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Higher Education (General Provisions) Bill 2008
Higher Education (General Provisions)
Bill 2008
Explanatory Notes
General Outline
Short Title
The short title of the Bill is the Higher Education (General Provisions) Bill
2008.
Policy Objectives of the Legislation
The primary policy objectives of the Bill are to:
· uphold the standards of education delivered by higher education
institutions operating in the State; and
· uphold the standards of education delivered by higher education
institutions approved to be established or recognised, authorised to
operate, or registered, under the Act, when operating outside the State;
and
· maintain public confidence in the higher education sector in the State.
Further policy objectives of the Bill are to amend:
· the Education (General Provisions) Act 2006 to clarify the head of
power to charge a fee in relation to non-State school students who
undertake a component of a program of distance education at a State
school; and
· amend the Vocational Education, Training and Employment Act 2000
to implement a number of recommendations arising from a review of
the role of Group Training Organisations.
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Higher Education (General Provisions) Bill 2008
Reasons for the Bill
Proposed Higher Education (General Provisions) Act 2008
The National Protocols for Higher Education Approval Processes
(National Protocols) were originally approved by the Ministerial Council
on Education, Employment, Training and Youth Affairs (MCEETYA) on
21 March 2000. These National Protocols are a key element of a national
quality assurance framework for Australian higher education. They have
been designed to ensure consistent criteria and standards for higher
education approval processes across Australia. The National Protocols
provide a common framework for regulating the establishment and
recognition of new universities, the operation of overseas higher education
institutions in Australia and the accreditation of courses offered by
providers of higher education other than universities.
On 31 October 2007, MCEETYA approved a new edition of the National
Protocols. Changes to the National Protocols were necessary to reflect
experience since their adoption in 2000 and to set in place arrangements to
deal with emerging challenges.
MCEETYA also agreed to the development of National Guidelines for
Higher Education Approval Processes to elaborate the provisions of the
National Protocols. The National Guidelines were also approved by
MCEETYA on 31 October 2007.
Individual states and territories have the responsibility for implementing
the National Protocols through legislation. The Higher Education (General
Provisions) Act 2003 implemented the 2000 National Protocols in
Queensland. The amendments required to this Act to implement the new
2007 National Protocols would have been very extensive. Therefore, it has
been decided that the best approach is to replace the Higher Education
(General Provisions) Act 2003 with a new Act.
Amendments to the Education (General Provisions) Act 2006
Section 52 of the Education (General Provisions) Act 2006 (the EGPA)
sets out the circumstances in which a fee is payable for the provision of
distance education to a person.
In certain situations, for example to extend the range of subject offerings
available to their students, some non-State schools make arrangements for
their students to undertake one or more of their subjects by studying the
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Higher Education (General Provisions) Bill 2008
subject/s through State schools of distance education. Due to a drafting
technicality, relating to the distinction between a "program" and a
"component of a program" of distance education and the fact non-State
school students are enrolled in less than a full "program" of distance
education, section 52 does not currently provide the necessary head of
power for fees to be charged in relation to these students. This was not the
original policy intent of the section.
During the development of the EGPA, it was intended that the head of
power under section 52 to charge fees for the provision of distance
education would apply in respect of non-State school students who
undertake one or more subjects by distance education. Broad consultation,
including a Public Benefit Test, was undertaken on this proposal at this
time.
The Bill will amend the EGPA to give effect to the original policy intent by
clarifying the head of power to charge a fee in relation to non-State school
students who undertake a component of a program of distance education at
a State school.
Amendments to the Vocational Education, Training and
Employment Act 2000
The Queensland Skills Plan, which was launched in March 2006, outlines a
policy framework that will better match the supply of skilled labour to
industry's needs and the economy's demands.
Action 18 of the Plan outlines the Queensland Government's commitment
to reviewing the role of group training organisations (GTOs) to ensure that
group training is effectively meeting its objectives.
As part of the review of GTOs, it has been decided:
(i) that an organisation which employs 25 or more apprentices and/or
trainees under hosting arrangements should be subject to a set of
minimum national standards. These standards will provide a similar
level of protection and support to that which currently exists in
relation to registered GTOs;
(ii) to remove the restrictions on the operations of GTOs to a particular
industry, industry sector or geographical area; and
(iii) to remove the restriction that allows only not-for-profit GTOs to
operate in Queensland.
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Higher Education (General Provisions) Bill 2008
Of these three actions outlined above, the first two require an amendment
to the Vocational Education, Training and Employment Act 2000 (VETE
Act).
Achieving the Objectives
Proposed Higher Education (General Provisions) Act 2008
The Bill achieves the primary policy objectives by repealing the Higher
Education (General Provisions) Act 2003 and providing an updated and
more comprehensive approval process for higher education institutions,
including the new categories of higher education institutions provided for
by the new National Protocols, as discussed below.
Non self-accrediting higher education institutions
In the past, higher education providers other than universities were required
to be registered and have their courses accredited by state and territory
higher education approval authorities. The previous National Protocols
provided for the operation of non-university providers through a process
where the provider registration and course accreditation could be either
combined, or conducted as a separate process. Queensland had chosen the
combined option, by prescribing a single accreditation process under the
Higher Education (General Provisions) Act 2003.
The new National Protocols have clearly separated the registration and
course accreditation processes, requiring non-university providers (to be
known as non self-accrediting higher education institutions) to be
registered in the jurisdiction in which they operate. This is additional to the
requirement for their courses to be accredited. Although it appears to
introduce a new process, this is effectively just a separation of the
assessment procedures for the course and provider that already existed
under the old National Protocols, because the assessment criteria will not
change.
The separation of the registration and accreditation process is seen as
advantageous because:
· it enables the facilitation of an approved national framework for
mutual recognition of course accreditation, whereby local
jurisdictions accept an accreditation decision by another authority, but
still scrutinise local delivery arrangements, by reference to the
registration criteria and course delivery criteria.
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Higher Education (General Provisions) Bill 2008
· it makes it possible to streamline processes by not re-visiting generic
registration criteria every time a provider seeks accreditation of a new
course.
Self-accrediting higher education institutions
Currently, universities are empowered to accredit their own courses, while
most non-university higher education providers must have their courses
accredited through a state or territory course approval process. There was
no mechanism under the previous National Protocols for any other higher
education entities to become self-accrediting, other than by applying for
university status.
In the national higher education sector, there are a number of
non-university providers that have been in operation for a considerable
period of time, and attained a significant level of sophistication in their
operations. Such providers are currently required to have each course they
offer individually accredited or re-accredited by the relevant state or
territory accrediting authority. As a consequence of its review of the
National Protocols, MCEETYA decided that these types of institutions
should be empowered to self-accredit their own courses.
The new National Protocols introduce a process whereby institutions other
than universities can apply to be self-accrediting. The new National
Protocols provide that normally, institutions will demonstrate that they
meet the criteria for self-accrediting authority through their track record of
re-registration and re-accreditation in at least two approval cycles.
However, in exceptional circumstances, self-accrediting authority may be
granted to an institution which has no track record of prior higher
education provision (i.e. a "greenfield" institution), in which case the
assessment will be based on a detailed plan rather than an existing
institution's track record. This allows for new entrants to the sector to attain
self-accrediting status.
Authority to self-accredit may be limited to the broad fields of study and
Australian Qualifications Framework (AQF) higher education qualification
levels in which the institution has a proven track record, or for which the
institution is seeking self-accrediting authority (in the case of assessment
based on a plan). This provision can be used to guard against an institution
attaining self-accrediting status, then branching out into fields of study in
which it has no expertise, or offering courses at a higher level than it has
the capacity to deliver.
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Higher Education (General Provisions) Bill 2008
It should also be noted that the Minister will have the power to impose
conditions on self-accrediting higher education institutions, as well as to
cancel the approval to be a self-accrediting higher education institution
where necessary. These are standard powers that currently apply to the
other categories of higher education institutions (other than universities),
and will therefore be applied similarly to self-accrediting higher education
institutions.
The Bill also provides for a streamlined process for allowing interstate
self-accrediting higher education institutions to operate in Queensland. The
governing body of the institution must provide the Minister with
documents or information about its self-accrediting authority held
interstate, including information about the scope and term of that
self-accrediting authority. The governing body must also notify the
Minister of the institution's intention to operate in Queensland, and where
it intends operating. The Minister is then required to give the institution a
notice acknowledging the institution's intention to operate in Queensland.
The institution will then hold what is to be known as a recognised
self-accrediting authority and can commence operating in Queensland.
However, it should be noted that the recognised self-accrediting authority
can be withdrawn under certain circumstances, for instance, if the
institution is not complying with the National Protocols and the National
Guidelines.
Universities, specialised universities, university colleges and specialised
university colleges
· Universities
As is the case under the Higher Education (General Provisions) Act 2003,
the Bill similarly provides that an application may be made for the
Minister's approval that an entity is suitable to be established or recognised
in Queensland, under an Act, as a university. Likewise, the Minister may
only grant such an application if satisfied that the entity will comply with
the National Protocols upon its establishment or recognition under an Act.
However, as is the case for each category of higher education institution,
the Bill provides that the Minister must also be satisfied that the entity will
comply with the new National Guidelines.
· Specialised Universities
Specialised university-level higher education institutions are extremely
high quality, self-accrediting institutions which fulfil all the criteria for
being a university, except for the breadth of study requirement. The new
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National Protocols have recognised this by providing for the approval of a
specific category of higher education institution - namely, the specialised
university. The Bill therefore also provides that an application may be
made for the Minister's approval that an entity is suitable to be established
or recognised in Queensland, under an Act, as a specialised university.
To become a specialised university, an institution is required to deliver
AQF higher education qualifications in one or two broad fields of study
only, as opposed to three or more broad fields of study for a full university.
An international example of a specialised university is the University of
Arts, London which specialises in art, design, fashion and the performing
arts.
The Bill provides that a specialised university may use a modified form of
the "university" title by using the term "[Name] University of
[specialisation]" as part of its title (e.g. Perth University of Agricultural
Sciences). A specialised university will not be able to use the title
"university" without also stating the specialisation of the institution.
There is no expectation that a specialised university will, or should,
become a full university. Consequently, there is no requirement that such a
specialised university must meet all the criteria to become a university
within a specified period. However, a specialised university could become
a university (and consequently use the title "university" without
modification), if at some point it met all the criteria for establishment or
recognition under an Act as a university in Queensland.
· University Colleges and Specialised University Colleges
One key criticism of the original National Protocols was that they posed
too high a barrier for potential universities (i.e. "greenfield" universities),
particularly in relation to the research requirement for full universities. To
address this, the new National Protocols allow for a new category of
institution with the title "university college". The Bill therefore also
provides that an application may be made for the Minister's approval that
an entity is suitable to be established or recognised in Queensland, under an
Act, as a university college, or a specialised university college.
The National Protocols provide that a university college is required to
deliver AQF higher education qualifications across a range of broad fields
of study but not to the same qualification level as a full university or a
specialised university (e.g. only including up to Research Master and PhDs
or equivalent Research Doctorates in at least one broad field of study rather
than three broad fields of study for a full university).
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Higher Education (General Provisions) Bill 2008
The National Protocols also require that a university college must build
towards satisfying the criteria for university status within the first five years
of its operation. In other words, the category of university college is an
interim arrangement to allow an institution to develop its research and
postgraduate training capacity. It should be noted that, although this is a
requirement of the National Protocols, the Bill does not specifically
provide for this. Instead, it is anticipated that this would form part of the
conditions of establishment or recognition as a university college, under a
separate Act.
If, after the interim period, an institution is not able to satisfy the criteria to
be established or recognised under an Act, as a university, it may seek
approval to operate as another type of higher education institution (i.e. a
non self-accrediting higher education institution or a self-accrediting
higher education institution).
A "greenfield" institution (i.e. where assessment is based on a plan, rather
than on an existing educational institution) may seek to become a
university college as a prelude to becoming a university or specialised
university. Likewise, an existing higher education institution (e.g. a
self-accrediting higher education institution) may seek to be a university
college if it is not immediately able to meet all the criteria to become a
university.
As is the case for specialised universities, the Bill also provides that a
university college or specialised university college may use a modified
form of the "university" title by using the term "university college" in its
title. If it is a specialised university college it must also refer to the
specialisation within its title. The intention of the use of these modified
titles is to facilitate an institution's progress towards becoming a university
or a specialised university at a later date, and ultimately being able to use
an unmodified university title. For example, the "Sydney University
College" later becomes the "Sydney University". Similarly, for a
specialised university college, the "Perth University College of
Agricultural Sciences" would later become the "Perth University of
Agricultural Sciences.
· Interstate universities, specialised universities, university colleges and
specialised university colleges
The Bill also permits interstate universities, specialised universities,
university colleges and specialised university colleges to operate in
Queensland under a recognised authority. These interstate institutions are
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Higher Education (General Provisions) Bill 2008
not required to apply for any kind of approval to operate in Queensland, as
the recognised authority is automatic. In this regard, it should be noted that
the existing requirement for an interstate university to obtain the Minister's
approval if it intends to operate in Queensland under an agency
arrangement has been removed.
Although the recognised authority to operate is automatic, the Minister will
have power to withdraw it under certain circumstances, for instance, if the
institution is not complying with the National Protocols and the National
Guidelines.
Overseas higher education institutions
The previous National Protocols allowed for overseas higher education
institutions to operate in Australia provided that they met criteria which
melded two approaches - one that relied on the standing of the institution's
accreditation status in its country of origin, and the other that required the
courses to be offered in Australia to be comparable to an Australian course
at the same level in a similar field. This had the effect of requiring the
institution to undergo similar accreditation procedures as what was
required for Australian higher education providers, even though the
overseas institution was not offering an Australian qualification.
When MCEETYA reviewed the previous National Protocols, it was
considered that the attraction of a course offered by an overseas institution
may well be its distinctive difference from similar courses offered by
Australian providers, and therefore the overarching consideration should be
to ensure the comparability of standards as a means of ensuring quality.
Consequently, although the requirement for comparability with an
Australian qualification has been omitted, the new National Protocols
ensure that the institution, and its courses to be offered in Australia, must
be subject to an appropriate quality assurance process in the country of
origin and that local delivery, quality assurance and financial arrangements
are scrutinised. This approach is consistent, in the main, with the manner in
which Australian universities are treated when they deliver their courses in
other countries.
The Bill provides for this new approach by streamlining the process for
overseas higher education institutions seeking approval to operate in
Queensland. Rather than developing an operational plan for the Minister's
approval, applicants will only be required to include details of the courses
that the institution proposes to offer in Queensland, and information about
the partner or agency arrangements that the institution proposes to use to
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Higher Education (General Provisions) Bill 2008
deliver the courses in Queensland (i.e. if the courses will not be delivered
directly by the overseas higher education institution itself). The resulting
Ministerial approval to operate will include the courses for which approval
is given, and also approval of the delivery arrangements.
Consideration of off-shore operations
Nationally, there has been debate about whether the original National
Protocols applied to the off-shore operations of Australian higher education
providers, with jurisdictions interpreting this differently.
The new National Protocols make it clear that the criteria and standards in
the National Protocols apply to all operations of an Australian higher
education provider, including their off-shore operations. Reference to
offshore activities includes an institution's campuses that are located
outside Australia, and any courses that it offers at those campuses. This
protects the interests of students outside Australia studying for an
Australian award, and assures the international reputation of Australian
higher education, thereby helping to enhance an important international
education market.
The Bill also provides for this by empowering the Minister to examine the
proposed operations of an applicant both inside and outside the State (i.e.
whether the applicant's operations are located within Queensland, in
another Australian jurisdiction, or in an overseas jurisdiction). This applies
to all applicants other than overseas higher education institutions, in which
case, as they are not offering Australian qualifications, it is not necessary to
examine their operations outside the State.
Similarly, a standard condition of approval applies to the majority of higher
education institutions to empower the Minister to enter and examine the
institution's operations, both within and outside the State, at any reasonable
time. This condition applies to help the Minister decide whether the
institution is complying with the National Protocols and the National
Guidelines. In the case of overseas higher education institutions, the
standard condition applies only in relation to the institution's operations in
the State. The standard condition does not apply in the case of universities,
specialised universities, university colleges and specialised university
colleges, because these types of higher education institutions are
established or recognised under separate legislation. Any conditions
applying to the actual establishment or recognition of these types of higher
education institution must be contained within the legislation which
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Higher Education (General Provisions) Bill 2008
establishes or recognises them (e.g. a separate Act for a particular
university).
It should be noted that the power to examine an institution's off-shore
operations may not authorise the Minister to take specific actions in foreign
jurisdictions if those actions would be inconsistent with the law of the
foreign jurisdiction. However, as long as the laws of the other jurisdiction
do not prevent the Minister from examining the institution's operations in
that jurisdiction, the Minister may exercise the power in that jurisdiction.
It should also be noted that the practical enforcement of the Minister's
power to examine the operations of a higher education institution outside of
Queensland will occur within Queensland. For instance, if the Minister is
not able to sufficiently examine any extra-territorial operation of a relevant
institution (because doing so would contravene the laws of the other
jurisdiction), then potentially this may have an impact upon the
institution's ability to satisfy the criteria necessary for the Minister to grant
its application. However, this would only be the case in those situations
where the laws of the foreign jurisdiction prevented the Minister from
examining the institution's operations in that foreign jurisdiction.
Limitation on use of title
The Higher Education (General Provisions) Act 2003 provided that it is an
offence for a person to use the title "university" or hold out that a place is a
university, unless it is a university. The Bill continues to protect the title
"university" by retaining that offence and clarifying that it applies also with
respect to interstate universities, specialised universities and overseas
universities.
The Bill includes additional provisions to specify the way in which the new
restricted titles must be used, including the titles of "specialised
university", "university college", "specialised university college" and
"self-accrediting higher education institution".
Conferral of higher education awards
The Higher Education (General Provisions) Act 2003 provided that it is an
offence to confer, or hold out that an institution was authorised to confer, a
higher education award, unless the institution had been approved to do so
in accordance with the Act.
Again, the Bill retains these offence provisions and tailors them according
to the applicable approval for each type of higher education institution. For
instance, in relation to self-accrediting higher education institutions, the
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Higher Education (General Provisions) Bill 2008
institution must not confer, or hold out that it is authorised to confer, a
higher education award unless the course leading to the award has been
accredited within the scope of the institution's self-accrediting authority.
Limitation on operation without relevant authority or approval, and
offence to operate without relevant authority or approval
In a similar manner to the Higher Education (General Provisions) Act
2003, the Bill also limits the operation of each type of higher education
institution (other than universities, specialised universities, university
colleges and specialised university colleges) in accordance with the type of
approval that is applicable. For instance, a self-accrediting higher
education institution must not accredit a course other than in relation to a
field of study or AQF qualification level for which the institution's
self-accrediting authority was given.
The overarching aims of the new National Protocols and the regulatory
framework for higher education are to uphold the standards of education
delivered by higher education institutions operating in the country, and
maintain confidence in the higher education sector. To maintain confidence
in the sector, the regulatory framework must focus on providers located in
Australia, conducting any academic or marketing activities in Australia, or
purporting to have an association with Australia.
Therefore, to achieve this aim, the Bill also incorporates an offence that a
person must not operate a higher education institution in Queensland
unless the institution is one of the types of higher education institution
provided for by the Bill.
It should be noted that the Bill also defines what is meant by the term
"operating" a higher education institution.
Amendments to the Education (General Provisions) Act 2006
The Bill achieves the objective by clarifying the head of power in the
EGPA to charge a fee in relation to non-State school students who
undertake a component of a program of distance education at a State
school.
Amendments to the Vocational Education, Training and
Employment Act 2000
The Bill achieves the objective by amending Chapter 7, Part 2 of the VETE
Act to:
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Higher Education (General Provisions) Bill 2008
· allow the Training Employment and Recognition Council (TERC) to
recognise organisations which are not GTOs but which employ 25 or
more apprentices and/or trainees under hosting arrangements
(Principal Employer Organisations); and
· remove the restrictions on the operations of GTOs to a particular
industry, industry sector or area.
Administrative costs
Implementation of the Bill is not expected to result in any additional
administrative costs to the Government.
Fundamental Legislative Principles
The following aspects of the Bill raise fundamental legislative principle
issues.
Reference to the National Protocols and National Guidelines
As explained above, the Bill provides for the inclusion of new categories of
higher education institutions, namely, specialised universities, university
colleges and self accrediting higher education institutions. The Bill
provides that for each category of higher education institution (both
existing and new), the Minister must be satisfied that an applicant will
comply with the National Protocols. This is modeled on the current
provisions of the Higher Education (General Provisions) Act 2003, which
provide that when reaching decisions under the Act, the Minister may grant
an application only if satisfied that the institution will comply with the
criteria contained in the National Protocols.
In addition to the Minister considering compliance of an institution with
the National Protocols, the Bill also proposes that the Minister considers
whether the institution will comply with the National Guidelines. This
consideration will also apply to both the existing and new categories of
higher education institutions.
It is arguable that referring to the National Protocols and the National
Guidelines does not have sufficient regard to the institution of Parliament
in that it allows for the delegation of legislative power and does not subject
the exercise of the delegated legislative power to the scrutiny of the
Legislative Assembly.
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Higher Education (General Provisions) Bill 2008
The management of the National Protocols and the National Guidelines are
the responsibility of MCEETYA. The Minister for Education is a member
of MCEETYA and is involved in the maintenance and operation of the
National Protocols and the National Guidelines.
The National Protocols and the National Guidelines are an integral part of
the national framework for higher education in Australia that ensures
national consistency. As such, the provisions are justifiable given the status
of the national framework and the fact that all states and territories
recognise the National Protocols and the National Guidelines.
Examination Power and Power of Entry
When deciding an application for approval of a higher education
institution, the Bill provides that the Minister may examine the proposed
operation of the institution, both inside and outside the State. However, in
the case of overseas higher education institutions, the Minister may only
examine the institution's operations within the State. As overseas higher
education institutions are not offering Australian qualifications, they do not
represent a risk to the reputation of the Australian higher education sector.
Therefore, it is not necessary for the Minister to consider the operations of
such institutions outside of Queensland.
The Bill also imposes a standard condition on the continuing approval for
non self-accrediting higher education institutions and self-accrediting
higher education institutions. This condition is to the effect that the
governing body of an institution must:
· allow the Minister to enter a place at any reasonable time to examine
the institution's operation within Queensland and outside Queensland;
and
· comply with all reasonable requests from the Minister for information
or records that the governing body is keeping, or has control of, that
are appropriate.
The standard condition will be similar for the continuing approval of
overseas higher education institutions and interstate universities and
university colleges that are recognised to have authority to operate in
Queensland, except that the Minister may only enter and examine the
institution's operations in Queensland. In the case of overseas higher
education institutions, given that the institution is not offering Australian
higher education qualifications, its operations outside of Queensland
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Higher Education (General Provisions) Bill 2008
(whether interstate or overseas) are not relevant to its operations in
Queensland.
The power of entry and post-entry can be exercised without consent or the
obtaining of a warrant. Therefore, it may be argued that, while not
characterised as a statutory power, the provisions still breach the
fundamental legislative principle that a power to enter premises should be
conferred with a requirement that the power only be exercised with a duly
issued warrant.
It should be noted that by including the power of entry in the standard
condition, institutions will be aware of the existence this power prior to
making application for approval to operate under the Act. Therefore, by
making application, an institution essentially consents to the exercise of the
power of entry, if necessary, following the granting of its approval to
operate.
However, the power of entry is required to enable the Minister to examine
the operations or proposed operations of a higher education institution to
ensure that it is complying with the legislation, and with the relevant
criteria under the National Protocols and National Guidelines. The powers
relate only to matters relevant to the quality of courses and the way in
which they are delivered or proposed to be delivered and are not intended
to be general entry or search and seizure powers for any other purpose.
They will allow for a rigorous response to genuine concerns regarding the
quality of a higher education institution's operation or proposed operation.
These powers are a crucial means of ensuring that providers of higher
education remain accountable by being subject to examination, where
necessary, to determine that they are providing appropriate delivery of their
education services. The provisions will also assist in affirming the
reputation of Queensland higher education providers in the international
marketplace.
Guidelines
One of the provisions that the Bill retains from the Higher Education
(General Provisions) Act 2003, is the provision which specifies that the
Minister may issue guidelines for the Act. Given that the guidelines are not
subordinate legislation, it may be argued that the power to make guidelines
is a breach of the fundamental legislative principle that legislation must
have sufficient regard to the institution of Parliament, because the
guidelines will not be subject the scrutiny of the Legislative Assembly.
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Higher Education (General Provisions) Bill 2008
However, the guidelines are intended to provide assistance to applicants
and higher education institutions, rather than being prescriptive in nature.
They will be concerned only with matters of detail including administrative
matters; guidance for the proper formulation of applications under the Act;
and the type of information to be included in the annual reports. Given the
administrative nature of the guidelines, it is not necessary that they be
subordinate legislation.
Reversal of the onus of proof
Two other provisions that the Bill retains from the Higher Education
(General Provisions) Act 2003, are the following:
· Clause 112, which provides that an act done or omitted to be done for
a person by a representative is taken to have been done or omitted to
be done also by the person, unless the person proves the person could
not, by the exercise of reasonable diligence, have prevented the act or
omission.
· Clause 113, which provides that if a corporation commits an offence
against a provision of the Act, each of the corporation's executive
officers also commits an offence, namely, the offence of failing to
ensure the corporation complies with the provision. However, an
executive officer has a defence if it can be proven that the officer was
in a position to influence the conduct of the corporation, and exercised
reasonable diligence to ensure the corporation complied with the
provision; or, otherwise, the officer was not in a position to influence
the conduct of the corporation in relation to the offence.
It may be argued that these provisions effectively contain a reversal of the
onus of proof in criminal proceedings without adequate justification, and
therefore breach the fundamental legislative principle that legislation must
have sufficient regard to the rights and liberties of individuals.
However, it should also be noted that in relation to clause 113, if the
corporation itself was prosecuted then fines would be paid only if the
corporation was still in existence and only if it had funds available. Also, if
a corporation was convicted of an offence against the Act, but its executive
officers were not convicted, those officers would be free to establish a new
corporation and make application for approval to operate as a higher
education institution (e.g. apply for accreditation of courses, or to operate
as a self-accrediting higher education or an overseas higher education
institution).
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Higher Education (General Provisions) Bill 2008
Also, in each instance, the fact to be proved is clearly within the knowledge
of the offenders and can therefore be easily disproved by them. By contrast,
it is difficult to gather evidence to prove those facts. In addition, the
provisions do provide safeguards by the inclusion of grounds upon which
liability may be avoided. Therefore, the provisions are considered
necessary to ensure an appropriate level of accountability; to uphold the
standards of education delivered by higher education institutions; and to
maintain public confidence in the higher education sector.
Immunity from civil liability
A further provision relocated from the existing Act to the proposed new
Act is clause 130 which provides protection from civil liability for the
Minister for an act or omission made honestly and without negligence
under the Act. It is not considered appropriate for the Minister to be made
personally liable in these circumstances, as a consequence of carrying out
his or her responsibilities under the Act. This could be considered to have
insufficient regard to individual rights and liberties by restricting an
individual's ability seek legal redress. However, the potential breach of
fundamental legislative principles is justifiable on the basis that the
provision operates to attach the civil liability to the State instead.
Reference to VETE Act Guidelines
Under the proposed amendments to the VETE Act, an organisation's
eligibility to be recognised as a principal employer organisation (a PEO)
will be determined by reference to approved guidelines. Furthermore, the
PEO recognition scheme will be enforced through the use of approved
guidelines relating to the registration of training contracts rather than
through an express provision in the VETE Act. It is arguable that this use of
guidelines does not have sufficient regard to the institution of Parliament in
that it allows for the delegation of legislative power and does not subject
the exercise of the delegated legislative power to the scrutiny of the
Legislative Assembly. This may give rise to a potential breach of
fundamental legislative principles.
Although it may give rise to a potential breach of fundamental legislative
principles, the use of approved guidelines rather than subordinate
legislation is necessary for two reasons. Firstly, the use of approved
guidelines is a key feature of the VETE Act. Existing approved guidelines
currently underpin the registration and regulation of training contracts and
the recognition of organisations as GTOs. As such, the use of approved
guidelines is a process which stakeholders are already familiar with.
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Higher Education (General Provisions) Bill 2008
Secondly, the use of approved guidelines is required to deliver operational
flexibility to the TERC and allow it to respond quickly to changes or
growth in the group training market, which is by its nature very dynamic.
By using approved guidelines, any changes to the relevant National
Standards can be quickly adopted in Queensland without the need to wait
for legislative change. This will ensure that quality systems are in place at
all times to support apprentices, trainees and employers alike. It should be
noted that the approved guidelines for PEOs, which will be developed in
consultation with key stakeholders and will be available on the
Department's website, will require Ministerial approval before they take
effect.
Consultation
Proposed Higher Education (General Provisions) Act 2008
Key stakeholders were consulted on an exposure draft of the proposed Bill
in early 2008, which at that time proposed to amend the Higher Education
(General Provisions) Act 2003. However, subsequent to the release of the
exposure draft of the Bill, it became evident that the amendments required
to implement the new National Protocols were very extensive and would
have resulted in an almost completely re-written version of the Higher
Education (General Provisions) Act 2003. Therefore, a decision was later
made that the best approach was to replace the Higher Education (General
Provisions) Act 2003 with a new Act. However, the essence of the
provisions contained in the exposure draft of the Bill, which was released
to stakeholders, did not change. The following stakeholders were consulted
on the exposure draft of the Bill:
· Relevant Government agencies - i.e. the Department of the Premier
and Cabinet; Queensland Treasury; the Department of Justice and
Attorney-General; the Department of Tourism, Regional Development
and Industry; Queensland Education and Training International; the
Commission for Children and Young People and Child Guardian; and
Queensland Health.
· Queensland Universities.
· Interstate Universities approved to offer higher education courses in
Queensland through an agency arrangement.
· Non-university providers of higher education currently operating in
Queensland.
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Higher Education (General Provisions) Bill 2008
· Interstate agencies responsible for higher education approval
processes.
· The Council of Private Higher Education.
· The Australian Council for Private Higher Education and Training.
Amendments to the Education (General Provisions) Act 2006
Representatives of the non-State schooling sector were informed of the
proposed amendments to the EGPA under part 11 of the Bill.
Amendments to the Vocational Education, Training and
Employment Act 2000
A consultation draft of the relevant part of the Bill was released to key
stakeholders in early February 2008. The stakeholders consulted included
All Trades Queensland (which at this stage appears to be the only
organisation that will need to seek recognition as a PEO), the Queensland
Council of Unions, the Australian Manufacturing Workers Union, the
Construction, Forestry, Mining and Energy Union, Australian Industry
Group and Commerce Queensland. The Group Training Association of
Queensland, as well as individual GTOs operating in Queensland, were
also informed of the proposed amendments.
Notes on Provisions
Part 1 Preliminary
Short title
Clause 1 establishes the short title of the Act as the Higher Education
(General Provisions) Act 2008.
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Higher Education (General Provisions) Bill 2008
Commencement
Clause 2 provides that the Act commences on a day to be fixed by
proclamation.
Act binds all persons
Clause 3 provides that the Act binds all persons including the State and, as
far as the legislative power of the Parliament permits, the Commonwealth
and the other States. However, nothing in the Act makes the
Commonwealth or a State liable to be prosecuted for an offence.
Definitions
Clause 4 provides that particular words used in the Act are defined in the
Dictionary in Schedule 2.
Objects of Act
Clause 5 provides for the objects of the Act. The objects stated in subclause
5(1) are important for guiding the administration of the Act. These objects
are:
(a) to uphold the standards of education delivered by higher education
institutions operating in the State; and
(b) to uphold the standards of education delivered by higher education
institutions authorised to operate, or registered, under the Act, when
operating outside the State; and
(c) to maintain public confidence in the higher education sector in the
State.
Clause 5 also sets out the ways in which the objects of the Act are to be
mainly achieved, namely:
(i) establishing a process for the registration of non self-accrediting
higher education institutions;
(ii) providing for the accreditation of higher education courses proposed
to be offered by non self-accrediting higher education institutions;
(iii) establishing a process for granting self-accrediting authority to higher
education institutions other than universities;
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Higher Education (General Provisions) Bill 2008
(iv) providing for the recognition of higher education institutions that have
authority to operate as self-accrediting higher education institutions in
another Australian jurisdiction;
(v) establishing a process for the establishment or recognition of
universities, specialised universities, university colleges and
specialised university colleges in the State;
(vi) providing for the approval of the operation of interstate universities,
interstate specialised universities, interstate university colleges and
interstate specialised university colleges in the State;
(vii) providing for the approval of the operation of overseas higher
education institutions in the State;
(viii)limiting the use of a title that consists of, or includes, the word
`university'.
Part 2 Non self-accrediting higher
education institutions
Division 1 Preliminary
Definition for pt 2
Clause 6 sets out the definition of national guidelines for part 2, to mean
the document entitled `National Guidelines for Higher Education Approval
Processes--Guidelines for the registration of non self-accrediting higher
education institutions and the accreditation of their course/s' that was
approved by the Ministerial Council on 31 October 2007.
Note that the Bill's dictionary defines "Ministerial Council" as the
Ministerial Council on Education, Employment, Training and Youth
Affairs. This body is also known as "MCEETYA".
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Higher Education (General Provisions) Bill 2008
Limitation on operation of non self-accrediting higher
education institution
Clause 7 creates an offence for a non self-accrediting higher education
institution to offer a higher education course unless the course is an
accredited course for the institution.
Division 2 Application for registration
Procedural requirements for application
Clause 8 specifies the procedural requirements for applying to the Minister
for registration of an entity as a non self-accrediting higher education
institution. Subsection 8(2) provides that an application for registration
must be in writing; state the place where the entity is to operate; include the
information required to be provided under the national guidelines; be
accompanied by an application under section 23 for accreditation of a
course proposed to be offered by the entity; and be accompanied by the
prescribed fee.
The requirement for the application to also be accompanied by an
application for accreditation of a course is included to ensure that an entity
is not considered for registration as a non self-accrediting higher education
institution unless it is also seeking accreditation of a course that it proposes
to offer. It is not possible for an entity to be registered as a non
self-accrediting higher education institution without also being granted
accreditation of at least one course that it proposes to offer. In this regard,
please also see clause 10(2)(b), which provides that the Minister may only
grant an application for registration if, at the same time, the Minister grants
accreditation of at least one higher education course the entity proposes to
offer .
Further information or document to support application
Clause 9 provides that the Minister may, by notice given to the applicant,
require the applicant to give further information or a document which may
reasonably be required for the Minister to decide the application. If the
applicant fails to provide the requested information or document within the
time stated in the notice, then the applicant is taken to have withdrawn the
application.
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Higher Education (General Provisions) Bill 2008
Decision on application
Clause 10 requires the Minister to make a decision to either grant, or refuse
to grant, the application. Subsection 10(2) provides that the Minister may
only grant the application if satisfied that the entity complies with the
national protocols and national guidelines; and, at the same time, grants
accreditation of at least one higher education course the entity proposes to
offer. As mentioned above, it is not possible for an entity to be registered as
a non self-accrediting higher education institution without also being
granted accreditation of at least one course that it proposes to offer.
Subsection 10(3) provides that in deciding the application, the Minister
may examine the proposed operation of the entity both inside and outside
the State; and make any other enquiries the Minister considers appropriate.
This provision empowers the Minister to examine the proposed operations
of the institution, including its operations outside of Australia, if necessary.
Subsection 10(4) requires that, if the Minister grants the application, the
Minister must as soon as practicable give the applicant a notice of the
decision. If the Minister decides to refuse to grant the application, then
subsection 10(5) requires that the applicant be given an information notice.
If the Minister fails to decide the application within 18 months after its
receipt, then subsection 10(6) provides that the Minister is taken to have
decided to refuse to grant the application. The Minister must, as soon as
practicable, give the applicant an information notice in accordance with
clause 135.
However, subsection 10(7) provides that subsection 10(6) is subject to
section 11. Therefore, if the Minister and the applicant agree under section
11 to extend the day by which the decision is to be made, subsection 10(6)
is subject to 11.
Further consideration of application
Clause 11 enables the Minister to extend the decision-making period
beyond 18 months, if more time is needed due to the complexity of the
matters that must be considered. However, the Minister and the applicant
must agree in writing on a later day by which the decision must be made
(the agreed extended day), and this written agreement must occur before
the day that is 18 months after the application was received by the Minister
(the final consideration day).
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Higher Education (General Provisions) Bill 2008
Subsection 11(3) provides that the decision-making period can be further
extended to a later day, if necessary (the further extended day). However,
once again, the Minister and the applicant must agree in writing on the
further extended day by which the decision must be made, and this
agreement must occur before the agreed extended day.
Subsection 11(4) provides that the Minister is taken to have decided to
refuse to grant the application if the Minister fails to make the decision by
the agreed extended day; or the further extended day, as applicable.
Term of registration
Clause 12 provides that registration as a non self-accrediting higher
education institution remains in force for the term of not more than 5 years
stated in the notice given to the applicant under section 10(4). However, a
registration lapses if all of the non self-accrediting higher education
institution's courses are cancelled (see clause 34).
It should also be noted that the governing body of a non self-accrediting
higher education institution may apply for renewal of the registration under
clause 15, within the stated time before the term of registration ends.
Standard condition
Clause 13 sets out the standard condition applying to the registration of an
entity as a non self-accrediting higher education institution, namely that the
governing body of the institution must -
(a) allow the Minister to enter a place at any reasonable time to examine
the operation of the institution both inside and outside the State; and
(b) comply with all reasonable requests by the Minister to give the
Minister information or records, or a copy of records, the governing
body is keeping, or has control of, that are appropriate.
Subsection 13(2) explains that the purpose of the standard condition is to
help the Minister decide whether the institution is complying with the
national protocols and national guidelines; or the institution and its
governing body are complying with any other conditions of the
registration.
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Higher Education (General Provisions) Bill 2008
Imposition of conditions
Clause 14 enables the Minister to impose conditions on the registration that
are relevant and reasonable. If the Minister decides to impose conditions,
the Minister must provide an information notice to the applicant as soon as
practicable.
Division 3 Renewal of registration
Procedural requirements for applying for renewal
Clause 15 provides that the governing body of a non self-accrediting higher
education institution (i.e. a higher education institution registered in
accordance with clause 10) may apply to the Minister for renewal of the
institution's registration. However, the application must be made within the
period starting 18 months and ending 9 months before the term of the
registration ends. This is to ensure that there is a minimum period of at
least 9 months (possibly longer, depending upon when the renewal
application is submitted) before the end of the term of registration, within
which the Minister can consider the application for renewal. This minimum
period is considered necessary due to the complexity of the matters that
must often be considered.
Subsection 15(2) sets out how the renewal application must be made,
including that it be in writing; include the information required to be
provided under the national guidelines; and be accompanied by the
prescribed fee.
Subsection 15(3) applies section 9 to an application for renewal. Please see
clause 128, which explains how an applied provision operates. In this case,
section 9 applies to the application to provide that the Minister may, by
notice given to the applicant, require the applicant to give further
information or a document which may reasonably be required for the
Minister to decide the application. If the applicant fails to provide the
requested information or document within the time stated in the notice,
then the applicant is taken to have withdrawn the application for renewal.
Decision on application
Clause 16 requires the Minister to consider the application and either grant,
or refuse to grant, the application. Subsection 16(2) provides that the
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Higher Education (General Provisions) Bill 2008
Minister may only grant the application if satisfied that the institution is
complying with the national protocols and national guidelines; and the
institution and its governing body are complying with any conditions of the
institution's registration.
Subsection 16(3) provides that in deciding the application, the Minister
may examine the operation of the institution both inside and outside the
State; and make any other enquiries the Minister considers appropriate.
This provision empowers the Minister to examine the operations of the
institution, including its operations outside of Australia, if necessary.
Subsection 16(4) applies sections 10(4) to (7) and 11 to the making of a
decision under this section. Therefore, if the Minister grants the
application, the Minister must as soon as practicable give the applicant a
notice of the decision. If the Minister decides to refuse to grant the
application, then the Minister must give the applicant an information
notice.
If the Minister fails to decide the application within 18 months after its
receipt, then the Minister is taken to have decided to refuse to grant the
application. The Minister must, as soon as practicable, give the applicant an
information notice in accordance with clause 135. However, this is subject
to clause 11, which provides that the Minister and the applicant may agree
to extend the day by which the decision is to be made.
Term of renewed registration
Clause 17 provides that the term of registration as a non self-accrediting
higher education institution, renewed under clause 16, remains in force for
the term of not more than 5 years stated in the notice given to the applicant
under section 10(4) as applied by section 16(4). However, it should be
noted that a registration lapses if the accreditation of all courses accredited
for the institution is cancelled (see clause 34).
Conditions of a renewed registration
Clause 18 applies sections 13 and 14 to a renewed registration. Therefore,
the standard condition set out in section 13 applies to the renewed
registration to require that the governing body of the institution must -
(a) allow the Minister to enter a place at any reasonable time to examine
the operation of the institution both inside and outside the State; and
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Higher Education (General Provisions) Bill 2008
(b) comply with all reasonable requests by the Minister to give the
Minister information or records, or a copy of records, the governing
body is keeping, or has control of, that are appropriate.
The purpose of the standard condition is to help the Minister decide
whether the institution is complying with the national protocols and
national guidelines; or the institution and its governing body are complying
with any other conditions of the registration.
In addition, the application of section 14 provides that the Minister may
impose conditions on a renewed registration that are relevant and
reasonable. If the Minister decides to impose conditions, the Minister must
provide an information notice to the applicant as soon as practicable.
Subsection 18(2) clarifies that imposing a condition on a renewed
registration includes changing or confirming a condition that had been
imposed on the original registration.
Registration taken to be in force while application is
considered
Clause 19 provides that if an application for renewal of registration as a
non self-accrediting higher education institution is made under section 15,
then the registration is taken to continue in force from the day that it would
have expired until either -
(a) if the Minister decides to renew the registration - the day a notice
about the decision is given to the applicant under section 10(4) as
applied by section 16(4); or
(b) if the Minister decides to refuse to renew the registration -
(i) the last day to appeal against the decision; or
(ii) if an appeal is instituted against the decision - the day the appeal
is decided.
This ensures that if there is any delay in deciding the application for
renewal such that the decision cannot be made prior to the day the term of
the registration is due to end, then the registration can continue in force
until the matter of renewal has been decided.
Subsection 19(2) confirms that the registration is not taken to be in force if
it is earlier cancelled.
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Higher Education (General Provisions) Bill 2008
Division 4 Cancellation of registration
Grounds for cancellation
Clause 20 sets out the grounds for cancelling a higher education
institution's registration as a non self-accrediting higher education
institution, namely -
(a) the institution -
(i) is not complying or has not complied, with the national protocols
and the national guidelines; or
(ii) has contravened a condition of the registration;
(b) the governing body of the institution -
(i) has contravened a condition of the registration; or
(ii) has made a major change to the institution without the Minister's
approval under section 38; or
(iii) has not given the Minister an annual report under section 40.
(c) the Minister's decision to grant or renew the registration was based on
false or misleading information.
Subsection 20(2) provides that if the Minister reasonably believes a ground
exists for cancelling a registration, the Minister must follow the process set
out in part 9, division 1. That part requires the Minister to give the holder of
the registration a show cause notice about the Minister's proposal to cancel
the registration; to consider any written representations about the show
cause notice; and to take action to cancel the registration. That part also
requires that the Minister must end the show cause process without further
action if the Minister no longer believes the ground exists to cancel the
registration.
Lapse of accreditation of courses
Clause 21 provides that if a registration as a non self-accrediting higher
education institution is cancelled under part 9, division 1, then the
accreditation of all courses accredited for the institution lapses at the same
time (i.e. the day that the cancellation of the registration takes effect).
The courses previously accredited for the institution cannot continue to
exist as accredited courses if the institution is no longer registered as a non
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Higher Education (General Provisions) Bill 2008
self-accrediting higher education institution. Therefore, despite the term of
accreditation granted for those courses, the accreditations must lapse if the
institution's registration is cancelled.
Division 5 Changes to conditions of registration
Changing conditions of registration
Clause 22 provides that the Minister may change the conditions of a
registration as a non self-accrediting higher education institution imposed
by the Minister, if there is a reasonable basis to do so. However, before
deciding to change the conditions, the Minister must give notice to the
holder of the registration. The notice must include the particulars of the
proposed change; and advise that the holder may make written submissions
about the proposed change within a reasonable period of at least 21 days
stated in the notice.
Subsection 22(2)(b) provides that the Minister must have regard to written
submissions made by the holder of the registration before the end of the
day stated in the notice.
Subsection 22(3) provides that if the Minister decides to change the
conditions, then the Minister must, as soon as practicable, provide the
holder of the registration with an information notice about the decision.
Subsection 22(4) states that the decision to change the conditions does not
take effect until -
(a) the last day to appeal against the decision; or
(b) if an appeal is instituted against the decision - the day the appeal is
decided.
Subsection 22(5) provides that the power of the Minister to change
conditions includes the power to add conditions to a registration not
already subject to conditions.
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Higher Education (General Provisions) Bill 2008
Division 6 Application for accreditation
Procedural requirements for application
Clause 23 specifies the procedural requirements for applying to the
Minister for accreditation of a higher education course. An application may
be made by either -
(a) the governing body of a non self-accrediting higher education
institution that proposes to offer the course; or
(b) the governing body of an entity that is also applying under section 8
for registration of the entity as a non self-accrediting higher education
institution.
The limitation on who may apply for accreditation of a course under this
part is necessary to ensure that a course is only accredited for an existing
non self-accrediting higher education institution; or for an entity in
conjunction with its initial registration as a non self-accrediting higher
education institution. It is not possible to accredit a course under this part
unless it is accredited for a non self-accrediting higher education
institution. It should also be noted that while the processes of registration
of the institution, and accreditation of its courses, are separate, in practice
they are considered and decided together. In this regard, please see clause
10(2)(b) which requires that the Minister may only grant an application for
registration if at the same time, the Minister also grants accreditation of at
least 1 higher education course the entity proposes to offer.
Subsection 23(2) provides that an application for accreditation of a course
must be in writing; state the place where the institution or entity proposes
to offer the course; include the information required to be provided under
the national guidelines; and be accompanied by the prescribed fee.
Subsection 23(3) provides that section 9 applies to an application under this
section. Therefore, the Minister may, by notice given to the applicant,
require the applicant to give further information or a document which may
reasonably be required for the Minister to decide the application. If the
applicant fails to provide the requested information or document within the
time stated in the notice, then the applicant is taken to have withdrawn the
application.
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Higher Education (General Provisions) Bill 2008
Decision on application
Clause 24 requires the Minister to make a decision to either grant, or refuse
to grant, the application. Subsection 24(2) provides that the Minister may
only grant the application if satisfied that the course complies with the
national protocols and national guidelines. In addition, if the applicant is
mentioned in section 23(1)(b) (i.e. it has also made an application for
registration of the entity as a non self-accrediting higher education
institution), the Minister may only grant the application if at the same time
the Minister grants registration of the applicant as a non self-accrediting
higher education institution. As explained elsewhere in these Explanatory
Notes, it is not possible for an entity to be registered as a non
self-accrediting higher education institution without also being granted
accreditation of at least one course that it proposes to offer.
Subsection 24(3) provides that in deciding the application, the Minister
may examine the operation of the institution or entity in relation to the
course both inside and outside the State; and make any other enquiries the
Minister considers appropriate. This provision empowers the Minister to
examine the operations of the institution, including its operations outside of
Australia, if necessary.
Subsection 24(4) applies sections 10(4) to (7) and 11 to the making of a
decision under this section. Therefore, if the Minister grants the
application, the Minister must as soon as practicable give the applicant a
notice of the decision. If the Minister decides to refuse to grant the
application, then the Minister must give the applicant an information
notice.
If the Minister fails to decide the application within 18 months after its
receipt, then the Minister is taken to have decided to refuse to grant the
application. The Minister must, as soon as practicable, give the applicant an
information notice in accordance with clause 135. However, this is subject
to clause 11, which provides that the Minister and the applicant may agree
to extend the day by which the decision is to be made.
Term of accreditation
Clause 25 provides that accreditation of an accredited course remains in
force for the term of not more than 5 years stated in the notice given to the
applicant under section 10(4) as applied by section 24(4). However, a
course's accreditation lapses if the institution's registration as a non
self-accrediting higher education institution is cancelled (see clause 21).
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Higher Education (General Provisions) Bill 2008
It should also be noted that the governing body of a non self-accrediting
institution may apply for renewal of the accreditation under clause 28,
within the stated time before the term of accreditation ends.
Standard condition
Clause 26 sets out the standard condition applying to the accreditation of a
course offered by a non self-accrediting higher education institution,
namely that the governing body of the institution must -
(a) allow the Minister to enter a place at any reasonable time to examine
the operation of the institution in relation to the course both inside and
outside the State; and
(b) comply with all reasonable requests by the Minister to give the
Minister information or records, or a copy of records, the governing
body is keeping, or has control of, that are appropriate.
Subsection 26(2) explains that the purpose of the standard condition is to
help the Minister decide whether the course complies with the national
protocols and national guidelines; or the institution and its governing body
are complying with any other conditions of the accreditation.
Imposition of conditions
Clause 27 enables the Minister to impose conditions on the accreditation
that are relevant and reasonable. If the Minister decides to impose
conditions, the Minister must provide an information notice to the
applicant as soon as practicable.
Division 7 Renewal of accreditation
Procedural requirements for applying for renewal
Clause 28 provides that the governing body of a non self-accrediting higher
education institution may apply to the Minister for renewal of the
accreditation of a higher education course offered by the institution.
However, the application must be made within the period starting 18
months and ending 9 months before the term of the accreditation ends. This
is to ensure that there is a minimum period of at least 9 months (possibly
longer, depending upon when the renewal application is submitted) before
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Higher Education (General Provisions) Bill 2008
the end of the term of accreditation, within which the Minister can consider
the application for renewal. This minimum period is considered necessary
due to the complexity of the matters that must often be considered.
Subsection 28(2) sets out how the renewal application must be made,
including that it be in writing; include the information required to be
provided under the national guidelines; and be accompanied by the
prescribed fee.
Subsection 28(3) applies section 9 to an application under this section.
Therefore, the Minister may, by notice given to the applicant, require the
applicant to give further information or a document which may reasonably
be required for the Minister to decide the application. If the applicant fails
to provide the requested information or document within the time stated in
the notice, then the applicant is taken to have withdrawn the application for
renewal.
Decision on application
Clause 29 requires the Minister to consider the application and either grant,
or refuse to grant, the application. Subsection 29(2) provides that the
Minister may only grant the application if satisfied that the course complies
with the national protocols and national guidelines; and the institution and
its governing body are complying with any conditions of the accreditation.
Subsection 29(3) provides that in deciding the application, the Minister
may examine the operation of the institution in relation to the course both
inside and outside the State; and make any other enquiries the Minister
considers appropriate. This provision empowers the Minister to examine
the operations of the institution, including its operations outside of
Australia, if necessary.
Subsection 29(4) applies sections 10(4) to (7) and 11 to the making of a
decision under this section. Therefore, if the Minister grants the
application, the Minister must as soon as practicable give the applicant a
notice of the decision. If the Minister decides to refuse to grant the
application, then the Minister must give the applicant an information
notice.
If the Minister fails to decide the application within 18 months after its
receipt, then the Minister is taken to have decided to refuse to grant the
application. The Minister must, as soon as practicable, give the applicant an
information notice in accordance with clause 135. However, this is subject
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Higher Education (General Provisions) Bill 2008
to clause 11, which provides that the Minister and the applicant may agree
to extend the day by which the decision is to be made.
Term of renewed accreditation
Clause 30 provides that the term of accreditation of a course, renewed
under clause 29, remains in force for the term of not more than 5 years
stated in the notice given to the applicant under section 10(4) as applied by
section 29(4). However, it should be noted that a course accreditation
lapses if registration of the non self-accrediting higher education institution
is cancelled (see clause 21).
Conditions of a renewed accreditation
Clause 31 applies sections 26 and 27 to a renewed accreditation. Therefore,
the standard condition set out in section 26 applies to the renewed
accreditation to require that the governing body of the institution must -
(a) allow the Minister to enter a place at any reasonable time to examine
the operation of the institution in relation to the course both inside and
outside the State; and
(b) comply with all reasonable requests by the Minister to give the
Minister information or records, or a copy of records, the governing
body is keeping, or has control of, that are appropriate.
The purpose of the standard condition is to help the Minister decide
whether the course complies with the national protocols and national
guidelines; or the institution and its governing body are complying with
any other conditions of the accreditation.
In addition, the application of section 27 provides that the Minister may
impose conditions on a renewed accreditation that are relevant and
reasonable. If the Minister decides to impose conditions, the Minister must
provide an information notice to the applicant as soon as practicable.
Subsection 31(2) clarifies that imposing a condition on a renewed
accreditation includes changing or confirming a condition that had been
imposed on the original accreditation.
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Accreditation taken to be in force while application is
considered
Clause 32 provides that if an application for renewal of accreditation of an
accredited course is made under section 28, then the accreditation is taken
to continue in force from the day that it would have expired until either -
(a) if the Minister decides to renew the accreditation - the day a notice
about the decision is given to the applicant under section 10(4) as
applied by section 29(4); or
(b) if the Minister decides to refuse to renew the accreditation -
(i) the last day to appeal against the decision; or
(ii) if an appeal is instituted against the decision - the day the appeal
is decided.
This ensures that if there is any delay in deciding the application for
renewal such that the decision cannot be made prior to the day the term of
the accreditation is due to end, then the accreditation can continue in force
until the matter of renewal has been decided.
Subsection 32(2) confirms that the accreditation is not taken to be in force
if it is earlier cancelled.
Division 8 Cancellation of accreditation
Grounds for cancellation
Clause 33 sets out the grounds for cancelling the accreditation of a course
accredited for a non self-accrediting higher education institution, namely -
(a) the institution -
(i) is not complying, or has not complied, with the national
protocols and the national guidelines; or
(ii) has contravened a condition of the accreditation.
(b) the governing body of the institution -
(i) has contravened a condition of the accreditation; or
(ii) has made a major change to the course without the Minister's
approval under section 38; or
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(iii) has not given the Minister an annual report under section 40.
(c) the Minister's decision to grant or renew the accreditation was based
on false or misleading information.
Subsection 33(2) provides that if the Minister reasonably believes a ground
exists for cancelling the accreditation of an accredited course, the Minister
must follow the process set out in part 9, division 1. That part requires the
Minister to give the holder of the accreditation a show cause notice about
the Minister's proposal to cancel the accreditation; to consider any written
representations about the show cause notice; and to take action to cancel
the accreditation. That part also requires that the Minister must end the
show cause process without further action if the Minister no longer believes
the ground exists to cancel the accreditation.
Lapse of registration as non self-accrediting higher education
institution
Clause 34 provides that if the accreditation of all courses accredited for a
non self-accrediting higher education institution is cancelled under part 9,
division 1, then the registration of the institution lapses at the same time
(i.e. the day that the cancellation of accreditation of all the courses takes
effect).
An institution cannot continue to exist as a non self-accrediting higher
education institution if it no longer has any courses accredited for it under
this part. Therefore, despite the term of registration of the institution, its
registration must lapse if the accreditation of all courses accredited for it is
cancelled.
Division 9 Changes to conditions of
accreditation
Changing conditions of accreditation
Clause 35 provides that the Minister may change the conditions of the
accreditation of an accredited course, if there is a reasonable basis to do so.
However, before deciding to change the conditions, the Minister must give
notice to the holder of the accreditation. The notice must include the
particulars of the proposed change; and advise that the holder may make
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written submissions about the proposed change within a reasonable period
of at least 21 days stated in the notice.
Subsection 35(2)(b) provides that the Minister must have regard to written
submissions made by the holder of the accreditation before the end of the
day stated in the notice.
Subsection 35(3) provides that if the Minister decides to change the
conditions, then the Minister must, as soon as practicable, provide the
holder of the accreditation with an information notice about the decision.
Subsection 35(4) states that the decision to change the conditions does not
take effect until -
(a) the last day to appeal against the decision; or
(b) if an appeal is instituted against the decision - the day the appeal is
decided.
Subsection 35(5) provides that the power of the Minister to change
conditions includes the power to add conditions to an accreditation not
already subject to conditions.
Division 10 Major changes to institution or
course
Application for approval to make major change
Clause 36 provides that the governing body of a non self-accrediting higher
education institution may apply to the Minister for approval to make a
major change to the institution or to a course accredited under this part for
the institution. The application must be in writing; include the information
required to be provided under the national guidelines; and be accompanied
by the prescribed fee.
Meaning of major change
Clause 37 states that a major change, to a non self-accrediting higher
education institution or to a course accredited under this part for the
institution, means a change that -
(a) may affect the institution's capacity to comply with the national
protocols and the national guidelines; and
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(b) is described as a major change in the national guidelines.
Subsections 37(2) and (3) provide examples of what are major changes to a
non self-accrediting higher education institution or to an accredited course
for the institution.
A major change to the institution includes -
(a) a merger of the institution with another entity; or
(b) a change to the institution's corporate status; or
(c) a change in the ownership of, or shareholding in, the institution; or
(d) a change that may result in a significant decline in the financial
position of the institution; or
(e) a change to the place or places where the institution operates.
A major change to a course accredited for the institution includes -
(a) a change to the way of providing the course, for example a change
from face-to-face delivery to providing the course electronically or by
distance education; or
(b) a change that may result in the course no longer being recognised by
relevant professional or industry associations, for example, graduates
of the course may no longer be able to obtain professional registration;
or
(c) a change that involves substituting new subjects for more than 25% of
the subjects in the course or deleting more than 25% of the subjects in
the course; or
(d) a significant reduction in the number of student contact hours for the
course.
Decision on application
Clause 38 requires the Minister to consider the application and either grant,
or refuse to grant, the application. Subsection 38(2) provides that the
Minister may only grant the application if satisfied that the institution will
comply with the national protocols and national guidelines after the change
is effected.
Subsection 38(3) provides that in deciding the application, the Minister
may examine the operation of the institution in relation to the course both
inside and outside the State; and make any other enquiries the Minister
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considers appropriate. This provision empowers the Minister to examine
the operations of the institution, including its operations outside of
Australia, if necessary.
Subsection 38(4) requires that, if the Minister grants the application, the
Minister must as soon as practicable give the applicant a notice of the
decision. The notice must state the decision; and the day by which the
change must be effected. If the Minister decides to refuse to grant the
application, then subsection 38(5) requires that the applicant be given an
information notice.
If the Minister fails to decide the application within 6 months after its
receipt, then subsection 38(6) provides that the Minister is taken to have
decided to refuse to grant the application. The Minister must, as soon as
practicable, give the applicant an information notice in accordance with
clause 135.
However, subsection 38(7) applies section 11 to the making of the decision.
Therefore, if necessary, the Minister and the applicant may agree under
section 11 to extend the day by which the decision is to be made. It should
also be noted that subsection 38(8) provides that in applying section 11, the
final consideration day will be the day that is 6 months after the
application to make a major change was received by the Minister.
Division 11 Other provisions
Conferring of higher education award by non self-accrediting
higher education institution
Clause 39 creates an offence for a non self-accrediting higher education
institution to confer, or hold out that it is authorised to confer, a higher
education award unless the course leading to the award is an accredited
course for the institution.
Subsection 39(2) creates an offence for a person to hold out that a non
self-accrediting higher education institution is authorised to confer a higher
education award unless the course leading to the award is an accredited
course for the institution.
It should be noted that if a non self-accrediting higher education institution
also holds a self-accrediting authority under part 3 of the Act, this offence
provision does not prohibit the institution from conferring higher education
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awards in relation to courses that the institution has accredited in
accordance with the scope of its authority under part 3.
Annual report
Clause 40 requires the governing body of a non self-accrediting higher
education institution to give the Minister an annual report on or before 31
May in each year.
Subsection 40(2) requires that the annual report must be given in the way
required by the Minister; and must cover the period from the previous 1
January to 31 December. In addition, the annual report must contain
information to help the Minister assess whether the institution is complying
with the national protocols and national guidelines; and whether the
institution and its governing body are complying with the conditions of the
registration and accreditation.
A fee is also payable for the assessment of the annual report, and this fee
must be submitted with the annual report. Subsection 40(4) provides that
the annual report is taken not to have been given until the assessment fee
has been paid.
Part 3 Self-accrediting higher
education institutions
Division 1 Preliminary
Definition for pt 3
Clause 41 sets out the definition of national guidelines for part 3, to mean
the document entitled `National Guidelines for Higher Education Approval
Processes--Guidelines for awarding self-accrediting authority to higher
education institutions other than universities' that was approved by the
Ministerial Council on 31 October 2007.
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Limitation on operation of self-accrediting higher education
institution
Clause 42 creates an offence for a self-accrediting higher education
institution to accredit a course other than in relation to a field of study or
AQF qualification level for which the institution holds a self-accrediting
authority.
Division 2 Self-accrediting higher education
institutions (other than interstate)
Subdivision 1 Application for self-accrediting
authority
Procedural requirements for application
Clause 43 specifies the procedural requirements for applying to the
Minister for authority to operate as a self-accrediting higher education
institution.
Subsection 43(2) provides that an application for self-accrediting authority
must be in writing; state the fields of study and the AQF qualification levels
for which the governing body is seeking the self-accrediting authority;
include the information required to be provided under the national
guidelines; and be accompanied by the prescribed fee.
Further information or document to support application
Clause 44 provides that the Minister may, by notice given to the applicant,
require the applicant to give further information or a document which may
reasonably be required for the Minister to decide the application. If the
applicant fails to provide the requested information or document within the
time stated in the notice, then the applicant is taken to have withdrawn the
application.
Decision on application
Clause 45 requires the Minister to consider the application and either grant,
or refuse to grant, the application. Subsection 45(2) provides that the
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Minister may only grant the application if satisfied that the entity complies
with the national protocols and national guidelines.
Subsection 45(3) provides that in deciding the application, the Minister
may examine the operation of the institution in relation to the course both
inside and outside the State; and make any other enquiries the Minister
considers appropriate. This provision empowers the Minister to examine
the operations of the institution, including its operations outside of
Australia, if necessary.
Subsection 45(4) provides that if the Minister decides to grant the
application, the Minister must also decide the fields of study and the AQF
qualification levels for which the self-accrediting authority is to be given
(this is known as the scope of the self-accrediting authority).
Subsection 45(5) requires that, if the Minister grants the application, the
Minister must as soon as practicable give the applicant a notice of the
decision. If the Minister decides to refuse to grant the application, then
subsection 45(6) requires that the applicant be given an information notice.
If the Minister fails to decide the application within 18 months after its
receipt, then subsection 45(7) provides that the Minister is taken to have
decided to refuse to grant the application. The Minister must, as soon as
practicable, give the applicant an information notice in accordance with
clause 135.
However, subsection 45(8) provides that subsection 45(7) is subject to
section 46. Therefore, if the Minister and the applicant agree under section
46 to extend the day by which the decision is to be made, subsection 45(7)
is subject to section 46.
Further consideration of application
Clause 46 enables the Minister to extend the decision-making period
beyond 18 months, if more time is needed due to the complexity of the
matters that must be considered. However, the Minister and the applicant
must agree in writing on a later day by which the decision must be made
(the agreed extended day), and this written agreement must occur before
the day that is 18 months after the application was received by the Minister
(the final consideration day).
Subsection 46(3) provides that the decision-making period can be further
extended to a later day, if necessary (the further extended day). However,
once again, the Minister and the applicant must agree in writing on the
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further extended day by which the decision must be made, and this
agreement must occur before the agreed extended day.
Subsection 46(4) provides that the Minister is taken to have decided to
refuse to grant the application if the Minister fails to make the decision by
the agreed extended day; or the further extended day, as applicable.
Term of self-accrediting authority
Clause 47 provides that a self-accrediting authority remains in force for the
term of not more than 5 years stated in the notice given to the applicant
under section 45(5). It should be noted that the governing body of a
self-accrediting higher education institution may apply for renewal of the
institution's self-accrediting authority under clause 50, within the stated
time before the term of the self-accrediting authority ends.
Standard condition
Clause 48 sets out the standard condition applying to a self-accrediting
authority, namely that the governing body of the institution that holds the
authority must -
(a) allow the Minister to enter a place at any reasonable time to examine
the operation of the institution both inside and outside the State; and
(b) comply with all reasonable requests by the Minister to give the
Minister information or records, or a copy of records, the governing
body is keeping, or has control of, that are appropriate.
Subsection 48(2) explains that the purpose of the standard condition is to
help the Minister decide whether the institution is complying with the
national protocols and national guidelines; or whether the institution and its
governing body are complying with any other conditions of the authority.
Imposition of conditions
Clause 49 enables the Minister to impose conditions on the self-accrediting
authority that are relevant and reasonable. If the Minister decides to impose
conditions, the Minister must provide an information notice to the
applicant as soon as practicable.
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Subdivision 2 Renewal of self-accrediting authority
Procedural requirements for applying for renewal
Clause 50 provides that the governing body of a self-accrediting higher
education institution may apply to the Minister for renewal of the
institution's self-accrediting authority. However, the application must be
made within the period starting 18 months and ending 9 months before the
term of the authority ends. This is to ensure that there is a minimum period
of at least 9 months (possibly longer, depending upon when the renewal
application is submitted) before the end of the term of the authority, within
which the Minister can consider the application for renewal. This minimum
period is considered necessary due to the complexity of the matters that
must often be considered.
Subsection 50(2) sets out how the renewal application must be made,
including that it be in writing; include the information required to be
provided under the national guidelines; and be accompanied by the
prescribed fee.
Subsection 50(3) applies section 44 to an application for renewal under this
section. Please see clause 128, which explains how an applied provision
operates. In this case, section 44 applies to the application to provide that
the Minister may, by notice given to the applicant, require the applicant to
give further information or a document which may reasonably be required
for the Minister to decide the application. If the applicant fails to provide
the requested information or document within the time stated in the notice,
then the applicant is taken to have withdrawn the application for renewal.
Decision on application
Clause 51 requires the Minister to consider the application and either grant,
or refuse to grant, the application. Subsection 51(2) provides that the
Minister may only grant the application if satisfied that -
(a) the institution -
(i) is operating within the scope of its authority; and
(ii) is complying with the national protocols and national guidelines;
and
(b) the institution and its governing body are complying with any
conditions of the authority.
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Subsection 51(3) provides that in deciding the application, the Minister
may examine the operation of the institution both inside and outside the
State; and make any other enquiries the Minister considers appropriate.
This provision empowers the Minister to examine the operations of the
institution, including its operations outside of Australia, if necessary.
Subsection 51(4) applies sections 45(5) to (8) and 46 to the making of a
decision under this section. Therefore, if the Minister grants the
application, the Minister must as soon as practicable give the applicant a
notice of the decision. If the Minister decides to refuse to grant the
application, then the Minister must give the applicant an information
notice.
If the Minister fails to decide the application within 18 months after its
receipt, then the Minister is taken to have decided to refuse to grant the
application. The Minister must, as soon as practicable, give the applicant an
information notice in accordance with clause 135. However, this is subject
to clause 46, which provides that the Minister and the applicant may agree
to extend the day by which the decision is to be made.
Term of renewed self-accrediting authority
Clause 52 provides that the term of a self-accrediting authority, renewed
under section 51 remains in force for the term of not more than 5 years
stated in the notice given to the applicant under section 45(5) as applied by
section 51(4).
Conditions of a renewed self-accrediting authority
Clause 53 applies sections 48 and 49 to a renewed self-accrediting
authority. Therefore, the standard condition set out in section 48 applies to
the renewed self-accrediting authority to require that the governing body of
the institution must -
(a) allow the Minister to enter a place at any reasonable time to examine
the operation of the institution both inside and outside the State; and
(b) comply with all reasonable requests by the Minister to give the
Minister information or records, or a copy of records, the governing
body is keeping, or has control of, that are appropriate.
The purpose of the standard condition is to help the Minister decide
whether the institution is complying with the national protocols and
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national guidelines; or whether the institution and its governing body are
complying with any other conditions of the authority.
In addition, the application of section 49 provides that the Minister may
impose conditions on a renewed self-accrediting authority that are relevant
and reasonable. If the Minister decides to impose conditions, the Minister
must provide an information notice to the applicant as soon as practicable.
Subsection 53(2) clarifies that imposing a condition on a renewed
self-accrediting authority includes changing or confirming a condition that
had been imposed on the original self-accrediting authority.
Self-accrediting authority taken to be in force while application
is considered
Clause 54 provides that if an application for renewal of a self-accrediting
authority is made under section 50, then the authority is taken to continue
in force from the day that it would have expired until either -
(a) if the Minister decides to renew the authority - the day a notice about
the decision is given to the applicant under section 45(5) as applied by
section 51(4); or
(b) if the Minister decides to refuse to renew the authority -
(i) the last day to appeal against the decision; or
(ii) if an appeal is instituted against the decision - the day the appeal
is decided.
This ensures that if there is any delay in deciding the application for
renewal such that the decision cannot be made prior to the day the term of
the authority is due to end, then the authority can continue in force until the
matter of renewal has been decided.
Subsection 54(2) confirms that the authority is not taken to be in force if it
is earlier cancelled.
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Subdivision 3 Cancellation of self-accrediting
authority
Grounds for cancellation
Clause 55 sets out the grounds for cancelling a self-accrediting higher
education institution's self-accrediting authority, namely -
(a) the institution -
(i) is not complying, or has not complied, with the national
protocols and the national guidelines; or
(ii) has contravened a condition of the authority;
(b) the governing body of the institution -
(i) has contravened a condition of the authority; or
(ii) has accredited a course that was not within the scope of its
authority; or
(iii) has made a major change to the institution without the Minister's
approval under section 59; or
(iv) has not given the Minister an annual report under section 65.
(c) the Minister's decision to grant or renew the authority was based on
false or misleading information.
Subsection 55(2) provides that if the Minister reasonably believes a ground
exists for cancelling a self-accrediting authority, the Minister must follow
the process set out in part 9, division 1. That part requires the Minister to
give the holder of the authority a show cause notice about the Minister's
proposal to cancel the authority; to consider any written representations
about the show cause notice; and to take action to cancel the authority. That
part also requires that the Minister must end the show cause process
without further action if the Minister no longer believes the ground exists
to cancel the authority.
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Subdivision 4 Changes to conditions of
self-accrediting authority
Changing conditions of self-accrediting authority
Clause 56 provides that the Minister may change the conditions of a
self-accrediting authority imposed by the Minister, if there is a reasonable
basis to do so. However, before deciding to change the conditions, the
Minister must give notice to the holder of the authority. The notice must
include the particulars of the proposed change; and advise that the holder
may make written submissions about the proposed change within a
reasonable period of at least 21 days stated in the notice.
Subsection 56(2)(b) provides that the Minister must have regard to written
submissions made by the holder of the authority before the end of the day
stated in the notice.
Subsection 56(3) provides that if the Minister decides to change the
conditions, then the Minister must, as soon as practicable, provide the
holder of the authority with an information notice about the decision.
Subsection 56(4) states that the decision to change the conditions does not
take effect until -
(i) the last day to appeal against the decision; or
(ii) if an appeal is instituted against the decision - the day the appeal
is decided.
Subsection 56(5) provides that the power of the Minister to change
conditions includes the power to add conditions to a self-accrediting
authority not already subject to conditions.
Subdivision 5 Major changes to self-accrediting
higher education institution
Application for approval to make major change
Clause 57 provides that the governing body of a self-accrediting higher
education institution may apply to the Minister for approval to make a
major change to the institution. The application must be in writing; include
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the information required to be provided under the national guidelines; and
be accompanied by the prescribed fee.
Meaning of major change
Clause 58 states that a major change, to a self-accrediting higher education
institution means a change that -
(a) may affect the institution's capacity to comply with the national
protocols and the national guidelines; and
(b) is described as a major change in the national guidelines.
Subsection 58(2) provides examples of what are major changes to a
self-accrediting higher education institution. A major change to the
institution includes -
(a) a merger of the institution with another entity; or
(b) a change to the institution's corporate status; or
(c) a change in the ownership of, or shareholding in, the institution; or
(d) a change that may result in a significant decline in the financial
position of the institution.
It should be noted that subsection 58(3) clarifies that a change to the scope
of the institution's self-accrediting authority is not a major change. The
institution may apply for a change to the scope of its authority under clause
60.
Decision on application
Clause 59 requires the Minister to consider the application and either grant,
or refuse to grant, the application. Subsection 59(2) provides that the
Minister may only grant the application if satisfied that the institution will
comply with the national protocols and national guidelines after the change
is effected.
Subsection 59(3) provides that in deciding the application, the Minister
may examine the operation of the institution both inside and outside the
State; and make any other enquiries the Minister considers appropriate.
This provision empowers the Minister to examine the operations of the
institution, including its operations outside of Australia, if necessary.
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Subsection 59(4) requires that, if the Minister grants the application, the
Minister must as soon as practicable give the applicant a notice of the
decision. The notice must state the decision; and the day by which the
change must be effected. If the Minister decides to refuse to grant the
application, then subsection 59(5) requires that the applicant be given an
information notice.
If the Minister fails to decide the application within 6 months after its
receipt, then subsection 59(6) provides that the Minister is taken to have
decided to refuse to grant the application. The Minister must, as soon as
practicable, give the applicant an information notice in accordance with
clause 135.
However, subsection 59(7) applies section 46 to the making of the decision.
Therefore, if necessary, the Minister and the applicant may agree under
section 46 to extend the day by which the decision is to be made. It should
also be noted that subsection 59(8) provides that in applying section 46, the
final consideration day will be the day that is 6 months after the
application to make a major change was received by the Minister.
Subdivision 6 Changes to scope of self-accrediting
authority
Procedural requirements for application
Clause 60 provides that the governing body of a self-accrediting higher
education institution may apply to the Minister for approval to change the
scope of the institution's self-accrediting authority. As provided by clause
45, the scope of the authority is the fields of study and AQF qualification
levels for which the authority has been given. The application must -
(a) be in writing; and
(b) state the proposed change to the scope of the authority; and
(c) include the information required to be provided under the national
guidelines; and
(d) be accompanied by the fee prescribed under a regulation.
Subsection 60(3) applies section 44 to an application under this section.
Therefore, the Minister may, by notice given to the applicant, require the
applicant to give further information or a document which may reasonably
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be required for the Minister to decide the application. If the applicant fails
to provide the requested information or document within the time stated in
the notice, then the applicant is taken to have withdrawn the application.
Decision on application
Clause 61 requires the Minister to make a decision to either grant, or refuse
to grant, the application. Subsection 61(2) provides that the Minister may
only grant the application if satisfied that the institution will comply with
the national protocols and national guidelines after the change is effected.
Subsection 61(3) provides that in deciding the application, the Minister
may examine the operation of the institution both inside and outside the
State; and make any other enquiries the Minister considers appropriate.
This provision empowers the Minister to examine the operations of the
institution, including its operations outside of Australia, if necessary.
Subsection 61(4) provides that if the Minister decides to grant the
application, the Minister must also change to the scope of the authority in
the way mentioned in the application.
Subsection 61(5) requires that, if the Minister grants the application, the
Minister must as soon as practicable give the applicant a notice of the
decision. If the Minister decides to refuse to grant the application, then
subsection 61(6) requires that the applicant be given an information notice.
If the Minister fails to decide the application within 12 months after its
receipt, then subsection 61(7) provides that the Minister is taken to have
decided to refuse to grant the application. The Minister must, as soon as
practicable, give the applicant an information notice in accordance with
clause 135.
However, subsection 61(8) applies section 46 to the making of the decision.
Therefore, if necessary, the Minister and the applicant may agree under
section 46 to extend the day by which the decision is to be made. It should
also be noted that subsection 61(9) provides that in applying section 46, the
final consideration day will be the day that is 12 months after the
application to change the scope of the authority was received by the
Minister.
Term of self-accrediting authority
Clause 62 specifies that the term of a self-accrediting authority is not
affected by a change to the scope of the authority. Therefore, the authority
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remains in force for the term of not more than 5 years stated in the notice
given under section 45(5) when the authority was first granted; or the
notice given under section 51(4) at the time the authority was renewed.
Imposition of conditions
Clause 63 enables the Minister to impose conditions that are relevant and
reasonable on a self-accrediting authority at the time the Minister grants an
application to change the scope of that authority. If the Minister decides to
impose conditions, the Minister must provide an information notice to the
applicant as soon as practicable. Subsection 63(3) clarifies that imposing a
condition on the authority includes changing or confirming a condition that
had been imposed on the authority.
Subdivision 7 Other provisions
Conferring of higher education award by self-accrediting
higher education institution
Clause 64 creates an offence for a self-accrediting higher education
institution to confer, or hold out that it is authorised to confer, a higher
education award unless the course leading to the award is accredited under
the scope of the institution's self-accrediting authority.
Subsection 64(2) creates an offence for a person to hold out that a
self-accrediting higher education institution is authorised to confer a higher
education award unless the course leading to the award is accredited under
the scope of the institution's self-accrediting authority.
It should be noted that if a self-accrediting higher education institution is
also registered under part 2 of the Act as a non self-accrediting higher
education institution, this offence provision does not prohibit the institution
from conferring higher education awards in relation to courses that have
been accredited for the institution under part 2.
Annual report
Clause 65 requires the governing body of a self-accrediting higher
education institution to give the Minister an annual report on or before 31
May in each year.
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Subsection 65(2) requires that the annual report must be given in the way
required by the Minister; and must cover the period from the previous 1
January to 31 December. In addition, the annual report must contain
information to help the Minister decide whether -
(i) the institution is -
(A) operating within the scope of its authority; and
(B) complying with the national protocols and national guidelines;
and
(ii) the institution and its governing body are complying with the
conditions of the authority.
A fee is also payable for the assessment of the annual report, and this fee
must be submitted with the annual report. Subsection 65(4) provides that
the annual report is taken not to have been given until the assessment fee
has been paid.
Division 3 Interstate self-accrediting higher
education institutions
Definitions for div 3
Clause 66 sets out the definitions for division 3.
Operating under a recognised self-accrediting authority
Clause 67 provides that if an interstate self-accrediting higher education
institution intends to operate in Queensland, its governing body must
advise the Minister accordingly. Subsection 67(1) provides that the
governing body must give the Minister a copy of its interstate
self-accrediting authority (i.e. the self-accrediting authority granted to it by
the other jurisdiction), as well as any other documents or information
reasonably required by the Minister, including documents or information
about the interstate self-accrediting authority's scope or term. The
governing body must also give the Minister notice of the institution's
intention to operate in Queensland; and the place where the institution
intends operating.
Subsection 67(2) requires the Minister to give the governing body a notice
acknowledging the institution's intention to operate. Provision of the
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Higher Education (General Provisions) Bill 2008
Minister's notice activates the recognised self-accrediting authority so that
the institution may commence operating in Queensland.
Subsection 67(3) provides that the institution's recognised self-accrediting
authority applies only to a field of study or AQF qualification level for
which the institution's interstate self-accrediting authority is held (i.e. the
scope of its interstate self-accrediting authority).
Term of recognised self-accrediting authority
Clause 68 provides that a recognised self-accrediting authority remains in
force, for an interstate self-accrediting higher education institution, while
the institution's interstate self-accrediting authority remains in force (that
is, the self-accrediting authority that it holds in the other jurisdiction).
Subsection 68(2) clarifies that this is subject to the withdrawal of the
recognised self-accrediting authority under section 71 and part 9, division
1.
Standard condition
Clause 69 sets out the standard condition applying to a recognised
self-accrediting authority, namely that the governing body of the institution
must -
(a) allow the Minister to enter a place at any reasonable time to examine
the operation of the institution in the State; and
(b) comply with all reasonable requests by the Minister to give the
Minister information or records, or a copy of records, the governing
body is keeping, or has control of, that are appropriate.
Subsection 69(2) explains that the purpose of the standard condition is to
help the Minister decide whether the institution is complying with the
national protocols and national guidelines.
Notification of change to scope of authority
Clause 70 provides that the governing body of an interstate self-accrediting
higher education institution to which a recognised self-accrediting
authority relates must give the Minister notice of any change to the scope
of the institution's interstate self-accrediting authority. The notice must be
given within 14 days after the change happens.
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Grounds for withdrawal of recognised self-accrediting
authority
Clause 71 sets out the grounds for withdrawing an interstate
self-accrediting higher education institution's recognised self-accrediting
authority, namely -
(a) the institution is not complying, or has not complied, with the national
protocols and the national guidelines; or
(b) the governing body of the institution
(i) has contravened section 69 (i.e. the standard condition of the
recognised self-accrediting authority); or
(ii) has not given the Minister notice of a change under section 70
(i.e. a change to the scope of the institution's interstate
self-accrediting authority).
Subsection 71(2) provides that if the Minister reasonably believes a ground
exists for withdrawing a recognised self-accrediting authority, the Minister
must follow the process set out in part 9, division 1. That part requires the
Minister to give the holder of the recognised self-accrediting authority a
show cause notice about the Minister's proposal to withdraw the authority;
to consider any written representations about the show cause notice; and to
take action to withdraw the authority. That part also requires that the
Minister must end the show cause process without further action if the
Minister no longer believes the ground exists to withdraw the authority.
Conferring of higher education award by interstate
self-accrediting higher education institution
Clause 72 creates an offence for an interstate self-accrediting higher
education institution to confer, or hold out that it is authorised to confer, a
higher education award in the State unless -
(a) the institution holds a recognised self-accrediting authority; and
(b) the course leading to the award is accredited under the scope of the
institution's interstate self-accrediting authority.
Subsection 72(2) creates an offence for a person to hold out that an
interstate self-accrediting higher education institution is authorised to
confer a higher education award unless the course leading to the award is
accredited under the scope of the institution's interstate self-accrediting
authority.
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Part 4 Universities, specialised
universities, university colleges
and specialised university
colleges
Division 1 Preliminary
Definitions for pt 4
Clause 73 sets out the definition of national guidelines for part 4, to mean
the document entitled `National Guidelines for Higher Education Approval
Processes--Guidelines for establishing Australian universities' that was
approved by the Ministerial Council on 31 October 2007.
Division 2 Universities etc. (other than
interstate)
Subdivision 1 Application for approval
Procedural requirements for application
Clause 74 specifies the procedural requirements for applying to the
Minister for approval that an entity is suitable to be established or
recognised in the State, under an Act, as -
(a) a university; or
(b) a specialised university; or
(c) a university college; or
(d) a specialised university college.
If the Minister grants the application, the institution can then either be
established under its own enabling Act, or recognised via an Act, as one of
these types of higher education institutions.
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Subsection 74(2) provides that the application must be in writing; include
the information required to be provided under the national guidelines; and
be accompanied by the prescribed fee.
Public notification
Clause 75 requires the Minister to carry out a public notification process as
soon as practicable after receiving the application. The public notification
process must be carried out as provided by the national guidelines.
Further information or document to support application
Clause 76 provides that the Minister may, by notice given to the applicant,
require the applicant to give further information or a document which may
reasonably be required for the Minister to decide the application. If the
applicant fails to provide the requested information or document within the
time stated in the notice, then the applicant is taken to have withdrawn the
application.
Decision on application
Clause 77 requires the Minister to consider the application and either grant,
or refuse to grant, the application. Subsection 77(2) provides that the
Minister may only grant the application if satisfied that the entity will
comply with the national protocols and national guidelines on its
establishment or recognition in the State, under an Act, as -
(a) a university; or
(b) a specialised university; or
(c) a university college; or
(d) a specialised university college.
Subsection 77(3) provides that in deciding the application, the Minister
may examine the operation of the entity both inside and outside the State;
and make any other enquiries the Minister considers appropriate. This
provision empowers the Minister to examine the operations of the
institution, including its operations outside of Australia, if necessary.
Subsection 77(4) requires that, if the Minister grants the application, the
Minister must as soon as practicable give the applicant a notice of the
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decision. If the Minister decides to refuse to grant the application, then
subsection 77(5) requires that the applicant be given an information notice.
If the Minister fails to decide the application within 18 months after its
receipt, then subsection 77(6) provides that the Minister is taken to have
decided to refuse to grant the application. The Minister must, as soon as
practicable, give the applicant an information notice in accordance with
clause 135.
However, subsection 77(7) provides that subsection 77(6) is subject to
section 78. Therefore, if the Minister and the applicant agree under section
78 to extend the day by which the decision is to be made, subsection 77(6)
is subject to section 78.
It should be noted that, if the Minister grants the application, the Minister's
decision is only to approve the establishment or recognition of a higher
education institution as a university, specialised university, university
college or specialised university college. Legislation must be subsequently
enacted to establish or recognise the institution accordingly.
Further consideration of application
Clause 78 enables the Minister to extend the decision-making period
beyond 18 months, if more time is needed due to the complexity of the
matters that must be considered. However, the Minister and the applicant
must agree in writing on a later day by which the decision must be made
(the agreed extended day), and this written agreement must occur before
the day that is 18 months after the application was received by the Minister
(the final consideration day).
Subsection 78(3) provides that the decision-making period can be further
extended to a later day, if necessary (the further extended day). However,
once again, the Minister and the applicant must agree in writing on the
further extended day by which the decision must be made, and this
agreement must occur before the agreed extended day.
Subsection 78(4) provides that the Minister is taken to have decided to
refuse to grant the application if the Minister fails to make the decision by
the agreed extended day; or the further extended day, as applicable.
Imposition of conditions
Clause 79 enables the Minister to impose conditions on the approval that
are relevant and reasonable. If the Minister decides to impose conditions,
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the Minister must provide an information notice to the applicant as soon as
practicable.
Subdivision 2 Review of operation of university or
specialised university
Review
Clause 80 provides that the Minister may review the operations of a
university or specialised university after the fifth anniversary of its
establishment or recognition under an Act. If a review is undertaken,
subsection 80(2) provides that the review must involve a consideration of
whether the university or specialised university is complying with the
national protocols and national guidelines. Subsection 80(3) provides that,
in conducting the review, the Minister has the power to examine the
operation of the university or specialised university both inside and outside
the State.
Division 3 Interstate universities etc.
Recognised authority for interstate higher education
institutions
Clause 81 states that each of the following higher education institutions is
taken to hold an authority to operate the institution in Queensland (this is a
recognised authority) -
(a) an interstate university; or
(b) an interstate specialised university; or
(c) an interstate university college; or
(d) an interstate specialised university college.
A recognised authority is automatic and does not require any other
approval or notification process. However, subsection 81(2) provides that
this is subject to the withdrawal of the recognised authority under section
83 and part 9, division 1.
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Standard condition
Clause 82 sets out the standard condition applying to a recognised
authority, namely that the governing body of the institution must -
(a) allow the Minister to enter a place at any reasonable time to examine
the operation of the institution in the State; and
(b) comply with all reasonable requests by the Minister to give the
Minister information or records, or a copy of records, the governing
body is keeping, or has control of, that are appropriate.
Subsection 82(2) explains that the purpose of the standard condition is to
help the Minister decide whether the institution is complying with the
national protocols and national guidelines.
Grounds for withdrawal of recognised authority
Clause 83 sets out the grounds for withdrawing a recognised authority,
namely -
(a) the institution is not complying, or has not complied, with the national
protocols and the national guidelines; or
(b) the governing body of the institution has contravened section 82 (i.e.
the standard condition of the recognised authority).
Subsection 83(2) provides that if the Minister reasonably believes a ground
exists for withdrawing a recognised authority, the Minister must follow the
process set out in part 9, division 1. That part requires the Minister to give
the holder of the recognised authority a show cause notice about the
Minister's proposal to withdraw the authority; to consider any written
representations about the show cause notice; and to take action to withdraw
the authority. That part also requires that the Minister must end the show
cause process without further action if the Minister no longer believes the
ground exists to withdraw the authority.
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Part 5 Overseas higher education
institutions
Division 1 Preliminary
Clause 84 sets out the definition of national guidelines for part 5, to mean
the document entitled `National Guidelines for Higher Education Approval
Processes--Guidelines for overseas higher education institutions seeking
to operate in Australia' that was approved by the Ministerial Council on 31
October 2007.
Limitation on operation of overseas higher education
institution
Clause 85 creates an offence for an overseas higher education institution to
offer a higher education course in Queensland unless the course is offered
under an approval under this part (i.e. as part of the institution's approval to
operate in Queensland).
Division 2 Application for approval
Procedural requirements for application
Clause 86 specifies the procedural requirements for applying to the
Minister for approval for an overseas higher education institution to operate
in Queensland.
Subsection 86(2) provides that the application must be in writing; state the
courses the institution proposes to offer in the State; if a course is to be
offered under an arrangement with a partner or agent of the institution -
state the name of the partner or agent and details of the arrangement;
include the information required to be provided under the national
guidelines; and be accompanied by the prescribed fee.
Further information or document to support application
Clause 87 provides that the Minister may, by notice given to the applicant,
require the applicant to give further information or a document which may
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reasonably be required for the Minister to decide the application. If the
applicant fails to provide the requested information or document within the
time stated in the notice, then the applicant is taken to have withdrawn the
application.
Decision on application
Clause 88 requires the Minister to consider the application and either grant,
or refuse to grant, the application. Subsection 88(2) provides that the
Minister may only grant the application if satisfied that the entity complies
with the national protocols and national guidelines.
Subsection 88(3) provides that in deciding the application, the Minister
may examine the proposed operation of the entity in the State; and make
any other enquiries the Minister considers appropriate. This provision
empowers the Minister to examine the proposed operations of the
institution within Queensland, if necessary.
Subsection 88(4) provides that if the Minister decides to grant the
application, the Minister must also decide the courses for which the
approval is to be given. In addition, if the institution is going to offer a
course under an arrangement with a partner or agent, the Minister must
approve the partner or agent and details of the arrangement.
Subsection 88(5) requires that, if the Minister grants the application, the
Minister must as soon as practicable give the applicant a notice of the
decision. If the Minister decides to refuse to grant the application, then
subsection 88(6) requires that the applicant be given an information notice.
If the Minister fails to decide the application within 18 months after its
receipt, then subsection 88(7) provides that the Minister is taken to have
decided to refuse to grant the application. The Minister must, as soon as
practicable, give the applicant an information notice in accordance with
clause 135.
However, subsection 88(8) provides that subsection 88(7) is subject to
section 89. Therefore, if the Minister and the applicant agree under section
89 to extend the day by which the decision is to be made, subsection 88(7)
is subject to section 89.
Further consideration of application
Clause 89 enables the Minister to extend the decision-making period
beyond 18 months, if more time is needed due to the complexity of the
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matters that must be considered. However, the Minister and the applicant
must agree in writing on a later day by which the decision must be made
(the agreed extended day), and this written agreement must occur before
the day that is 18 months after the application was received by the Minister
(the final consideration day).
Subsection 89(3) provides that the decision-making period can be further
extended to a later day, if necessary (the further extended day). However,
once again, the Minister and the applicant must agree in writing on the
further extended day by which the decision must be made, and this
agreement must occur before the agreed extended day.
Subsection 89(4) provides that the Minister is taken to have decided to
refuse to grant the application if the Minister fails to make the decision by
the agreed extended day; or the further extended day, as applicable.
Term of approval
Clause 90 provides that an approval under section 88 (i.e. an approval for
an overseas higher education institution to operate in Queensland) remains
in force for the term of not more than 5 years stated in the notice given to
the applicant under section 88(5).
Standard condition
Clause 91 sets out the standard condition applying to an approval, namely
that the governing body of the overseas higher education institution that
holds the approval must -
(a) allow the Minister to enter a place at any reasonable time to examine
the operation of the institution in the State; and
(b) comply with all reasonable requests by the Minister to give the
Minister information or records, or a copy of records, the governing
body is keeping, or has control of, that are appropriate.
Subsection 91(2) explains that the purpose of the standard condition is to
help the Minister decide whether the institution is complying with the
national protocols and national guidelines; or whether the institution and its
governing body are complying with any other conditions of the approval.
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Imposition of conditions
Clause 92 enables the Minister to impose conditions on the approval that
are relevant and reasonable. If the Minister decides to impose conditions,
the Minister must provide an information notice to the applicant as soon as
practicable.
Division 3 Renewal of approval
Procedural requirements for applying for renewal
Clause 93 provides that the governing body of an overseas higher education
institution that holds an approval under section 88 may apply to the
Minister for renewal of the approval. However, the application must be
made within the period starting 18 months and ending 9 months before the
term of the approval ends. This is to ensure that there is a minimum period
of at least 9 months (possibly longer, depending upon when the renewal
application is submitted) before the end of the term of the approval, within
which the Minister can consider the application for renewal. This minimum
period is considered necessary due to the complexity of the matters that
must often be considered.
Subsection 93(2) sets out how the renewal application must be made,
including that it be in writing; include the information required to be
provided under the national guidelines; and be accompanied by the
prescribed fee.
Subsection 93(3) applies section 87 to an application under this section.
Please see clause 128, which explains how an applied provision operates.
In this case, section 87 applies to the application to provide the Minister
may, by notice given to the applicant, require the applicant to give further
information or a document which may reasonably be required for the
Minister to decide the application. If the applicant fails to provide the
requested information or document within the time stated in the notice,
then the applicant is taken to have withdrawn the application for renewal.
Decision on application
Clause 94 requires the Minister to consider the application and either grant,
or refuse to grant, the application. Subsection 94(2) provides that the
Minister may only grant the application if satisfied that the institution is
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complying with the national protocols and national guidelines; and the
institution and its governing body are complying with any conditions of the
approval.
Subsection 94(3) provides that in deciding the application, the Minister
may examine the operation of the institution in the State; and make any
other enquiries the Minister considers appropriate. This provision
empowers the Minister to examine the operations of the institution in
Queensland, if necessary.
Subsection 94(4) applies sections 88(5) to (8) and 89 to the making of a
decision under this section. Therefore, if the Minister grants the
application, the Minister must as soon as practicable give the applicant a
notice of the decision. If the Minister decides to refuse to grant the
application, then the Minister must give the applicant an information
notice.
If the Minister fails to decide the application within 18 months after its
receipt, then the Minister is taken to have decided to refuse to grant the
application. The Minister must, as soon as practicable, give the applicant an
information notice in accordance with clause 135. However, this is subject
to clause 89, which provides that the Minister and the applicant may agree
to extend the day by which the decision is to be made.
Term of renewed approval
Clause 95 provides that the term of an approval, renewed under section 94,
remains in force for the term of not more than 5 years stated in the notice
given to the applicant under section 88(5) as applied by section 94(4).
Conditions of a renewed approval
Clause 96 applies sections 91 and 92 to a renewed approval to operate an
overseas higher education institution in the State. Therefore, the standard
condition set out in section 91 applies to the renewed approval to require
that the governing body of the institution must -
(a) allow the Minister to enter a place at any reasonable time to examine
the operation of the institution in the State; and
(b) comply with all reasonable requests by the Minister to give the
Minister information or records, or a copy of records, the governing
body is keeping, or has control of, that are appropriate.
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The purpose of the standard condition is to help the Minister decide
whether the institution is complying with the national protocols and
national guidelines; or the institution and its governing body are complying
with any other conditions of the approval.
In addition, the application of section 92 provides that the Minister may
impose conditions on a renewed approval that are relevant and reasonable.
If the Minister decides to impose conditions, the Minister must provide an
information notice to the applicant as soon as practicable. Subsection 96(2)
clarifies that imposing a condition on a renewed approval includes
changing or confirming a condition that had been imposed on the original
approval.
Approval taken to be in force while application is considered
Clause 97 provides that if an application for renewal of an approval is made
under section 93, then the approval is taken to continue in force from the
day that it would have expired until either -
(a) if the Minister decides to renew the approval - the day a notice about
the decision is given to the applicant under section 88(5) as applied by
section 94(4); or
(b) if the Minister decides to refuse to renew the approval -
(i) the last day to appeal against the decision; or
(ii) if an appeal is instituted against the decision - the day the appeal
is decided.
This ensures that if there is any delay in deciding the application for
renewal such that the decision cannot be made prior to the day the term of
the approval is due to end, then the approval can continue in force until the
matter of renewal has been decided.
Subsection 97(2) confirms that the approval is not taken to be in force if it
is earlier cancelled.
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Division 4 Cancellation of approval
Grounds for cancellation
Clause 98 sets out the grounds for cancelling an overseas higher education
institution's approval to operate in the State, namely -
(a) the institution -
(i) is not complying, or has not complied, with the national
protocols and the national guidelines; or
(ii) has contravened a condition of the approval;
(b) the governing body of the institution, or the institution
(i) has contravened a condition of the approval; or
(ii) has made a major change to the operation of the institution in the
State without the Minister's approval under section 102; or
(iii) has not given the Minister notice of a change under section 103;
or
(iv) has not given the Minister an annual report under section 105;
(c) the Minister's decision to grant or renew the approval was based on
false or misleading information.
Subsection 98(2) provides that if the Minister reasonably believes a ground
exists for cancelling an approval, the Minister must follow the process set
out in part 9, division 1. That part requires the Minister to give the holder of
the approval a show cause notice about the Minister's proposal to cancel
the approval; to consider any written representations about the show cause
notice; and to take action to cancel the approval. That part also requires that
the Minister must end the show cause process without further action if the
Minister no longer believes the ground exists to cancel the approval.
Division 5 Changes to conditions of approval
Changing conditions of approval
Clause 99 provides that the Minister may change the conditions of an
approval to operate an overseas higher education institution in Queensland,
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imposed by the Minister, if there is a reasonable basis to do so. However,
before deciding to change the conditions, the Minister must give notice to
the holder of the approval. The notice must include the particulars of the
proposed change; and advise that the holder may make written submissions
about the proposed change within a reasonable period of at least 21 days
stated in the notice.
Subsection 99(2)(b) provides that the Minister must have regard to written
submissions made by the holder of the approval before the end of the day
stated in the notice.
Subsection 99(3) provides that if the Minister decides to change the
conditions, then the Minister must, as soon as practicable, provide the
holder of the approval with an information notice about the decision.
Subsection 99(4) states that the decision to change the conditions does not
take effect until -
(a) the last day to appeal against the decision; or
(b) if an appeal is instituted against the decision - the day the appeal is
decided.
Subsection 99(5) provides that the power of the Minister to change
conditions includes the power to add conditions to an approval not already
subject to conditions.
Division 6 Major changes to overseas higher
education institutions
Application for approval to make major change
Clause 100 provides that the governing body of an overseas higher
education institution that holds an approval to operate in Queensland may
apply to the Minister for approval to make a major change to the operation
of the institution in the State. The application must be in writing; include
the information required to be provided under the national guidelines; and
be accompanied by the prescribed fee.
Meaning of major change
Clause 101 states that a major change, to the operation of an overseas
higher education institution in the State, means a change that -
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(a) may affect the institution's capacity to comply with the national
protocols and the national guidelines; and
(b) is described as a major change in the national guidelines.
Subsection 101(2) provides examples of what are major changes to the
operation of an overseas higher education in the State. A major change
includes -
(a) a merger of the institution, in the State, with another entity; or
(b) a change to offer a course other than a course approved under this
part; or
(c) a change in the arrangement under which a course is approved to be
offered, including the addition of a new partner or agent; or
(d) a change that may result in a significant decline in the financial
position of the institution.
Decision on application
Clause 102 requires the Minister to consider the application and either
grant, or refuse to grant, the application. Subsection 102(2) provides that
the Minister may only grant the application if satisfied that the institution
will comply with the national protocols and national guidelines after the
change is effected.
Subsection 102(3) provides that in deciding the application, the Minister
may examine the operation of the institution in the State; and make any
other enquiries the Minister considers appropriate. This provision
empowers the Minister to examine the operations of the institution,
including its operations in Queensland, if necessary.
Subsection 102(4) requires that, if the Minister grants the application, the
Minister must as soon as practicable give the applicant a notice of the
decision. The notice must state the decision; and the day by which the
change must be effected. If the Minister decides to refuse to grant the
application, then subsection 102(5) requires that the applicant be given an
information notice.
If the Minister fails to decide the application within 6 months after its
receipt, then subsection 102(6) provides that the Minister is taken to have
decided to refuse to grant the application. The Minister must, as soon as
practicable, give the applicant an information notice in accordance with
clause 135.
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However, subsection 102(7) applies section 89 to the making of the
decision. Therefore, if necessary, the Minister and the applicant may agree
under section 89 to extend the day by which the decision is to be made. It
should also be noted that subsection 102(8) provides that in applying
section 89, the final consideration day will be the day that is 6 months
after the application to make a major change was received by the Minister.
Division 7 Other changes to overseas higher
education institutions
Notification of other changes to overseas higher education
institutions
Clause 103 requires that the governing body of an overseas higher
education institution that holds an approval under this part to operate in
Queensland must give the Minister notice about certain other changes,
namely -
(a) a change to -
(i) the status or approval of the institution in its country of origin; or
(ii) the basis on which the institution is established or operates in its
country of origin;
(b) a change to -
(i) the status or approval of a course offered by the institution in its
country of origin; or
(ii) the basis on which the institution offers a course in its country of
origin;
if the course is also offered in the State;
(c) a merger of the institution with another entity in the institution's
country of origin.
The governing body must give the notice within 14 days after the change or
merger happens.
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Division 8 Other provisions
Conferring of higher education award by overseas higher
education institution
Clause 104 creates an offence for an overseas higher education institution
to confer, or hold out that it is authorised to confer, a higher education
award unless the institution is approved, under this part, to offer the course
leading to the award.
Subsection 104(2) creates an offence for a person to hold out that an
overseas higher education institution is authorised to confer a higher
education award unless the institution is approved, under this part, to offer
the course leading to the award.
Annual report
Clause 105 requires the governing body of an overseas higher education
institution to give the Minister an annual report on or before 31 May in
each year.
Subsection 105(2) requires that the annual report must be given in the way
required by the Minister; and must cover the period from the previous 1
January to 31 December. In addition, the annual report must contain
information to help the Minister assess whether -
(i) the institution is -
(A) operating within its approval; and
(B) complying with the national protocols and national guidelines;
and
(ii) the institution and its governing body are complying with the
conditions of the approval.
A fee is also payable for the assessment of the annual report, and this fee
must be submitted with the annual report. Subsection 105(4) provides that
the annual report is taken not to have been given until the assessment fee
has been paid.
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Part 6 Appeals
Who may appeal
Clause 106 states that a person who is given, or is entitled to be given, an
information notice for a decision of the Minister (i.e. the original decision)
may appeal against the decision to the District Court. Further details about
the appeals process are contained within part 6 (see below). However, it
should be noted that the provisions must be read in conjunction with the
Uniform Civil Procedure Rules 1999, which deal with appeals to the
District Court.
Starting appeals
Clause 107 states that an appeal may be started at the District Court at the
place where the appellant resides or carries on business; or at the District
Court at Brisbane. Subsection 107(2) specifies the timeframes for filing the
notice of appeal. However, subsection 107(3) provides that the court has
power to extend the timeframes for filing the notice.
Hearing procedures
Clause 108 specifies the powers that the District Court has in deciding an
appeal, that is that the court -
(a) has the same powers as the Minister; and
(b) is not bound by the rules of evidence; and
(c) must comply with natural justice.
Subsection 108(2) provides that an appeal is by way of rehearing,
unaffected by the original decision, on the material before the Minister and
any further evidence allowed by the court.
Powers of court on appeal
Clause 109 sets out the powers the court has when deciding the appeal. The
court may confirm the original decision; or amend the original decision; or
substitute another decision for the original decision; or set aside the
original decision and return the issue to the Minister with directions the
court considers appropriate.
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Subsection 109(2) states that if the court decides to substitute another
decision for the original decision, the court has the same powers as the
Minister. For example, when hearing an appeal from a decision of the
Minister to refuse to register an entity as a non self-accrediting higher
education institution, the court may decide to register the entity. Likewise,
when hearing an appeal from a decision of the Minister to refuse to accredit
a course proposed to be offered by a non self-accrediting higher education
institution, the court may decide to accredit the course and may decide to
accredit it on particular conditions.
Subsection 109(3) clarifies that if the court amends the original decision or
substitutes another decision for it, the amended or substituted decision is
taken to be the decision of the Minister.
Part 7 Evidence and legal proceedings
Division 1 Evidence
Evidentiary aids
Clause 110 specifies those matters which do not have to be proved in a
proceeding under the Act, or which are considered to be evidence of those
matters.
Division 2 Proceedings
Summary proceedings for offences
Clause 111 provides that proceedings for offences against the Act must be
dealt with as summary offences under the Justices Act 1886. Subsection
111(2) specifies that a proceeding must start within whichever is the longer
of the following:
(a) 1 year after the commission of the offence; or
(b) within 6 months after the offence comes to the complainant's
knowledge, but within 2 years after the commission of the offence.
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Responsibility for acts or omissions of representatives
Clause 112 sets out the responsibility of representatives in relation to acts
or omissions associated with a proceeding for an offence against the Act.
Subsection 112(2) provides that, if it is relevant to prove a person's state of
mind about an act or omission, it is enough to show that the act was done or
omitted to be done by the person's representative, if the representative was
acting within the scope of the representative's authority; and the
representative had the state of mind.
Subsection 112(3) states that an act done or omitted to be done for a person
by a representative is taken to have been done or omitted to be done also by
the person. However, the person has a defence if the person proves that they
could not, by the exercise of reasonable diligence, have prevented the act or
omission.
Executive officers must ensure corporation complies with Act
Clause 113 places an obligation on the executive officers of a corporation
to ensure that the corporation complies with the Act. Therefore, if a
corporation commits an offence against the Act, an offence is also
committed by each of the corporation's executive officers. The offence
committed by the executive officers is the offence of failing to ensure the
corporation complies with the relevant provision of the Act.
However, subsection 113(4) provides that it is a defence for an executive
officer to prove that he or she exercised reasonable diligence to ensure that
the corporation complied with the relevant provision of the Act; or that they
were not in a position to influence the conduct of the corporation in relation
to the offence.
Part 8 Offences
Definitions for pt 8
Clause 114 sets out the definition of the terms relevant educational
institution and type of specialisation for part 8.
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Self-accrediting higher education institution
Clause 115 creates an offence for a person, in relation to a relevant
educational institution, to use a title that consists of, or includes, the words
"self-accrediting higher education institution" to promote the institution's
operations in the State unless it is -
(a) a self-accrediting higher education institution; or
(b) an interstate self-accrediting higher education institution that holds a
recognised self-accrediting authority.
Subsection 115(2) provides that it is an offence for a person to hold out a
relevant educational institution as being a self-accrediting higher education
institution operating in the State unless it is -
(a) a self-accrediting higher education institution; or
(b) an interstate self-accrediting higher education institution that holds a
recognised self-accrediting authority.
Subsection 115(3) creates an offence for a person to hold out that a
self-accrediting higher education institution is authorised to operate in a
way that is outside the scope of its self-accrediting authority.
Subsection 115(4) creates an offence for a person to hold out that an
interstate self-accrediting higher education institution that holds a
recognised self-accrediting authority is authorised to operate in a way that
is outside the scope of its recognised self-accrediting authority.
University title
Clause 116 creates an offence for a person to use a title that consists of, or
includes, the word "university" in relation to a relevant educational
institution, unless the institution is a university; or an interstate university;
or an overseas university. For example, an educational college that is not a
university would commit an offence if it calls its premises a "university".
However, the provision does not prevent the term "university" from being
used for the purposes of naming a particular place if the place is not an
educational institution (e.g. "University Avenue").
However, subsection 116(2) provides that this offence does not apply
where the word "university" is used in the following circumstances:
(a) in relation to a specialised university, or an interstate specialised
university, a title that includes the type of specialisation; or
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(b) in relation to a university college, or an interstate university college, a
title that includes the words "university college"; or
(c) in relation to a specialised university college, or an interstate
specialised university college, a title that includes its type of
specialisation and the words "university college".
Subsection 116(3) creates an offence for a person to hold out a relevant
educational institution as being a university unless it is a university; or an
interstate university; or an overseas university.
However, subsection 116(4) provides that the offence in subsection 116(3)
does not apply by holding out a specialised university, or an interstate
specialised university, as a university for the field of study that is its type of
specialisation. Nor does the offence apply to the holding out of a university
college, or an interstate university college, as a university college. Also, the
offence does not apply to the holding out of a specialised university
college, or an interstate specialised university college, as a university
college for the field of study that is its type of specialisation.
Subsection 116(5) specifically states that the offences in this clause do not
apply to the educational institution known as "University of the Third
Age".
Specialised university title
Clause 117 creates an offence for a person, in relation to a specialised
university or an interstate specialised university, to use a title to identify the
specialised university or interstate specialised university, unless the title
includes its type of specialisation (for example "The Brisbane University of
the Performing Arts").
University college title
Clause 118 creates an offence for a person, in relation to a university
college or an interstate university college, to use a title to identify the
university college or interstate university college, unless the title includes
the words "university college".
Specialised university college title
Clause 119 creates an offence for a person, in relation to a specialised
university college or an interstate specialised university college, to use a
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title to identify the specialised university college or the interstate
specialised university college, unless the title includes its type of
specialisation and the words "university college" (for example "The
Townsville University College of Marine Biology").
Restriction on operating a higher education institution
Clause 120 creates an offence for a person to operate, or hold out that the
person operates, a higher education institution in the State unless the
institution is -
(a) a non self-accrediting higher education institution; or
(b) a self-accrediting higher education institution; or
(c) an interstate self-accrediting higher education institution that holds a
recognised self-accrediting authority; or
(d) a university, specialised university, university college or specialised
university college; or
(e) an interstate university, interstate specialised university, interstate
university college or interstate specialised university college that
holds a recognised authority; or
(f) an overseas higher education institution that holds an approval under
part 5.
Please note that the Act's dictionary in schedule 2 defines what operating
means in relation to a higher education institution.
Conferring of higher education award without course being
undertaken
Clause 121 creates an offence for a person, other than a relevant entity, to
confer a higher education award on another person unless the other person
has undertaken a course leading to the award.
Subsection 121(2) defines the term relevant entity to mean -
(a) a university; or
(b) a specialised university; or
(c) an interstate university that holds a recognised authority; or
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(d) an interstate specialised university that holds a recognised authority;
or
(e) an overseas university that holds an approval under part 5.
This offence should be read in context with the offence provisions in clause
39 (Conferring of higher education award by non self-accrediting higher
education institution), clause 64 (Conferring of higher education award by
self-accrediting higher education institution), clause 72 (Conferring of
higher education award by interstate self-accrediting higher education
institution) and clause 104 (Conferring of higher education award by
overseas higher education institution).
Part 9 Miscellaneous provisions
Division 1 Show cause process
Definitions for div 1
Clause 122 sets out the definitions for division 1.
Application of div 1
Clause 123 provides that division 1 applies if the Minister reasonably
believes a ground exists for cancelling a relevant authority.
Show cause notice
Clause 124 requires the Minister to give the holder of the relevant authority
a show cause notice. The show cause notice must state the following -
(a) that the Minister proposes to cancel the relevant authority (the
proposed action);
(b) the ground for the proposed action;
(c) an outline of the facts and circumstances forming the basis for the
ground;
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(d) an invitation to the holder to show, within a stated period of time (the
show cause period), why the Minister should not take the proposed
action.
To provide the holder of the relevant authority with sufficient time to
respond to the show cause notice, the show cause period must be at least 30
days after the show cause notice is given to the holder of the relevant
authority (subsection 124(3)).
Representations about show cause notice
Clause 125 provides that the holder of the relevant authority may make
written representations about the show cause notice, within the show cause
period. Subsection 125(2) provides that the Minister must consider all
written representations (the accepted representations). This ensures that
the Minister gives consideration to any, and all, documented submissions
made by the holder about the show cause notice.
Ending show cause process without further action
Clause 126 sets out the circumstances in which a show cause process must
be ended without further action. If, after considering the accepted
representations, the Minister no longer believes the ground exists to cancel
the relevant authority, the Minister must not take further action about the
show cause notice; and must, as soon as practicable, give notice to the
holder of the relevant authority that no further action will be taken about
the show cause notice.
Cancellation of relevant authority
Clause 127 provides that the Minister may decide to cancel the relevant
authority if, after considering any accepted representations, the Minister
still believes the ground exists to cancel the relevant authority; and believes
that cancellation of the relevant authority is warranted. Subsection 127(2)
provides that this also applies if there were no accepted representations
about the show cause notice.
Subsection 127(4) provides that the Minister must, as soon as practicable,
give the holder of the relevant authority an information notice about the
decision to cancel the relevant authority.
Subsection 127(5) provides that the decision to cancel the relevant
authority does not take effect until -
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(a) the last day to appeal against the decision; or
(b) if an appeal is instituted against the decision - the day the appeal is
decided.
Division 2 Other provisions
Applied provisions
Clause 128 provides that if a provision of the Act (an applied provision)
applies under another provision, the applied provision must be read with
the changes necessary or convenient for the other provision to have effect.
For example, section 15 applies section 9 (an applied provision) to an
application under section 15. Section 9 applies as if a reference in section 9
to an application were a reference to an application under section 15.
Protection from liability
Clause 129 provides for protection from civil liability for the Minister for
acts done, or omissions made, honestly and without negligence under the
Act. The liability attaches instead to the State.
Disclosure of information to relevent entities
Clause 130 provides that the Minister may disclose information obtained in
the course of administering the Act, or the repealed Act, to the entities
listed in subsection 130(2). However, the Minister may only disclose the
information if the Minister considers that doing so is necessary for the
relevent entity to perform its functions.
Information may be disclosed to the following entities -
(a) an entity listed as a government accreditation authority on the AQF
Register;
(b) a designated authority under the Education Services for Overseas
Students Act 2000 (Cwlth);
(c) a person involved in the administration of the Education Services for
Overseas Students Act 2000 (Cwlth);
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(d) a person involved in the administration of the Higher Education
Support Act 2003 (Cwlth).
Committees and other sources of advice
Clause 131 provides that the Minister may establish committees to advise
the Minister on deciding applications under the Act; and any other matter
under the Act referred to the committee by the Minister.
Subsection 131(2) also clarifies that the Minister may seek advice on any
matter under the Act from any other person the Minister considers has
appropriate knowledge or experience of the matter.
Guidelines
Clause 132 states that the Minister may make guidelines for the Act.
Subsection 132(2) sets out matters about which guidelines may be made.
However, guidelines are not limited to those matters.
Subsection 132(3) provides that a guideline may be replaced or varied by a
later guideline.
Subsections 132(4) and (5) require the chief executive to keep a copy of a
guideline available for inspection at the head office of the department, and
at any other place the chief executive considers appropriate; and permit a
person to inspect the guideline and take extracts from it without fee.
Subsection 132(6) provides that the chief executive must keep a copy of the
guideline available for supply and permit a person to obtain a copy of the
guideline (or part of it) without fee.
Subsection 132(7) provides that the chief executive must also keep a copy
of the guideline posted on the department's web site, which is
www.deta.qld.gov.au.
Delegation by Minister
Clause 133 empowers the Minister to delegate the Minister's functions
under the Act to an appropriately qualified public service employee.
Subsection 133(2) states that the term appropriately qualified, for a public
service employee to whom a function may be delegated, includes having
the qualifications, experience or standing appropriate for the function.
Subsection 133(2) also states that functions includes powers.
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Annual report
Clause 134 requires the Minister to prepare an annual report about the
operation of the Act as soon as practicable after the end of each financial
year. The Minister must also lay a copy of the annual report before the
Legislative Assembly.
Failure to decide application
Clause 135 clarifies that if the Minister is taken to have decided to refuse to
grant an application under the Act, then, to remove any doubt, the Minister
is required to give the applicant an information notice about that decision
as soon as practicable.
Approval of forms
Clause 136 provides that the Minister may approve forms for use under the
Act.
Regulation-making power
Clause 137 provides that the Governor in Council may make regulations
under the Act.
Subsection 137(2) provides that without limiting subsection (1), a
regulation may be made about the following -
(a) the fees payable under the Act and the matters for which fees are to be
paid, including fees for the Minister to do either of the following in
deciding an application -
(i) examine the operation or proposed operation of a higher
education institution;
(ii) make any other enquiries the Minister considers appropriate;
(b) the recovery, waiving or refunding of fees;
(c) imposing a penalty of not more than 20 penalty units for contravention
of a regulation.
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Part 10 Repeal and transitional
provisions
Division 1 Repeal
Repeal
Clause 138 repeals the Higher Education (General Provisions) Act 2003.
Division 2 Transitional provisions
Definitions for div 2
Clause 139 sets out the definitions for division 2.
References to repealed Act
Clause 140 states that if an Act or a document refers to the repealed Act
(i.e. the Higher Education (General Provisions) Act 2003), it may, if the
context permits, be taken to be a reference to the new Act (i.e. the Higher
Education (General Provisions) Act 2008).
Application for approval to be established or recognised as a
university
Clause 141 provides that if an application under part 2 of the repealed Act
(i.e. an application for approval that an institution is suitable to be
established or recognised, under an Act, as a university) is not finally
decided before the commencement, it is taken to be an application under
part 4 of the new Act and must be decided under the new Act.
Approval to operate overseas higher education institution
Clause 142 provides that an overseas higher education institution that held
an approval to operate under part 3 of the repealed Act is taken to hold an
approval under part 5 of the new Act (i.e. it has a continuing approval to
operate). The continuing approval is subject to any conditions applying
under the repealed Act. It remains in force until it would have expired
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under the repealed Act, or is earlier cancelled or renewed under the new
Act.
Application for approval to operate overseas higher education
institution
Clause 143 provides that if an application under part 3 of the repealed Act
(i.e. an application for approval to operate as an overseas higher education
institution) is not finally decided before the commencement, it is taken to
be an application under part 5 of the new Act and must be decided under
the new Act.
Cancellation of approval to operate overseas higher education
institution
Clause 144 provides that if, before the commencement, a show cause
process had started in relation to an approval to operate an overseas higher
education institution and the show cause process had not been completed, it
can be completed under part 9, division 1 of the new Act.
However, subsection 144(3) provides that if the show cause process had
started because there had been a change, without the Minister's approval, to
a key detail mentioned in the institution's operational plan, then the show
cause process lapses on the commencement. This is because the new Act
does not contain a requirement for an overseas higher education institution
to have its operational plan approved by the Minister.
References to non-university provider
Clause 145 states that if an Act or a document refers to a non-university
provider, it may, if the context permits, be taken to be a reference to a non
self-accrediting higher education institution.
Non-university provider taken to be non self-accrediting higher
education institution
Clause 146 provides that if a non-university provider held an accreditation
for 1 or more higher education courses under part 4 of the repealed Act,
then, on the commencement -
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(a) the provider is taken to hold registration under part 2 of the new Act as
a non self-accrediting higher education institution (a deemed
registration); and
(b) each existing accreditation is taken to be an accreditation under part 2
of the new Act for the institution (a continuing accreditation).
Subsection 146(3) provides that if an accreditation was subject to
conditions under the repealed Act, then the continuing accreditation is
subject to the same conditions under the new Act.
Subsection 146(4) provides that a deemed registration expires when the
term of all continuing accreditations has ended (i.e. the day all the
continuing accreditations would have expired under the repealed Act).
However, this only applies unless the deemed registration is earlier
cancelled or renewed under the new Act.
Subsection 146(6) provides that a continuing accreditation expires when it
would have expired under the repealed Act, unless it is earlier cancelled or
renewed under the new Act.
Application for accreditation of higher education course
Clause 147 provides that if an application made under part 4 of the repealed
Act (i.e. an application for accreditation of a higher education course
proposed to be offered by a non-university provider) is not finally decided
before the commencement, it must be decided under the repealed Act.
Given that the application would have been prepared in accordance with
the previous National Protocols, it is considered that it would be a difficult
process to assess the application with regard to the new National Protocols.
Therefore, it has been decided that the application should be assessed and
decided under the provisions of the repealed Act.
Subsection 147(3) provides that if the Minister decides to grant the
application for accreditation of the course, then -
(a) if section 146(1) does not apply (i.e. the non-university provider did
not also hold any existing accreditations) then the provider is taken to
hold registration under part 2 of the new Act as a non self-accrediting
higher education institution (a deemed registration); and
(b) the accreditation granted is taken to be an accreditation under part 2 of
the new Act for the non self-accrediting higher education institution.
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Subsection 147(4) provides that a deemed registration under this section
expires when the term of the accreditation granted under subsection (3)(b)
ends. However, this only applies unless the deemed registration is earlier
cancelled or renewed under the new Act.
Subsection 147(6) states that if the Minister refuses to grant the application
for accreditation of the course, then the applicant has the right of appeal
that applied under the repealed Act.
Subsection 147(7) provides that, if, on appeal, the court amends the
original decision, or substitutes another decision for the original decision,
that decision is, for this section, taken to be the decision of the Minister.
Cancellation of accreditation of an accredited course
Clause 148 provides that if, before the commencement, a show cause
process had started in relation to an existing accreditation and the show
cause process had not been completed, it can be completed under part 9,
division 1 of the new Act.
Approval to operate interstate university
Clause 149 provides that if, before the commencement, the governing body
of an interstate university held an approval under part 5 of the repealed Act
(i.e. an existing approval to operate the university in Queensland under an
agency arrangement), then that existing approval to operate is taken to be a
recognised authority under part 4 of the new Act. This enables the
university to continue to operate in Queensland.
It should be noted that it is no longer necessary for an interstate university
to obtain specific approval to operate in Queensland under an agency
arrangement. Consequently, the recognised authority under part 4 of the
new Act applies irrespective of whether the university is operating in
Queensland under an agency arrangement.
Application for approval to operate interstate university
Clause 150 provides that an application made under part 5 of the repealed
Act (i.e. an application for approval to operate an interstate university in
Queensland under an agency arrangement) lapses on the commencement.
The application lapses because it is no longer a requirement that an
interstate university, intending to operate in Queensland under an agency
arrangement, obtain the Minister's approval to do so. The interstate
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university will be able to operate in Queensland automatically under a
recognised authority under part 4 of the new Act.
Cancellation of approval to operate interstate university
Clause 151 provides that if, before the commencement, a show cause
process had started in relation to an existing approval to operate an
interstate university in Queensland under an agency arrangement, and the
show cause process had not been completed, it can be completed under part
9, division 1 of the new Act.
Appeals
Clause 152 provides for the continuation or commencement of appeals to
the District Court under the repealed Act.
Offences
Clause 153 provides for the continuation or commencement of proceedings
for an offence against the repealed Act, as if the new Act had not
commenced.
Part 11 Amendment of Education
(General Provisions) Act 2006
Act amended in Pt 11
Clause 154 provides that part 11 amends the Education (General
Provisions) Act 2006.
Amendment of s 52 (Fee for distance education provided by a
State school)
Section 52 of the Education (General Provisions) Act 2006 (the EGPA)
provides that a fee may be charged for the provision of distance education
by a State school.
Clause 155 amends section 52(1)(b) of the EGPA to give effect to the
original policy intention of the section by clarifying the head of power to
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charge a fee in relation to non-State school students who undertake a
component of a program of distance education at a State school.
Following commencement of the amendments, section 52(1)(b) will
capture all persons, other than State school students, who undertake a
component of a program of distance education at a State school.
A "component of a program" of distance education, which is less than a
full "program", could be a single subject or a number of subjects.
The reference to "a person, other than a State school student" in section
52(1)(b) of the EGPA ensures that in addition to applying to non-State
school students, the section continues to apply to any other person, other
than a State school student, who is undertaking a "component of a
program" by distance education, for example an adult learner undertaking a
course in French by distance education.
State school students are expressly excluded from section 52(1)(b) of the
EGPA.
Clause 155 omits the definition of "non-State school student" in section
52(3) of the EGPA, which is no longer required following the amendment
to section 52(1)(b).
Amendment of s 54 (Waiver of fee for distance education)
Clause 156 amends sections 54(1)(b), 54(2)(a) and 54(2)(b) of the EGPA to
make consequential amendments required as a result of the amendments to
section 52(1)(b) of the EGPA.
The amendments ensure that any person to whom section 52(1)(b) of the
EGPA applies, including a non-State school student who undertakes a
component of a program of distance education at a State school, can apply
for a waiver under section 54(1)(b) of the EGPA.
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Part 12 Amendment of Vocational
Education, Training and
Employment Act 2000
Act amended in Pt 12
Clause 157 provides that part 12 amends the Vocational Education,
Training and Employment Act 2000.
Amendment of s 168 (Council's functions)
Section 168 of the Vocational Education, Training and Employment Act
2000 (the VETE Act) outlines the functions of the Training Employment
and Recognition Council, a council established under section 167 of VETE
Act.
Clause 158 amends section 168 of the VETE Act to ensure that the
functions of the Training Employment and Recognition Council extend to
principal employer organisations.
Amendment of s 221 (Recognition of group training
organisation)
Under section 221(1) of the VETE Act, the Training Employment and
Recognition Council may, by signed notice to a corporation, recognise the
corporation as a group training organisation (a GTO) for an industry, an
industry sector or an area.
Clause 159 amends section 221(1) of the VETE Act to ensure that
recognition of a corporation as a GTO is no longer restricted to an industry,
an industry sector or an area.
Insertion of new ch 7A
Clause 160 inserts a new Chapter 7A into the VETE Act. The purpose of
the new Chapter 7A is to facilitate recognition of a new group of
organisations known as principal employer organisations.
Under the new section 223A of the VETE Act, in order to be recognised as
a principal employer organisation, an entity must:
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Higher Education (General Provisions) Bill 2008
· conform with the requirements of the approved guidelines for a
principal employer organisation (a copy of which will be available on
the Department of Education, Training and the Arts' website);
· employ, or intend to employ, 25 or more apprentices or trainees for
placing under a hosting agreement; and
· not already be recognised as a GTO.
It should be noted that there is no requirement for a PEO to be a
corporation. As such, unlike a GTO, a PEO can be a sole trader or a
partnership.
Where an entity which is not recognised as a GTO or a PEO employs 25 or
more apprentices and/or trainees, the approved guidelines relating to the
registration of training contracts (refer to section 54 of the VETE Act) will
restrict the entity from registering any further training contracts until the
entity is recognised as either a GTO or PEO.
The terms "apprentice", "trainee" and "training plan" are already defined
in sections 9, 10 and 13 of the VETE Act respectively.
Under new section 223B of the VETE Act, a function of a principal
employer organisation is, by agreement between the organisation and
another entity, to arrange for the other entity to train, under a training plan,
an apprentice or trainee employed by the principal employer organisation.
New section 223C(1) of the VETE Act allows the Training Employment
and Recognition Council to withdraw recognition of an entity as a principal
employer organisation. Any withdrawal of recognition must be in
accordance with fair procedures prescribed under regulation.
If the Training Employment and Recognition Council withdraws the
recognition of an entity as a principal employer organisation, the new
section 223C(2) of the VETE Act provides that it must promptly provide
the entity with an information notice. The term "information notice",
which is used throughout the VETE Act, is already defined in Schedule 3
of the VETE Act.
Amendment of s 224 (Appeal to Magistrates Court)
Clause 161 amends section 224 of the VETE Act to ensure that a person
aggrieved by a decision about the recognition of a principal employer
organisation may appeal to the Magistrates Court.
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Insertion of new ch 10, pt 5
Clause 162 inserts a new Chapter 10 into the VETE Act, which includes a
transitional provision to cater for the amendments to section 221 of the
VETE Act.
The new section 344 of the VETE Act ensures that organisations which, at
the time of the commencement of this Bill are already recognised as GTOs,
are no longer limited to a particular industry, industry sector or area.
It should be noted that despite the fact existing GTOs are no longer
restricted to an industry, an industry sector or an area, GTOs which already
receive funding from the Queensland Government will not automatically
be entitled to receive funding for a new industry, industry sector or area.
Amendment of sch 3 (Dictionary)
Clause 163 inserts new definitions into schedule 3 of the VETE Act, which
are required in relation to the new section 223A of the VETE Act.
The term hosting arrangement is defined to mean an arrangement under
which a GTO or a principal employer organisation (each an organisation)
agrees in writing with another entity for -
(a) the organisation, for a fee, to hire out an apprentice or trainee
employed by the organisation to perform work for another entity; and
(b) the other entity to train the apprentice or trainee under a training plan.
The term principal employer organisation is defined by reference to the
new section 223A of the VETE Act.
Part 13 Amendment of other Acts
Acts amended in sch 1
Clause 164 provides that schedule 1 amends the Acts mentioned in it.
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Higher Education (General Provisions) Bill 2008
Schedule 1 Consequential and minor
amendments of other Acts
Schedule 1 provides for consequential amendments to be made to a number
of Acts to omit references to the Higher Education (General Provisions)
Act 2003 and to insert references to the Higher Education (General
Provisions) Act 2008.
Schedule 1 also provides for consequential amendments to be made to a
number of Acts to update definitions of terms such as education provider,
higher education entity and higher education institution, to capture the
new categories of higher education institutions that are permitted under the
new Higher Education (General Provisions) Act 2008.
Schedule 2 Dictionary
Schedule 2 sets out the dictionary terms used in the Act.
© State of Queensland 2008
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