Commonwealth Numbered Regulations - Explanatory Statements

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TERTIARY EDUCATION QUALITY AND STANDARDS AGENCY (CONSEQUENTIAL AMENDMENTS AND TRANSITIONAL PROVISIONS) REGULATION 2012 (SLI NO 130 OF 2012)

EXPLANATORY STATEMENT

 

Select Legislative Instrument 2012 No. 130

 

Issued by the Authority of the Minister for Tertiary Education, Skills, Science and Research

 

Tertiary Education Quality and Standards Agency

(Consequential Amendments and Transitional Provisions) Act 2011

 

Tertiary Education Quality and Standards Agency

(Consequential Amendments and Transitional Provisions) Regulation 2012

 

Authority

 

Item 2 of Schedule 3 to the Tertiary Education Quality and Standards Agency (Consequential Amendments and Transitional Provisions) Act 2011 (the Transitional Act) provides for the automatic registration of a body corporate that was, immediately before the transition time, registered under one or more State or Territory laws relating to higher education. The term, transition time, is defined by item 1 of Schedule 3 to the Transition Act to mean the time Part 2 of the Tertiary Education Quality and Standards Agency Act 2011 (the TEQSA Act) commences. That date is 29 January 2012.

 

Item 33 of Schedule 3 to the Transitional Act provides that the Governor-General may make regulations prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to:

                (a)    the enactment of the TEQSA Act; or

               (b)    the amendments or repeals made by the Transitional Act.

 

The Tertiary Education Quality and Standards Agency (Consequential Amendments and Transitional Provisions) Regulation 2012 (the Regulation) is a legislative instrument for the purposes of the Legislative Instruments Act 2003 (the LI Act).

 

Purpose and operation

 

The purpose of the Regulation is to ensure that all bodies corporate that would otherwise have failed to be automatically registered by virtue of item 2 of Schedule 3 to the Transitional Act are automatically registered for the purposes of the TEQSA Act immediately before the transition time.

 

The Regulation operates to deem a body corporate to be a higher education provider for the purposes of the TEQSA Act that, immediately before transition time (29 January 2012), did not offer or confer a regulated education award. The term regulated education award has the same meaning given by section 6 of the TEQSA Act.

 

The Regulation applies to bodies corporate who, for the purpose of allowing it to offer or confer a regulated higher education award for the completion of a course of study provided wholly or partly in a Territory, are:

 

 

Commencement

 

The Regulation is taken to have commenced on 28 January 2012. The retrospective commencement does not infringe subsection 12(2) of the LI Act because the Regulation is beneficial in nature and does not affect the rights of a person (other than the Commonwealth or an authority of the Commonwealth) as at the date of registration so as to disadvantage that person. Nor would the Regulation impose any liabilities on any person (other than the Commonwealth or an authority of the Commonwealth) in respect of anything done or omitted to be done before the date of registration.

 

Background

 

On 13 March 2008, the Australian Government initiated a Review of Australian Higher Education (Bradley Review) to examine and report on the future direction of the higher education sector. A key recommendation made by the Bradley Review was the focus on ensuring the quality of the higher education sector and the education it delivers. A key recommendation from the Bradley Review was the establishment of a national quality assurance and regulatory agency. It was envisaged that the new agency would be underpinned by a framework for higher education that includes standards for registration, categories, course accreditation and qualifications.  The new arrangements would also provide quality assurance and for the first time in Australia, national regulation for all higher education providers. In response to the Bradley Review, in March 2009, the Government announced that the Tertiary Education Quality and Standards Agency (TEQSA) would be established as the single national regulatory and quality assurance agency for higher education. 

 

TEQSA was established as an agency on 30 July 2012 and began quality assurance operations.  It commenced its regulatory activities on 29 January 2012.  TEQSA is responsible for approving higher education providers and accrediting the courses of non self-accrediting providers. These activities were previously carried out by eight individual State and Territory government accreditation agencies.

 

During the drafting of the TEQSA legislation, it was anticipated that there would be a number of higher education providers to be transitioned from their State or Territory based approval/registration to registration under the TEQSA Act.  In this transition it appears that there is uncertainty for some providers that had received State or Territory approval, and removal of doubt needs to be provided.

 

Consultation

 

Consultation was not undertaken and was not considered necessary in this case because the Regulation confers a benefit on those providers that were to be transitioned from their State or Territory based approval/registration to registration under the TEQSA Act.

 

 

Statement of Compatibility with Human Rights

 

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

 

Tertiary Education Quality and Standards Agency

(Consequential Amendments and Transitional Provisions) Regulation 2012

 

This Regulation 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 Regulation

 

The Regulation is made under item 33 of Schedule 3 to the Tertiary Education Quality and Standards Agency (Consequential Amendments and Transitional Provisions) Act 2011 (the Transitional Act), by the Governor-General on the advice of the Minister for Tertiary Education, Skills, Science and Research.

 

Item 2 of Schedule 3 to the Transitional Act provides for the automatic registration of a body corporate that was, immediately before the transition time, registered under one or more State or Territory laws relating to higher education. The term, transition time, is defined by item 1 of Schedule 3 to the Transition Act to mean the time Part 2 of the Tertiary Education Quality and Standards Agency Act 2011 (the TEQSA Act) commences. That date is 29 January 2012.

 

The Regulation provides for the automatic registration of bodies corporate that would otherwise have failed to be automatically registered for the purposes of the TEQSA Act by virtue of item 2 of Schedule 3 to the Transitional Act immediately before the transition time.

 

Human rights implications

 

Right to education

 

The Regulation engages the right to education, contained in Article 13 of the International Covenant on Economic, Social, and Cultural Rights. In particular, this Regulation has an effect on the provision of higher education by bodies corporate registered as a higher education provider for the purposes of the TEQSA Act, enabling it to offer courses of student to students.

 

To the extent that the right to education is engaged, this right is promoted by the Regulation.

 

Conclusion

 

This Instrument is compatible with human rights because it advances the protection of human rights.

 

 

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