Higher Education Legislation Amendment (Provider Category Standards and Other Measures) Bill 2020 [2020] AUSStaCSBSD 159 (7 October 2020)

• Higher Education Legislation Amendment (Provider Category Standards and Other Measures) Bill 2020
• Significant matters in delegated legislation1

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Higher Education Legislation Amendment (Provider Category Standards and Other Measures) Bill 2020

Purpose	This bill seeks to give effect to the Commonwealth Government's decision to implement recommendations arising from the Review of the Higher Education Quality and Standards Agency Act 2011, to give effect to an outstanding recommendation from the Review of the impact of the TEQSA Act on the higher education sector, and to improve regulation of Australia's higher education sector
Portfolio	Education
Introduced	House of Representatives on 2 September 2020

Significant matters in delegated legislation^[1]

1.34 Item 14 of Schedule 1 seeks to insert proposed subsection 58(1) into the Tertiary Education Quality and Standards Agency Act 2011 (TEQSA Act) to provide that the minister may, by legislative instrument, make standards that make up the Higher Education Standards Framework. This includes the Threshold Standards and other standards against which the quality of higher education can be assessed.

1.35 Item 15 of Schedule 1 seeks to insert proposed section 59A into the TEQSA Act to provide that if TEQSA is considering the Threshold Standards in relation to certain regulated entities or registered higher education providers, TEQSA must have regard to the quality of research undertaken by the entity or provider. Proposed subsection 59A(4) provides that TEQSA may, in writing, determine matters relating to the quality of research for the purpose of proposed section 59A. These matters must be approved by the minister and will be a legislative instrument (see proposed subsection 59A(7)).

1.36 The committee's view is that significant matters, such as the standards making up the Higher Education Standards Framework and how the quality of research undertaken by higher education providers will be assessed, should be in primary legislation unless a sound justification for the use of delegated legislation is provided. In this instance, the explanatory memorandum contains no justification regarding why it is necessary to allow such significant matters to be set out in delegated legislation.

1.37 The committee notes that since the Higher Education Standards Framework (Threshold Standards) 2011 were made on 22 December 2011 following the passage of the TEQSA Act, the Threshold Standards have only been amended twice.^[2] It is therefore unclear to the committee why these important standards, which are central to the regulation and reputation of the higher education sector in Australia, cannot be included on the face of the primary legislation. Similarly, it is unclear to the committee why it would not be possible to set out in primary legislation matters relating to how the quality of research undertaken by higher education providers will be assessed, rather than leaving these matters to be determined in a legislative instrument made under proposed subsection 59A(7).

1.38 In light of the above, the committee requests the minister's advice as to:

• why it is considered necessary and appropriate to leave the standards making up the Higher Education Standards Framework, and matters relating to how the quality of research undertaken by higher education providers will be assessed, to delegated legislation;

• whether the bill can be amended to include the standards and matters relating to how the quality of research undertaken by higher education providers will be assessed on the face of the primary legislation; and

• if it is not considered appropriate to include the standards and matters relating to the quality of research on the face of the primary legislation, whether at least high-level guidance in relation to what may be included in the standards made under proposed subsection 58(1) and instruments made under proposed subsection 59A(7) can be set out in the primary legislation.

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[1] Schedule 1, items 14 and 15, proposed subsection 58(1) and proposed section 59A. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(iv).

[2] See Amendment No. 1 to the Higher Education Standards Framework (Threshold Standards) 2011 [F2013L00194]; Higher Education Standards Framework (Threshold Standards) 2015 [F2015L01639].