The Tertiary Education Quality and Standards Agency's (TEQSA's) 2018 direction was forecast in the Chief Commissioner's and Chief Executive Officer's introduction to their 2016-2017 annual report.
It noted the publication of the Corporate Plan for 2017-2021, recording TEQSA's regulatory focus for 2017-18 as including threats to academic integrity (in particular the availability of contract cheating services). The introduction also recorded that TEQSA would be examining higher education providers' responses to the Australian Human Rights Commission's report on sexual assault and sexual harassment at Australian universities released in August 2017.
The following update summarises the changes and developments relating to TEQSA (and the TEQSA Act) and its regulatory activities over the past year since the publication of the Annual Report. It follows our annual TEQSA update ahead of last year's SOUL Conference and may be useful to read ahead of the panel session concerning TEQSA at this year's SOUL Conference.
Funding boost for TEQSA
In the 2018 Commonwealth Budget, it was announced that TEQSA's funding would be changed, from the current partial cost recovery arrangements which have applied since it was first established, to progressive achievement of full cost recovery arrangements over a four year period.
The change will deliver an additional $24.3 million in funding to TEQSA over the next four years. That is in addition to the $3.1 million that was announced in the Budget for TEQSA to tackle the complex issue of contract cheating, aligning with TEQSA's focus on responding to threats of academic integrity at universities and other higher education providers this year.
On 9 May 2018, the CEO said in a press release that the changes would significantly boost TEQSA's capacity to undertake monitoring, investigation and compliance activities, in circumstances where TEQSA has had to devote significant resources in the last two years to assessing applications for new registration of higher education providers. The funding will support, among other things, the new Compliance and Investigations Team TEQSA announced on 20 March 2018, responsible for investigating possible breaches of the Threshold Standards and other higher education legislation.
Legislative and policy changes
There have been no significant amendments to the Tertiary Education Quality and Standards Agency Act 2012 (Cth) (TEQSA Act) or Education Services for Overseas Students Act 2000 (Cth) (ESOS Act) over the last 12 months, since the publication of our TEQSA update for last year's SOUL Conference.
However, the National Code of Practice for Providers of Education and Training to Overseas Students 2018 (National Code 2018) made under the ESOS Act commenced from 1 January 2018, replacing the 2017 version of the National Code. Universities are required to comply with the National Code 2018 standards to maintain their registration on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS). Registration on CRICOS is required in order for a university to be able to enrol international students.
Among other things, the Explanatory Statement records that changes in the National Code 2018 seek to:
- address information imbalances for students
- address areas of risk, especially with regard to welfare arrangements for students under 18 years of age
- include student support service requirements which target specific areas of student need which have come to light since the National Code was last substantially revised
- reduce the administrative burden in relation to the process for assessing student transfers
- streamline course attendance requirements; and
- minimise regulatory overlaps between the National Code and other legislation and standards.
The English Language Intensive Courses for Overseas Students (ELICOS) Standards 2018 (ELICOS Standards) made under the ESOS Act also commenced from 1 January 2018, replacing the 2011 version of the ELICOS Standards. Universities providing ELICOS courses are required to comply with the ELICOS Standards (in addition to the National Code 2018) in order to be registered on CRICOS to deliver an ELICOS course. The Explanatory Statement records that the amendments aim to ensure high standards are applied to ELICOS courses across all sectors of delivery.
In addition to the above legislative changes, on 13 December 2017, TEQSA published its new Policy on public reporting of TEQSA's decisions. TEQSA was consulting with the sector on this at the time of our last annual update. As we indicated in our response to the consultation paper during the consultation period, we generally advocated against the proposed changes. While we agreed with TEQSA's proposal to adopt four guiding principles of transparency, compliance, fairness and consistency, we suggested that TEQSA carefully consider the proposals in its Consultation Paper to ensure that higher education providers are not denied procedural fairness. We cautioned that TEQSA should ensure that it does not allow the principle of consistency to limit the proper consideration of each case on its own merits and whether, in all the circumstances of a particular case, it is appropriate to withhold publication of certain decisions.
As set out in the updated policy, TEQSA now publishes:
- announcements and media releases about significant decisions;
- decisions to reject initial applications for registration as a higher education provider;
- decisions to reject applications for initial accreditation of a course of study;
- information on the review status of decisions; and
- where a decision is later varied or substituted with another decision on review, TEQSA’s initial decision as well as the decision made on review.
TEQSA will also update the National Register to reflect TEQSA's regulatory decisions as soon as practicable after the decision has been made. Previously, adverse regulatory decisions were not published until the expiry of the period during which a provider could apply for external review in the Administrative Appeals Tribunal (and then, in the event of review, not published until the review was completed). However, where decisions are subject to a right of internal review, those decisions will only be published by TEQSA at the end of the period within which an application may be made for internal review, or at the end of the internal review process, whichever is later.
Immediate publication by TEQSA of adverse regulatory decisions that are subject to external review in the Administrative Appeals Tribunal is a significant change and exposes providers to the reputational damage associated with publication of an adverse decision in circumstances where that decision may ultimately be set aside on review. The change necessitates prompt action by a higher education provider (including a university) wishing to seek confidentiality orders whilst seeking an external review of an adverse decision in the Administrative Appeals Tribunal.
Guidance notes
TEQSA has continued to publish updated guidance notes relating to the Higher Education Standards Framework (Threshold Standards) 2015 (Threshold Standards), including in relation to:
In addition to the above Guidance Notes on the Threshold Standards, TEQSA also published updated Application Guide for Registered Higher Education Providers: renewal of registration for existing providers.
A spotlight on student wellbeing and safety
The first of the Guidance Notes (on Wellbeing and Safety) followed significant work undertaken by TEQSA, following publication of the University of New South Wales' Australian Human Rights Centre's August 2017 report On Safe Ground: A Good Practice Guide for Australian Universities. It was a recommendation in that report that TEQSA develop guidance materials on relevant requirements in the Threshold Standards to offer greater clarity to universities and other higher education providers on legislative requirements. The Guidance Note on Wellbeing and Safety followed on from the consultation in August to October 2017 referred to in our update last year.
TEQSA has announced that all higher education providers (including universities) will be assessed for compliance against the Threshold Standards concerning wellbeing and safety at time of renewal of registration.
In addition, TEQSA has confirmed that it is fielding complaints regarding sexual assault and harassment at universities, investigating the handling of those complaints and, where considered appropriate, requiring universities to respond to requests for information. TEQSA's regulatory interest in such matters is whether the university is complying with the Threshold Standards concerning wellbeing and safety. Its instigation of investigations outside the re-registration cycle reveals that it will require universities to be compliant with these standards at all times.
Consultation and reports
As mentioned in our last update, among other things the Education Legislation Amendment (Provider Integrity and Other Measures) Act 2017 (Cth):
- allowed TEQSA to take into account the history of persons related to a provider when assessing the risk that the provider may not comply with the Threshold Standards;
- makes registration subject to an additional requirement that providers, and their key personnel, are 'fit and proper person[s]'; and
- allowed TEQSA to specify matters that TEQSA may have regard to in deciding whether a person is a fit and proper person under the TEQSA Act.
Against that background, TEQSA issued a consultation paper, recording a list of non-exhaustive matters that TEQSA proposes to have regard to in making that assessment.
For non-university providers, perhaps the most important consideration is whether the person has ever been a member of a corporate governing body, or has made or participated in making decisions that affect the whole or a substantial part of the affairs of a provider that has been subject to a significant adverse regulatory decision. (For example, conditions imposed on registration, shortened registration, cancellation of registration etc.). With conditions on registration now becoming a reality for universities, it is likely this will also become a matter exercising the minds of members of university council / senate.
In addition, there are a range of more standard considerations that TEQSA proposes it be able to consider in making an assessment of whether a person is 'fit and proper', including whether a person has been convicted of an offence, whether the person has ever knowingly provided false or misleading information to a government authority, whether the person has ever been disqualified from managing a corporation under Part 2D.6 of the Corporations Act 2001 (Cth) and whether the person has ever become bankrupt.
The due date for submissions in respect of this paper was 1 December 2017. TEQSA is yet to publish the instrument recording the matters it may have regard to in determining whether a person is fit and proper.
Over the last 12 months, TEQSA has also published reports of varying interest to universities, including:
- Assessment insights (September 2018) – provides an overview of assessment outcomes, including common themes that lead to TEQSA making adverse regulatory decisions. In particular, the report records that the majority of TEQSA's serious adverse decisions in relation to existing providers arose due to concerns about the adequacy of the provider's corporate and academic governance arrangements. We expect corporate and academic governance arrangements to be a central focus of TEQSA in coming years when considering applications by universities for renewal of their registration;
- TEQSA international engagement strategy 2016-2020 (2018 update) – concerning TEQSA's strategy for quality assuring Australian transnational higher education, supporting activity and innovation by Australian providers in that space, building networks and collaborating to ensure quality.
- Statistics report on TEQSA registered higher education providers 2018 – being the fifth release of this annual report, providing a snapshot of statistics across the sector; and
- Advice of Admissions Transparency (February 2018) – concerning principles to ensure compliance with relevant Threshold Standards, in relation to accessibility, consistency and comparability and data presentation and quality.