Tertiary Education Quality and Standards Agency (Charges) Bill 2021 - Commentary on Ministerial Responses [2021] AUSStaCSBSD 139 (23 June 2021)

• Tertiary Education Quality and Standards Agency (Charges) Bill 2021
• Broad discretionary power
• Significant matters in delegated legislation11

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Tertiary Education Quality and Standards Agency (Charges) Bill 2021

Purpose	This bill seeks to establish a new registered higher education provider charge to recover the costs of the Tertiary Education Quality and Standards Agency’s sector risk monitoring and regulatory oversight activities
Portfolio	Education
Introduced	House of Representatives on 13 May 2021
Bill status	Before the Senate

Broad discretionary power
Significant matters in delegated legislation^[11]

2.28 In Scrutiny Digest 8 of 2021 the committee requested the minister's advice as to:

• why it is considered necessary and appropriate to give the minister a broad discretionary power to provide for exemptions from the proposed registered higher education provider charge in delegated legislation; and

• whether the bill can be amended to include at least high-level guidance on the face of the primary legislation regarding when it will be appropriate provide for such exemptions.^[12]

Minister's response^[13]

2.29 The minister advised:

Broad discretionary power
It is appropriate to include the capacity for exemptions, should they be necessary, in the instrument that defines the parameters of the charge. Having an exemption power in delegated legislation provides the flexibility necessary for the Government to be responsive to the needs of higher education providers, either as a whole or for particular classes of providers, and to act quickly if needed. The COVID-19 pandemic has provided numerous examples where the Government needed to respond quickly to provide targeted financial relief to particular groups. This included, for example, the waiver or refund of all of TEQSA' s regulatory fees for existing higher education providers from 1 January 2020 to 31 December 2021.
Any such waiver, should it be instituted, would necessarily be consistent with the legislative intent outlined in the Bill and the Government's overarching policy framework, including the Australian Government Charging Framework. The latter requires that entities that create the demand for a regulatory function should contribute to the cost of regulation through cost recovery unless the Government has decided to fund that activity. A decision to waive collection of the annual charge for a period of time or for a particular class· of higher education providers, could not be taken lightly or without careful consideration.
Whether the bill can be amended
The Government does not consider it is necessary to amend the bill to provide guidance on the application of a waiver provision. As outlined above, any exercise of such a power could only be done after careful consideration and consistent with the legislative intent and the Australian Government's overall cost recovery policy.

Committee comment

2.30 The committee thanks the minister for this response. The committee notes the minister's advice that it is appropriate to include the capacity for exemptions, should they be necessary, in the instrument that defines the parameters of the charge as it provides the flexibility necessary for the government. The committee also notes the minister's advice that a waiver would necessarily be consistent with the legislative intent outlined in the bill and the government's overarching policy framework, including the Australian Government Charging Framework.

2.31 The committee has generally not accepted a desire for administrative flexibility or a reliance on non-legislative policy guidance to be a sufficient justification to provide broad discretionary powers in circumstances where there is no guidance on the face of the primary legislation as to how the power should be exercised. It remains unclear to the committee why at least high-level guidance could not be provided on the face of the primary legislation regarding when it will be appropriate to provide for exemptions from the proposed registered higher education provider charge. Additionally, the committee does not consider that providing this additional guidance would prevent an exemption from being made quickly if necessary.

2.32 The committee draws this matter to the attention of senators and leaves to the Senate as a whole the appropriateness of giving the minister a broad discretionary power to provide for exemptions from the proposed registered higher education provider charge in delegated legislation.

2.33 The committee requests that an addendum to the explanatory memorandum containing the key information provided by the minister be tabled in the Parliament as soon as practicable, noting the importance of these explanatory materials as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.34 The committee also draws this matter to the attention of the Senate Standing Committee for the Scrutiny of Delegated Legislation.

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[11] Clause 8. The committee draws senators’ attention to this provision pursuant to Senate Standing Orders 24(1)(a)(ii) and (iv).

[12] Senate Scrutiny of Bills Committee, Scrutiny Digest 8 of 2021, p. 45.

[13] The minister responded to the committee's comments in a letter dated 22 June 2021. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 9 of 2021 available at: www.aph.gov.au/senate_scrutiny_digest.