Higher Education in External Territories Guidelines, it is not appropriate for the person to use the word or words in relation to that Territory; or

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the person's approval under section 225-3 to operate as a university in relation to that Territory has been amended or revoked.

A note at the end of subsection 225-20(2) is inserted to assist the reader by clarifying that a decision to amend or revoke an approval to use a word or words is reviewable under Part 5-7.

Proposed new subsection 225-20(3) deals with amending or revoking an approval to operate as a self-accrediting entity in an external territory. The proposed new subsection provides that the Minister may amend or revoke an approval of a person under section 225-5 to operate as a self-accrediting entity in relation to an external Territory at any time if the Minister is satisfied that:

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the person has breached a condition to which the person's approval is subject; or

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following a reassessment of the person's approval made having regard to the National Protocols and any matters set out in the Higher Education in External Territories Guidelines, the person's circumstances have so changed that:

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it is no longer appropriate that the person be authorised to accredit any courses of study in relation to that Territory; or

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it is no longer appropriate that the person be authorised to accredit one or more of the courses that it is currently authorised to accredit in relation to that Territory; or

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the person's circumstances have changed so that it no longer satisfies paragraph 225-5(1)(c) (the person's principal purpose is not longer either or both of providing education or conducting research).

A note at the end of subsection 225-20(3) is inserted to assist the reader by clarifying that a decision to amend or revoke an approval to operate as a self-accrediting entity is reviewable under Part 5-7.

Proposed new subsection 225-20(4) deals with amending or revoking an approval to operate as a non self-accrediting entity in an external territory. The proposed new subsection provides that the Minister may amend or revoke an approval of a person under section 225-7 to operate as a non self-accrediting entity in relation to an external Territory at any time if the Minister is satisfied that:

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the person has breached a condition to which the person's approval is subject; or

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following a reassessment of the person's approval made having regard to the National Protocols and any matters set out in the Higher Education in External Territories Guidelines, the person's circumstances have so changed that it is no longer appropriate that the person be approved to operate as a non self-accrediting entity in relation to that Territory; or

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the person's circumstances have changed so that it no longer satisfies paragraph 225-7(c) (the person's principal purpose is no longer either or both of providing education or conducting research).

A note at the end of subsection 225-20(4) is inserted to assist the reader by clarifying that a decision to amend or revoke an approval to operate as a non self accrediting entity in an external territory is reviewable under Part 5-7.

Proposed new subsection 225-20(5) deals with amending or revoking an accreditation of a course of study in an external territory. The proposed new subsection provides that the Minister may amend or revoke an accreditation of a course of study under section 225-5 or 225-10 in relation to an external Territory at any time if the Minister is satisfied that:

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the person offering the course has breached a condition to which the accreditation is subject; or

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following a reassessment of the accreditation made having regard to the National Protocols and any matters set out in the Higher Education in External Territories Guidelines, the content of, or manner of providing, the course has so changed that it is no longer appropriate to the award; or

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the person's approval under section 225-5 (approval to operate as a self-accrediting entity in an external territory) or 225-7 (approval to operate as a non self-accrediting entity in an external territory) has been amended or revoked.

A note at the end of subsection 225-20(5) is inserted to assist the reader by clarifying that a decision to amend or revoke an approval an accreditation of a course of study in an external territory is reviewable under Part 5-7.

Proposed new subsection 225-20(6) deals with amending or revoking an approval or accreditation because of false or misleading information provided in application in relation to an external territory. The proposed new subsection provides that the Minister may amend or revoke an approval or accreditation under Part 6-1 at any time if the Minister is satisfied that information given by a person in relation to an application under section 225-1 for that approval or accreditation was false or misleading.

A note at the end of subsection 225-20(6) is inserted to assist the reader by clarifying that a decision to amend or revoke an approval of an accreditation because of false or misleading information provided in an application in relation to an external territory, is reviewable under Part 5-7.

The purpose of this subsection is to cover information given in relation to an application which will cover information given if the Minister requests further information under proposed section 225-1(2A).

Items 36 and 45 - Subparagraph 228-1(1)(a)(i) and paragraph 228-15(1)(a)

Items 36 and 45 delete the word "*university" and replace that word with the word "university" to reflect the amendment made by item 62 which deletes the definition of university . In Chapter 6, the term 'university' may refer to either an Australian or overseas university.

Item 37 - Paragraphs 228-1(1)(c) and (d)

Division 228 sets out the limitations upon the operation of certain persons in the external territories. Section 228-1 makes it an offence for persons to operate as universities or other provider in external territories without approval.

Item 37 repeals paragraphs 228-1(1)(c) and (d) and replaces them with proposed new paragraph 228-1(1)(c). Subsection 228-1(1) will now provide that a person commits an offence if the person:

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Operates or purports to operate as a university providing courses of study leading to higher education awards;

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The operation or purported operation is in an external territory;

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the person is not an Australian university or a self-accrediting entity or approved to operate in that Territory by the Minister under section 225-3 or 225-7.

This provides for consistency with the National Protocols. A note at the end of item 37 is inserted to assist the reader and clarify that the heading to section 228-1 is amended by deleting the word "accreditation" and replacing the word with "approval".

Item 38 - Subsection 228-1(2)

Item 38 repeals and replaces subsection 228-1(2) and provides that a person who contravenes subsection 228-1(1) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the contravention continues.

The effect of this amendment is to make the offence under subsection 228-1(1) a continuing offence. This means that for each day a person commits an offence the penalty of 40 penalty units will apply. The purpose of making the penalties payable each day is to ensure that the total penalty is commensurate with the financial advantage a person would obtain from offering the courses without approval.

Item 39 - Paragraph 228-5(1)(a)

Item 39 amends paragraph 225-5(1)(a) by inserting the words "the whole or a part of" after the word "offer,". This is to clarify that an offence under section 228-5(1) may be committed even if a person only offers or purports to offer, part of a course of study leading to a higher education award.

Item 40 - Paragraphs 228-5(1)(c) and (d)

Subsection 228-5(1) makes it an offence for a person to offer courses of study leading to higher education awards in external territories without accreditation.

Item 40 repeals and replaces paragraphs 228-5(1)(c) and (d) with proposed new paragraphs 228-5(1)(c), (d) and (e). Subsection 228-5(1) now provides that a person commits an offence if a person offers or purports to offer a course of study leading to a higher education award and the offer or purported offer is in an external territory and:

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the person is not an Australian university or approved under section 225-3 to operate in relation to that Territory as a university; and

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if the person is a self-accrediting entity-the person is not authorised by a government accreditation authority to accredit the course; and

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the course is not accredited by the Minister under section 225-5 (approving a person to operate as a self-accrediting entity in relation to an external territory) or 225-10 (accrediting a course of study) in relation to that Territory.

The purpose of this amendment is to reflect the new definitions of Australian university and self-accrediting entity in the National Protocols.

Item 41 - Paragraphs 228-5(2)(c) and (d)

Subsection 228-5(2) makes it an offence for a person to offer higher education awards in external territories without accreditation.

Item 41 repeals and replaces paragraphs 228-5(2)(c) and (d) so that subsection 228-5(2) now provides that a person commits an offence if a person offers or purports to offer a higher education award and the offer or purported offer is in an external territory and:

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the person is not an Australian university; and

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the offer, or purported offer, of the award is not dependent on the successful completion of a course of study leading to a higher education award.

The purpose of this amendment is to make it an offence for a person to offer an award that does not require a student to complete a course of study or complete any study in order to get the award. This provides for consistency with the National Protocols.

Item 42 - Subsection 228-5(3)

Item 42 repeals and replaces subsection 228-5(3) to provide that a person who contravenes subsection 228-5(1) or (2) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the contravention continues.

The effect of this amendment is to make an offence under either subsection 228-5(1) or (2) a continuing offence. This means that for each day a person commits an offence the penalty of 40 penalty units will apply. The purpose of making the penalties payable each day is to ensure that the total penalty is commensurate with the financial advantage a person would obtain from offering the courses or higher education awards without accreditation.

Item 43 - Paragraphs 228-10(1)(b) and (c)

Subsection 228-10(1) makes it an offence for persons to describe themselves as universities in external Territories without accreditation.

Item 43 repeals and replaces paragraphs 228-10(1)(b) and (c) with the proposed new paragraphs. Subsection 228-10(1) now provides that a person commits an offence if the person uses the word "university", "university college" or any like words to identify the person in the person's operation or purported operation or the person's operation or purported operation in the external territory and:

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the person, or the person's operation or purported operation, as so identified, is not an Australian university; and

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the Minister has not approved the use of that word or those words under subsection 225-3(2) (the Minister's approval of the word in the external territory) or section 233-1 (the requirement that the Minister must give written approval for the use of the word in the external territory despite a law in force in that territory which allows the company or business name using the word) in relation to that Territory.

The purpose of the amendment is to require persons other than Australian universities to obtain the Minister's approval to use those words in the external territory, otherwise a person commits an offence. This reflects the National Protocols' requirement on government accreditation authorities to protect use of the title 'university' and 'university college'.

Item 44 - Subsection 228-10(2)

Item 44 repeals and replaces subsection 228-10(2) to provide that a person who contravenes subsection 228-10(1) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the contravention continues.

The effect of this amendment is to make the offence under subsection 228-10(1) a continuing offence. This means that for each day a person commits an offence the penalty of 40 penalty units will apply. The purpose of making the penalties payable each day is to ensure that the total penalty is commensurate with the financial advantage a person would obtain from describing themselves as universities in the external Territories. This reflects the National Protocols' requirement on government accreditation authorities to impose significant financial penalties for breaching legislation which protects the titles 'university and 'university college'.

Item 46 - Before subsection 228-15(1)

Section 228-15 deals with the meanings of operating and offering in an external territory. Item 46 inserts proposed new subsection 228-15(1A) to provide that a reference to a person operating , or purporting to operate, in an external Territory:

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as a university, or part of a university, providing courses of study leading to higher education awards; or

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as another provider of courses of study leading to higher education awards;

includes a reference to a person:

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offering, providing, or conducting a business of offering or providing the whole or a part of such courses of study in relation to that Territory or such awards in relation to that Territory; or

•

using premises for the purposes of operating as such a provider in relation to that Territory.

The intention of this amendment is to ensure that the meaning of operating or purporting to operate in the external territories includes offering parts of courses (as well as wholes courses), providing or conducting a business of offering or providing the whole or a part of such courses and related components of those courses (for example delivery and assessment). The change is to provide consistency with the National Protocols definition of 'operating and purporting to operate'.

Item 47 - Subsection 228-15(1)

Item 47 is a technical amendment which deletes from subsection 228-15(1) the words "by means of any of the following telecommunication devices" and replaces those words with the words "by any of the following means".

Item 48 - Before paragraph 228-15(1)(c)

Item 48 is a technical amendment which inserts proposed new paragraph 228-15(1)(ca) to deal with persons operating, or purporting to operate, in an external territory by means of a postal or other like service. The change is to provide consistency with the National Protocols definition of 'operating and purporting to operate'.

Item 49 - Subsection 228-15(2)

Item 49 is a technical amendment which deletes from subsection 228-15(2) the words "by means of any of the telecommunication devices" and replaces those words with the words "by any of the means". This amendment is related to the amendment made by item 47.

Item 50 - Clause 1 of Schedule 1 (paragraph (b) of the definition of accredited course )

Schedule 1 to the Act is the dictionary.

Item 50 amends the definition of accredited course by deleting and replacing paragraph (b) of the definition to reflect the new definition of a government accreditation authority provided for at item 52.

Items 51, 52, 56 and 60 - Clause 1 of Schedule 1 (definitions - new)

Items 51, 52, 56 and 60 insert new definitions of Australian university, government accreditation authority, non self-accrediting entity, self-accrediting entity which provides for consistency with terms used in the National Protocols

Items 58 and 59 - Clause 1 of Schedule 1 (definitions - replaced)

Items 58 and 59 repeal the definitions of offering and operating and insert new definitions. The change is to provide consistency with the National Protocols definition of 'operating and purporting to operate'.

Items 53, 54, 55, 57, 61 and 62 - Clause 1 of Schedule 1 (definitions - repealed)

Items 53, 54, 55, 57, 61 and 62 repeal the superseded definitions of listed self-accrediting entity, National Protocol 1, National Protocol 3, non self-accrediting provider, self-accrediting provider and university .