Education Legislation Amendment (Provider Integrity and Other Measures) Bill 2017 [2017] AUSStaCSBSD 164 (14 June 2017)

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Purpose	This bill seeks to amend a number of Acts relating to higher education and education services for overseas students to: • amend the fit and proper provisions relating to the assessment of providers seeking registration to educate international students; • expand notifiable event requirements that a provider must report to Education Services for Overseas Students (ESOS) agencies; • extend information sharing provisions by allowing the Secretary of a department to share information with the Overseas Students Ombudsman; • allow the Secretary and ESOS agencies to share and publish information about the exercise of functions of education agents; • amend late payment penalties; • introduce a requirement that all registered higher education providers must be fit and proper persons; • amend the definition of 'qualified auditor'; • clarify that the Tertiary Education Quality and Standards Agency may delegate its functions or powers to the Chief Executive Officer; • clarify the definition of 'vocational training and education course'; • increase financial viability and transparency requirements including enhancing audit requirements for providers; • introduce more stringent provider application requirements; and • provide additional student protection mechanisms to FEE-HELP students
Portfolio	Education and Training
Introduced	House of Representatives on 1 June 2017
Scrutiny principles	Standing Order 24(1)(a)(ii) and (iv)

Significant matters in delegated legislation^[49]

1.65 Items 1 and 2 of Schedule 1 provide that the Minister may specify, in a legislative instrument, additional matters to which an Education Services for Overseas Students (ESOS) agency or designated State authority must have regard to in determining whether providers registered or applying to be registered are 'fit and proper persons'. The committee's view is that significant matters, such as the criteria for determining whether providers are fit and proper persons, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. The explanatory memorandum suggests that this delegation of legislative power is justified:

1.66 Although the importance of enabling regulators to operate with flexibility may be a legitimate reason in general for delegating legislative power, reasons why this is so in a particular instance requires detailed justification.

1.67 The committee requests the Minister's advice as to why flexibility is necessary in relation to setting the criteria as to whether providers are fit and proper persons, and seeks examples as to why 'market developments' mean that it is difficult to detail the relevant matters and circumstances in primary legislation.

Significant matters in delegated legislation^[51]

1.68 Item 4 of Schedule 2 proposes a new fit and proper person requirement for the purposes of the Tertiary Education Quality and Standards Agency Act 2011. It provides that in determining whether a person is a fit and proper person for the purposes of that Act, regard may be had to any matters specified by the Tertiary Education Quality and Standards Agency (TEQSA) in a legislative instrument. The explanatory memorandum states that regulatory determinations around whether a provider is a fit and proper person to be an approved provider 'is properly a matter for TEQSA'.^[52] However, no reasons are provided as to why these matters are more appropriate to be determined by TEQSA in a legislative instrument, rather than provided for in primary legislation.

1.69 The committee therefore requests the Minister's advice as to why it is more appropriate that the matters to be considered in determining whether a person is a fit and proper person are to be determined by TEQSA in a legislative instrument, rather than set out in primary legislation.

Broad delegation of administrative power^[53]

1.70 Proposed section 215-10 triggers the investigation powers under the Regulatory Powers (Standard Provisions) Act 2014 in relation to provisions of the Higher Education Support Act 2003. Proposed subsection 215-10(3) provides that an authorised person may be assisted 'by other persons' in exercising most powers or performing functions or duties in relation to investigation. The explanatory memorandum does not explain the categories of 'other persons' who may be granted such powers and the bill does not confine who may exercise the powers by reference to any particular expertise or training.

1.71 The committee therefore requests the Minister's advice as to why it is necessary to confer investigatory powers on any 'other person' to assist an authorised person and whether it would be appropriate to amend the bill to require that any person assisting an authorised person have specified skills, training or experience.

[49] Schedule 1, items 1 and 2. The committee draws Senators’ attention to these provisions pursuant to principle 1(a)(iv) of the committee’s terms of reference.

[51] Schedule 2, item 4. The committee draws Senators’ attention to this provision pursuant to principle 1(a)(iv) of the committee’s terms of reference.

[53] Schedule 3, item 37, proposed subsection 215-10(3). The committee draws Senators’ attention to this provision pursuant to principle 1(a)(ii) of the committee’s terms of reference.

Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests