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This is a Bill, not an Act. For current law, see the Acts databases.
TERTIARY EDUCATION QUALITY AND STANDARDS AGENCY BILL 2011
2010-2011
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Tertiary Education Quality and
Standards Agency Bill 2011
No. , 2011
(Education, Employment and Workplace Relations)
A Bill for an Act to regulate higher education, and
for other purposes
i Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
Contents
Part 1--Introduction
1
Division 1--Preliminary
1
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
2
Division 2--Objects and simplified outline
4
3 Objects
...............................................................................................
4
4 Simplified
outline
..............................................................................
4
Division 3--Definitions
6
5 Definitions
.........................................................................................
6
6 Meaning
of
regulated higher education award ............................... 15
7 Meaning
of
vacancy ......................................................................... 16
Division 4--Constitutional matters
17
8 Constitutional
basis
..........................................................................
17
9
Act excludes State and Territory higher education laws .................. 17
Division 5--General application of this Act
18
10 Crown
to
be bound ........................................................................... 18
11
Application to external Territories and outside Australia ................ 18
12 Geographical
jurisdiction of offences .............................................. 18
Part 2--Basic principles for regulation
19
13 Basic
principles
for regulation ......................................................... 19
14
Principle of regulatory necessity ...................................................... 19
15
Principle of reflecting risk ............................................................... 19
16
Principle of proportionate regulation ............................................... 19
17 Application
to
authorised officers .................................................... 20
Part 3--Registration
21
Division 1--Applying for registration
21
18
Applying for registration ................................................................. 21
19 Preliminary
assessment
of application ............................................. 21
20 Substantive
assessment of application ............................................. 22
21 Registration
......................................................................................
22
22
TEQSA to notify applicant of decision about registration ............... 24
23
Commencement and duration of registration ................................... 24
Division 2--Conditions of registration
25
24 Complying
with
conditions .............................................................. 25
25 Condition--accredited course .......................................................... 25
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 ii
26
Condition--courses to be provided consistently with the
Threshold Standards ........................................................................ 25
27 Condition--financial
information must be provided ....................... 25
28 Condition--other
information must be provided ............................. 26
29 Condition--notifying
TEQSA
of material changes ......................... 26
30 Condition--record keeping .............................................................. 27
31 Condition--cooperation ................................................................... 27
32 Other
conditions
...............................................................................
27
33
TEQSA to consult if condition about authority to
self-accredit ...................................................................................... 28
34
TEQSA to notify provider of decision to impose, vary or
revoke a condition ............................................................................ 29
Division 3--Renewing registration
30
35
Applying to renew registration ........................................................ 30
36 Renewing
registration
......................................................................
30
37
TEQSA to notify provider of decision about renewal ..................... 31
Division 4--Changing provider registration category
32
38
Changing provider registration category .......................................... 32
39 Consultation--change
relates to use of "university" ....................... 32
40
TEQSA to notify provider of decision ............................................. 33
Division 5--Applying to self-accredit
34
41
Applying to self-accredit courses of study ....................................... 34
42
TEQSA to notify provider of decision ............................................. 34
Division 6--Withdrawing registration
35
43 Withdrawing
registration ................................................................. 35
44
TEQSA to notify provider of decision about withdrawal ................ 35
Part 4--Accreditation of courses of study
36
Division 1--Application of this Part
36
45 Application
......................................................................................
36
Division 2--Applying for accreditation
37
46
Applying for accreditation ............................................................... 37
47 Preliminary
assessment
of application ............................................. 37
48 Substantive
assessment of application ............................................. 37
49
Accreditation of course of study ...................................................... 38
50
TEQSA to notify provider of decision about accreditation .............. 39
51
Commencement and duration of accreditation ................................ 39
Division 3--Conditions of accreditation
41
52 Complying
with
conditions .............................................................. 41
iii Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
53 Conditions
........................................................................................
41
54
TEQSA to notify provider of decision to impose, vary or
revoke a condition ............................................................................ 41
Division 4--Renewing accreditation
42
55
Applying to renew accreditation ...................................................... 42
56 Renewing
accreditation
....................................................................
42
57
TEQSA to notify provider of decision about renewal ..................... 43
Part 5--Higher Education Standards Framework
44
Division 1--Higher Education Standards Framework
44
58
Making the Higher Education Standards Framework ...................... 44
Division 2--Compliance with the Framework
46
59 Compliance
assessments
..................................................................
46
60
Quality (including thematic) assessments ........................................ 46
61 Accreditation
assessments
...............................................................
46
62 Matters
relevant
to assessments ....................................................... 46
Part 6--Investigative powers
48
Division 1--Requiring people to give information etc.
48
63
Requiring person connected with a regulated entity to give
information etc. ................................................................................ 48
64 Contravening
requirement
to give information etc. ......................... 49
65 Copying
documents--compensation ............................................... 49
66
TEQSA may retain documents and things ....................................... 49
67
Returning documents or things produced ........................................ 50
68
Disposal if cannot be returned ......................................................... 50
69 Self-incrimination
............................................................................
51
Division 2--Searches of premises
52
70
Authorised officer may enter premises by consent or under a
warrant ............................................................................................. 52
71
Monitoring powers of authorised officers ........................................ 52
72 Enforcement
powers
of
authorised officers ..................................... 55
73
Persons assisting authorised officers ............................................... 57
74
Use of force in executing a warrant ................................................. 57
75
Authorised officer may ask questions and seek production of
documents ........................................................................................ 58
76 Self-incrimination
............................................................................
59
Division 3--Obligations and incidental powers of authorised
officers
60
77 Consent
............................................................................................
60
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 iv
78
Announcement before entry under warrant ..................................... 60
79
Authorised officer to be in possession of warrant ............................ 61
80
Details of warrant etc. to be given to occupier................................. 61
81
Expert assistance to operate electronic equipment ........................... 62
82
Compensation for damage to electronic equipment ......................... 63
Division 4--Occupier's rights and responsibilities
65
83
Occupier entitled to observe execution of warrant .......................... 65
84
Occupier to provide authorised officer with facilities and
assistance ......................................................................................... 65
Division 5--General provisions relating to seizure
66
85
Copies of seized things to be provided ............................................ 66
86
Receipts for things seized ................................................................ 66
87
Return of seized things .................................................................... 66
88
Magistrate may permit a thing to be retained .................................. 67
89
Disposal if cannot be returned ......................................................... 68
Division 6--Warrants
70
90 Issuing
monitoring warrants ............................................................ 70
91 Issuing
enforcement warrants .......................................................... 71
92
Enforcement warrants by telephone, fax etc. ................................... 72
93
Offence relating to warrants by telephone, fax etc. ......................... 74
Division 7--Authorised officers and identity cards
75
94 Authorised
officers
..........................................................................
75
95 Identity
cards
...................................................................................
75
Division 8--Powers of magistrates
77
96 Federal
Magistrates--consent to nomination .................................. 77
97 Magistrates--personal capacity ....................................................... 77
Part 7--Enforcement
78
Division 1--Administrative sanctions
78
Subdivision A--Sanctions
78
98
Provider is non-compliant ................................................................ 78
99
Sanctions about accredited course ................................................... 78
100
Shortening period of registration ..................................................... 78
101 Cancelling
registration ..................................................................... 78
Subdivision B--Other matters
79
102
Automatic cancellation if provider wound up .................................. 79
103 Seeking
registration
after cancellation ............................................. 79
v Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
Division 2--Offences and civil penalty provisions
80
Subdivision A--Offences and civil penalty provisions
80
104
Guide to offences and civil penalty provisions ................................ 80
105
Offering a regulated higher education award if unregistered ........... 80
106
Representing offer of a regulated higher education award if
unregistered ...................................................................................... 81
107
Offering an award without a course of study ................................... 82
108
Regulated entity represents itself as university ................................ 82
109
Falsely representing entity as a registered higher education
provider ............................................................................................ 84
110
Falsely representing that entity provides a course of study
leading to a regulated higher education award ................................. 84
111 Falsely
representing
course of study is accredited ........................... 85
112
Providing an unaccredited course of study ...................................... 85
113 Breach
of
condition
of registration .................................................. 86
114 Breach
of
condition
of accreditation ................................................ 86
Subdivision B--Obtaining a civil penalty order
86
115
Civil penalty orders .......................................................................... 86
116
Involvement in contravening civil penalty provision ....................... 87
117
Recovery of a pecuniary penalty ...................................................... 88
118
2 or more proceedings may be heard together ................................. 88
119
Continuing and multiple contraventions of civil penalty
provisions ......................................................................................... 88
120
Mistake of fact ................................................................................. 89
Subdivision C--Civil penalty proceedings and criminal
proceedings
90
121
Civil proceedings after criminal proceedings .................................. 90
122 Criminal
proceedings
during civil proceedings ............................... 90
123 Criminal
proceedings
after civil proceedings .................................. 90
124
Evidence given in proceedings for civil penalty not
admissible in criminal proceedings .................................................. 90
Division 3--Enforceable undertakings
92
125 Acceptance
of
undertakings ............................................................. 92
126 Enforcement
of
undertakings ........................................................... 92
Division 4--Injunctions
94
127 Injunctions
.......................................................................................
94
128 Interim
injunctions
...........................................................................
94
129 Discharging
or
varying injunctions .................................................. 95
130
Certain limits on granting injunctions not to apply .......................... 95
131
Other powers of the Court unaffected .............................................. 95
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 vi
Part 8--Tertiary Education Quality and Standards Agency
97
Division 1--Establishment, functions and powers of TEQSA
97
132 Establishment
...................................................................................
97
133 Constitution......................................................................................
97
134 Functions
and
powers
......................................................................
97
135 Independence
of TEQSA ................................................................. 99
136
Minister may give directions to TEQSA .......................................... 99
137
TEQSA has privileges and immunities of the Crown ...................... 99
Division 2--Appointment of Commissioners
100
138 Appointment
..................................................................................
100
139
Term of appointment ..................................................................... 100
140 Remuneration
and
allowances ....................................................... 100
141
Leave of absence ............................................................................ 101
142
Outside employment ...................................................................... 101
143
Disclosure of interests to the Minister ........................................... 101
144 Other
terms
and
conditions ............................................................ 101
145 Resignation
....................................................................................
102
146 Termination
of
appointment .......................................................... 102
147 Acting
appointments
......................................................................
103
Division 3--TEQSA procedures
105
Subdivision A--Meetings
105
148
Times and places of meetings ........................................................ 105
149
Conduct of meetings ...................................................................... 105
150 Disclosure
of
interests .................................................................... 106
Subdivision B--Decisions without meetings
106
151 Decisions
without meetings ........................................................... 106
152 Record
of
decisions
........................................................................
107
Division 4--Chief Executive Officer
108
153
Chief Executive Officer ................................................................. 108
154
Functions and powers of the Chief Executive Officer ................... 108
155
Minister may give directions to Chief Executive Officer .............. 108
Division 5--Staff
109
156 Staff
...............................................................................................
109
157
Staff to be made available to TEQSA ............................................ 109
Division 6--Fees
110
158 Fees
................................................................................................
110
Division 7--Planning
111
Subdivision A--Strategic plans
111
vii Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
159 Developing
strategic plans ............................................................. 111
160 Approving
strategic plans .............................................................. 111
161 Varying
strategic plans .................................................................. 112
Subdivision B--Annual operational plans
112
162
Developing annual operational plans ............................................. 112
163 Approving
annual
operational plans .............................................. 113
164
Varying annual operational plans .................................................. 113
Division 8--Annual reports
114
165 Annual
reports
...............................................................................
114
Part 9--Higher Education Standards Panel
115
Division 1--Establishment and functions
115
166 Establishment
.................................................................................
115
167 Constitution....................................................................................
115
168 Functions
.......................................................................................
115
169
Panel has privileges and immunities of the Crown ........................ 116
Division 2--Appointment of Panel members
117
170 Appointment
..................................................................................
117
171
Term of appointment ..................................................................... 117
172 Remuneration
and
allowances ....................................................... 117
173
Leave of absence ............................................................................ 118
174
Outside employment ...................................................................... 118
175
Disclosure of interests to the Minister ........................................... 118
176 Other
terms
and
conditions ............................................................ 118
177 Resignation
....................................................................................
118
178 Termination
of
appointment .......................................................... 119
179 Acting
appointments
......................................................................
119
Division 3--Panel meetings
121
180 Holding
meetings
...........................................................................
121
181 Quorum
..........................................................................................
121
182 Procedure
of
meetings
...................................................................
121
Part 10--Administrative law matters
123
Division 1--Review of decisions
123
183 Reviewable
decisions ..................................................................... 123
184
Applying for internal review of reviewable decisions made
by delegates of TEQSA ................................................................. 124
185 Internal
review by TEQSA ............................................................ 124
186
Deadline for internal review .......................................................... 125
187
Review by the Administrative Appeals Tribunal ........................... 125
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 viii
Division 2--Information management
126
Subdivision A--Restriction on disclosure or use of information
126
188
Offence of unauthorised disclosure or use of information ............. 126
Subdivision B--Information sharing
127
189
Disclosing information about breaches of regulatory
requirements .................................................................................. 127
190
Disclosing information about proposed cancellations of
registration ..................................................................................... 128
191
Disclosing information to Tertiary Admission Centres ................. 128
192
Disclosing information to the Minister and Secretary ................... 128
193
Disclosing information to professional bodies etc. ........................ 129
194
Disclosing information to certain government bodies etc. ............. 129
195
Disclosing information under international cooperative
arrangements .................................................................................. 129
196 Disclosing
information to the public .............................................. 129
197
Information about national security ............................................... 130
Part 11--National Register of Higher Education Providers
131
198
National Register of Higher Education Providers .......................... 131
Part 12--Miscellaneous
132
199 Delegation--general
......................................................................
132
200 Delegation--powers
delegable only to Commissioners ................ 133
201
Delegates must comply with directions ......................................... 133
202
Protection from criminal or civil actions ....................................... 134
203
Review of impact of Act ................................................................ 134
204
Guidelines ...................................................................................... 134
205 Regulations
....................................................................................
135
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 1
A Bill for an Act to regulate higher education, and
1
for other purposes
2
The Parliament of Australia enacts:
3
Part 1--Introduction
4
Division 1--Preliminary
5
1 Short title
6
This Act may be cited as the Tertiary Education Quality and
7
Standards Agency Act 2011.
8
Part 1 Introduction
Division 1 Preliminary
Section 2
2 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
2 Commencement
1
(1) Each provision of this Act specified in column 1 of the table
2
commences, or is taken to have commenced, in accordance with
3
column 2 of the table. Any other statement in column 2 has effect
4
according to its terms.
5
6
Commencement information
Column 1
Column 2
Column 3
Provision(s) Commencement
Date/Details
1. Sections 1 and
2 and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Sections 3 to 8
The later of:
(a) 1 July 2011; and
(b) the day after the end of the period of 1
month beginning on the day this Act
receives the Royal Assent.
3. Section 9
The later of:
(a) 1 January 2012; and
(b) the day after the end of the period of 7
months beginning on the day this Act
receives the Royal Assent.
4. Part 1,
Division 5
The later of:
(a) 1 July 2011; and
(b) the day after the end of the period of 1
month beginning on the day this Act
receives the Royal Assent.
5. Parts 2 to 4
The later of:
(a) 1 January 2012; and
(b) the day after the end of the period of 7
months beginning on the day this Act
receives the Royal Assent.
6. Part 5,
Division 1
The later of:
(a) 1 July 2011; and
Introduction Part 1
Preliminary Division 1
Section 2
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 3
Commencement information
Column 1
Column 2
Column 3
Provision(s) Commencement
Date/Details
(b) the day after the end of the period of 1
month beginning on the day this Act
receives the Royal Assent.
7. Part 5,
Division 2, and
Parts 6 and 7
The later of:
(a) 1 January 2012; and
(b) the day after the end of the period of 7
months beginning on the day this Act
receives the Royal Assent.
8. Parts 8 to 10
The later of:
(a) 1 July 2011; and
(b) the day after the end of the period of 1
month beginning on the day this Act
receives the Royal Assent.
9. Part 11
The later of:
(a) 1 January 2012; and
(b) the day after the end of the period of 7
months beginning on the day this Act
receives the Royal Assent.
10. Part 12
The later of:
(a) 1 July 2011; and
(b) the day after the end of the period of 1
month beginning on the day this Act
receives the Royal Assent.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
7
Part 1 Introduction
Division 2 Objects and simplified outline
Section 3
4 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
Division 2--Objects and simplified outline
1
3 Objects
2
The objects of this Act are:
3
(a) to provide for national consistency in the regulation of higher
4
education; and
5
(b) to regulate higher education using:
6
(i) a standards-based quality framework; and
7
(ii) principles relating to regulatory necessity, risk and
8
proportionality; and
9
(c) to protect and enhance:
10
(i) Australia's reputation for quality higher education and
11
training services; and
12
(ii) Australia's international competitiveness in the higher
13
education sector; and
14
(iii) excellence, diversity and innovation in higher education
15
in Australia; and
16
(d) to encourage and promote a higher education system that is
17
appropriate to meet Australia's social and economic needs
18
for a highly educated and skilled population; and
19
(e) to protect students undertaking, or proposing to undertake,
20
higher education in Australia by requiring the provision of
21
quality higher education; and
22
(f) to ensure students undertaking, or proposing to undertake,
23
higher education, have access to information relating to
24
higher education in Australia.
25
4 Simplified outline
26
The following is a simplified outline of this Act:
27
·
An entity must be registered before it can offer or confer any
28
of the following awards (regulated higher education awards):
29
(a)
Australian higher education awards;
30
Introduction Part 1
Objects and simplified outline Division 2
Section 4
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 5
(b)
overseas higher education awards, if those awards
1
relate to courses of study provided at Australian
2
premises.
3
·
Registered higher education providers must have their courses
4
of study accredited before those courses can be provided in
5
connection with regulated higher education awards.
6
·
The Tertiary Education Quality and Standards Agency
7
(TEQSA) registers providers and accredits courses of study.
8
TEQSA is also responsible for ensuring that higher education
9
provided in Australia, or by Australian providers, meets the
10
Higher Education Standards Framework.
11
·
That Framework is a series of standards made by the Minister
12
on the advice of the Higher Education Standards Panel.
13
14
Part 1 Introduction
Division 3 Definitions
Section 5
6 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
Division 3--Definitions
1
5 Definitions
2
In this Act:
3
accreditation assessment means an assessment conducted under
4
section 61.
5
accredited course means a course of study that:
6
(a) if a registered higher education provider is authorised to
7
self-accredit the course of study--is accredited by the
8
provider; and
9
(b) otherwise--is accredited by TEQSA.
10
acquisition of property has the same meaning as in paragraph
11
51(xxxi) of the Constitution.
12
annual operational plan means a plan given under section 162.
13
approved means approved by TEQSA, in writing, for the purposes
14
of the provision in which the expression occurs.
15
associated provisions: this Act's associated provisions are the
16
provisions of the Crimes Act 1914 or the Criminal Code that relate
17
to this Act.
18
Australia, when used in a geographical sense, includes the external
19
Territories.
20
Australian corporation means a trading or financial corporation
21
formed within the limits of the Commonwealth (to which
22
paragraph 51(xx) of the Constitution applies).
23
Australian course of study means:
24
(a) a single course leading to an Australian higher education
25
award; or
26
(b) a course recognised by the higher education provider at
27
which the course is undertaken as a combined or double
28
course leading to one or more Australian higher education
29
awards.
30
Introduction Part 1
Definitions Division 3
Section 5
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 7
Example: An example of a combined or double course covered by paragraph (b)
1
is a course that leads to the Australian higher education awards of
2
Bachelor of Arts and Bachelor of Laws.
3
Australian higher education award means a higher education
4
award offered or conferred (whether solely or jointly) by:
5
(a) an Australian corporation; or
6
(b) a corporation established by or under a law of the
7
Commonwealth or a Territory; or
8
(c) a person (other than an individual) established in Australia
9
who conducts activities in a Territory; or
10
(d) an Australian resident who conducts activities in a Territory.
11
Australian premises, in relation to an overseas higher education
12
award, means premises:
13
(a) in Australia; and
14
(b) occupied by the person (the offeror) who offers or confers
15
the award, or by another entity; and
16
(c) from which the offeror, or the other entity under an
17
arrangement with the offeror, provides all or part of a course
18
of study.
19
Australian Qualifications Framework has the same meaning as in
20
the Higher Education Support Act 2003.
21
Australian resident means an individual who resides in Australia
22
and is:
23
(a) an Australian citizen; or
24
(b) the holder (within the meaning of the Migration Act 1958) of
25
a permanent visa (within the meaning of that Act).
26
authorised officer means a person appointed as an authorised
27
officer under section 94.
28
Chief Commissioner means the Chief Commissioner of TEQSA.
29
Chief Executive Officer means the Chief Executive Officer of
30
TEQSA.
31
civil penalty order means an order under subsection 115(2).
32
Part 1 Introduction
Division 3 Definitions
Section 5
8 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
civil penalty provision means a subsection, or a section that is not
1
divided into subsections, of this Act that has set out at its foot the
2
words "civil penalty" and one or more amounts in penalty units.
3
Commissioner means the Chief Commissioner or another
4
Commissioner of TEQSA.
5
Commonwealth authority means:
6
(a) an Agency (within the meaning of the Public Service Act
7
1999); or
8
(b) a body, whether incorporated or not, established for a public
9
purpose by or under a law of the Commonwealth.
10
compliance assessment means an assessment conducted under
11
section 59.
12
condition includes:
13
(a) for a condition imposed under section 32 (about conditions
14
on registration)--that condition as varied under that section;
15
or
16
(b) for a condition imposed under section 53 (about conditions
17
on accreditation)--that condition as varied under that section.
18
constitutional corporation means a corporation to which
19
paragraph 51(xx) of the Constitution applies.
20
course of study means:
21
(a) an Australian course of study; or
22
(b) an overseas course of study.
23
disclose means divulge or communicate.
24
enforcement powers has the meaning given by section 72.
25
enforcement warrant means:
26
(a) a warrant issued under section 91; or
27
(b) a warrant signed by a magistrate under section 92.
28
evidential material means:
29
(a) in relation to an offence against this Act or this Act's
30
associated provisions:
31
Introduction Part 1
Definitions Division 3
Section 5
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 9
(i) a thing with respect to which the offence has been
1
committed or is suspected, on reasonable grounds, of
2
having been committed; or
3
(ii) a thing that there are reasonable grounds for suspecting
4
will afford evidence as to the commission of the
5
offence; or
6
(iii) a thing that there are reasonable grounds for suspecting
7
is intended to be used for the purposes of committing
8
the offence; and
9
(b) in relation to a contravention of a civil penalty provision:
10
(i) a thing with respect to which the civil penalty provision
11
has been contravened or is suspected, on reasonable
12
grounds, of having been contravened; or
13
(ii) a thing that there are reasonable grounds for suspecting
14
will afford evidence as to the contravention of the civil
15
penalty provision; or
16
(iii) a thing that there are reasonable grounds for suspecting
17
is intended to be used for the purposes of contravening
18
the civil penalty provision.
19
executive officer of an entity means a person, by whatever name
20
called and whether or not a director of the entity, who is concerned
21
in, or takes part in, the entity's management.
22
Federal Court means the Federal Court of Australia.
23
Federal Magistrate, other than in section 96, means a Federal
24
Magistrate in relation to whom a consent under subsection 96(1)
25
and a nomination under subsection 96(2) are in force.
26
foreign corporation means a foreign corporation to which
27
paragraph 51(xx) of the Constitution applies.
28
full-time Commissioner means:
29
(a) the Chief Commissioner; or
30
(b) a Commissioner of TEQSA appointed on a full-time basis.
31
higher education award means:
32
Part 1 Introduction
Division 3 Definitions
Section 5
10 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
(a) a diploma, advanced diploma, associate degree, bachelor
1
degree, graduate certificate, graduate diploma, masters
2
degree or doctoral degree; or
3
(b) a qualification covered by level 5, 6, 7, 8, 9 or 10 of the
4
Australian Qualifications Framework; or
5
(c) an award of a similar kind, or represented as being of a
6
similar kind, to any of the above awards;
7
other than an award offered or conferred for the completion of a
8
vocational education and training course.
9
higher education information means information, relating to a
10
regulated entity:
11
(a) that is obtained by TEQSA; and
12
(b) that relates to TEQSA's functions; and
13
(c) that is not personal information (within the meaning of the
14
Privacy Act 1988).
15
higher education provider means:
16
(a) a constitutional corporation that offers or confers a regulated
17
higher education award; or
18
(b) a corporation that:
19
(i) offers or confers a regulated higher education award;
20
and
21
(ii) is established by or under a law of the Commonwealth
22
or a Territory; or
23
(c) a person who offers or confers a regulated higher education
24
award for the completion of a course of study provided
25
wholly or partly in a Territory.
26
Higher Education Standards Framework means the following
27
standards:
28
(a) the Provider Standards, which are:
29
(i) the Provider Registration Standards; and
30
(ii) the Provider Category Standards; and
31
(iii) the Provider Course Accreditation Standards;
32
(b) the Qualification Standards;
33
(c) the Teaching and Learning Standards;
34
(d) the Research Standards;
35
Introduction Part 1
Definitions Division 3
Section 5
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 11
(e) the Information Standards;
1
(f) any other standards made under paragraph 58(1)(e) or (h).
2
Information Guidelines means guidelines referred to in item 1 of
3
the table in section 204.
4
just terms has the same meaning as in paragraph 51(xxxi) of the
5
Constitution.
6
lawyer means:
7
(a) a barrister; or
8
(b) a solicitor; or
9
(c) a barrister and solicitor; or
10
(d) a legal practitioner;
11
of the High Court or of the Supreme Court of a State or Territory.
12
magistrate includes a Federal Magistrate of the Federal
13
Magistrates Court.
14
member of the staff of TEQSA means:
15
(a) a person referred to in subsection 156(1); or
16
(b) a person whose services are made available to TEQSA under
17
section 157.
18
monitoring powers has the meaning given by section 71.
19
monitoring warrant means a warrant issued under section 90.
20
overseas course of study means:
21
(a) a single course leading to an overseas higher education
22
award; or
23
(b) a course recognised by the higher education provider at
24
which the course is undertaken as a combined or double
25
course leading to one or more overseas higher education
26
awards.
27
Example: An example of a combined or double course covered by paragraph (b)
28
is a course that leads to the overseas higher education awards of
29
Bachelor of Arts and Bachelor of Laws.
30
overseas higher education award means a higher education award
31
offered or conferred (whether solely or jointly) by:
32
Part 1 Introduction
Division 3 Definitions
Section 5
12 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
(a) a foreign corporation; or
1
(b) a person (other than an individual) established outside of
2
Australia who conducts activities in a Territory; or
3
(c) an individual, who is not an Australian resident, who
4
conducts activities in a Territory.
5
Panel means the Higher Education Standards Panel established by
6
section 166.
7
Panel Chair means the Panel Chair mentioned in paragraph
8
167(1)(a).
9
Panel member means the Panel Chair or another member of the
10
Panel.
11
part-time Commissioner means a Commissioner of TEQSA
12
appointed on a part-time basis.
13
penalty unit has the meaning given by section 4AA of the Crimes
14
Act 1914.
15
person assisting an authorised officer has the meaning given by
16
section 73.
17
preliminary assessment application fee means:
18
(a) for an application under section 18 (about applications for
19
registration)--the fee payable under paragraph 18(3)(c); or
20
(b) for an application under section 46 (about applications for
21
accreditation)--the fee payable under paragraph 46(2)(c).
22
premises includes the following:
23
(a) a structure, building, vehicle, vessel or aircraft;
24
(b) a place (whether or not enclosed or built on);
25
(c) a part of a thing referred to in paragraph (a) or (b).
26
protected person has the meaning given by subsection 202(2).
27
provide a course of study: an entity may provide a course of study
28
by one or more of the following means:
29
(a) a lecture, class or examination on campus or other premises;
30
(b) a postal or other like service;
31
Introduction Part 1
Definitions Division 3
Section 5
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 13
(c) a computer adapted for communicating by way of the internet
1
or another communications network;
2
(d) a television receiver adapted to allow the viewer to transmit
3
information by way of a cable television network or other
4
communications network;
5
(e)
a
telephone;
6
(f) any other electronic device.
7
provider category means a provider category listed in the Provider
8
Category Standards.
9
Provider Category Standards means the Provider Category
10
Standards made under paragraph 58(1)(b).
11
Provider Course Accreditation Standards means the Provider
12
Course Accreditation Standards made under paragraph 58(1)(c).
13
Provider Registration Standards means the Provider Registration
14
Standards made under paragraph 58(1)(a).
15
qualified auditor means:
16
(a) the Auditor-General of a State, of the Australian Capital
17
Territory or of the Northern Territory; or
18
(b) a person registered as a company auditor or a public
19
accountant under a law in force in a State, the Australian
20
Capital Territory or the Northern Territory; or
21
(c) a member of the Institute of Chartered Accountants in
22
Australia, or of the Australian Society of Certified Practising
23
Accountants; or
24
(d) a person approved by TEQSA under subsection 27(4).
25
quality assessment means an assessment conducted under
26
section 60.
27
Register means the National Register of Higher Education
28
Providers established and maintained under section 198.
29
registered higher education provider means a higher education
30
provider registered under Part 3 and listed on the Register under
31
paragraph 198(1)(a).
32
Part 1 Introduction
Division 3 Definitions
Section 5
14 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
Register Guidelines means guidelines referred to in item 2 of the
1
table in section 204.
2
regulated entity means:
3
(a) a constitutional corporation; or
4
(b) a corporation established by or under a law of the
5
Commonwealth or a Territory; or
6
(c) a person who conducts activities in a Territory.
7
regulated higher education award has the meaning given by
8
section 6.
9
Research Minister means the Minister administering the
10
Australian Research Council Act 2001.
11
Research Standards means the Research Standards made under
12
subsection 58(2).
13
reviewable decision means a decision covered by section 183.
14
Secretary means the Secretary of the Department.
15
State or Territory authority means:
16
(a) a Department, or agency, of a State or Territory; or
17
(b) a body, whether incorporated or not, established for a public
18
purpose by or under a law of a State or Territory.
19
strategic plan means a plan prepared under section 159.
20
substantive assessment application fee means:
21
(a) for an application under section 18 (about applications for
22
registration)--the fee payable under paragraph 20(1)(b); or
23
(b) for an application under section 46 (about applications for
24
accreditation)--the fee payable under paragraph 48(1)(b).
25
TEQSA: see Tertiary Education Quality and Standards Agency.
26
Tertiary Admission Centre means a person, body or organisation
27
that provides services in relation to student admissions and
28
enrolments on behalf of registered higher education providers.
29
Introduction Part 1
Definitions Division 3
Section 6
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 15
Tertiary Education Quality and Standards Agency or TEQSA
1
means the body established by section 132.
2
Threshold Standards means the following:
3
(a) the Provider Standards, which are:
4
(i) the Provider Registration Standards; and
5
(ii) the Provider Category Standards; and
6
(iii) the Provider Course Accreditation Standards;
7
(b) the Qualification Standards;
8
(c) any other standards made under paragraph 58(1)(e).
9
vacancy has a meaning affected by section 7.
10
vocational education and training course means:
11
(a) the units of competency of a training package that is
12
endorsed by the Council consisting of the Ministers for the
13
Commonwealth and each State and Territory responsible for
14
vocational education and training; or
15
(b) the modules of a course accredited under a State or Territory
16
law relating to vocational education and training; or
17
(c) a course of a similar kind to any of the above training
18
packages or courses.
19
Note:
This definition will change to mean a VET course (within the meaning
20
of the National Vocational Education and Training Regulator Act
21
2011), or a course of a similar kind, if that Act commences (see Part 2
22
of Schedule 2 to the Tertiary Education Quality and Standards
23
Agency (Consequential Amendments and Transitional Provisions) Act
24
2011).
25
warrant means a monitoring warrant or an enforcement warrant.
26
6 Meaning of regulated higher education award
27
(1)
A
regulated higher education award is:
28
(a) an Australian higher education award offered or conferred for
29
the completion of an Australian course of study; or
30
(b) an overseas higher education award offered or conferred for
31
the completion of an overseas course of study provided
32
wholly or mainly from Australian premises related to the
33
award.
34
Part 1 Introduction
Division 3 Definitions
Section 7
16 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
(2) The course of study does not need to be provided by the person
1
that offers or confers the award.
2
(3) Paragraph (1)(a) does not apply to an Australian higher education
3
award to the extent that it is offered or conferred by:
4
(a) a foreign corporation; or
5
(b) a person (other than an individual) established outside of
6
Australia who conducts activities in a Territory; or
7
(c) an individual, who is not an Australian resident, who
8
conducts activities in a Territory.
9
7 Meaning of vacancy
10
(1) For the purposes of a reference in:
11
(a) this Act to a vacancy in the office of a Commissioner; or
12
(b)
the
Acts Interpretation Act 1901 to a vacancy in the
13
membership of a body;
14
there are taken to be 4 offices of Commissioners in addition to the
15
Chief Commissioner.
16
(2) For the purposes of a reference in:
17
(a) this Act to a vacancy in the office of a Panel member; or
18
(b)
the
Acts Interpretation Act 1901 to a vacancy in the
19
membership of a body;
20
there are taken to be 10 offices of Panel members in addition to the
21
Panel Chair.
22
23
Introduction Part 1
Constitutional matters Division 4
Section 8
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 17
Division 4--Constitutional matters
1
8 Constitutional basis
2
This Act relies on:
3
(a) the Commonwealth's legislative powers under paragraphs
4
51(xx) and (xxxix), and section 122, of the Constitution; and
5
(b) any other Commonwealth legislative power to the extent that
6
the Commonwealth has relied, or relies, on the power to
7
establish a corporation.
8
9 Act excludes State and Territory higher education laws
9
(1) The following entities are not required to comply with a State or
10
Territory law purporting to regulate the provision of higher
11
education:
12
(a) a higher education provider;
13
(b) a regulated entity who intends to become a higher education
14
provider if:
15
(i) the regulated entity has applied to TEQSA for
16
registration under section 18; and
17
(ii) TEQSA has not made a decision on the application.
18
(2) Subsection (1) does not apply in relation to a State or Territory law
19
to the extent that:
20
(a) the law establishes the higher education provider or regulated
21
entity; or
22
(b) the law regulates who may carry on an occupation; or
23
(c) the law is of a kind specified in regulations made for the
24
purposes of this paragraph.
25
(3) Subsection (1) does not apply in relation to a State or Territory law
26
if that law purports to regulate a matter, of which the provision of
27
higher education is only a part, unless that law is of a kind
28
specified in regulations made for the purposes of this subsection.
29
30
Part 1 Introduction
Division 5 General application of this Act
Section 10
18 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
Division 5--General application of this Act
1
10 Crown to be bound
2
(1) This Act binds the Crown in each of its capacities.
3
(2) However, nothing in this Act makes the Crown liable to a
4
pecuniary penalty or to be prosecuted for an offence.
5
11 Application to external Territories and outside Australia
6
(1) This Act extends to every external Territory.
7
(2) Except so far as the contrary intention appears, this Act extends to
8
acts, omissions, matters and things outside Australia.
9
12 Geographical jurisdiction of offences
10
Section 15.4 of the Criminal Code (extended geographical
11
jurisdiction--category D) applies to each offence against this Act
12
or this Act's associated provisions.
13
14
Basic principles for regulation Part 2
Section 13
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 19
Part 2--Basic principles for regulation
1
2
13 Basic principles for regulation
3
TEQSA must comply with the following principles when
4
exercising a power under this Act in relation to a regulated entity:
5
(a) the principle of regulatory necessity;
6
(b) the principle of reflecting risk;
7
(c) the principle of proportionate regulation.
8
14 Principle of regulatory necessity
9
TEQSA complies with the principle of regulatory necessity if its
10
exercise of the power does not burden the entity any more than is
11
reasonably necessary.
12
15 Principle of reflecting risk
13
TEQSA complies with the principle of reflecting risk if its exercise
14
of the power has regard to:
15
(a) the entity's history, including the history of:
16
(i) its scholarship, teaching and research; and
17
(ii) its students' experiences; and
18
(iii) its financial status and capacity; and
19
(iv) its compliance with the Threshold Standards, this Act,
20
this Act's associated provisions and other laws
21
regulating higher education; and
22
(b) matters relating to the risk of the entity not complying with
23
the Threshold Standards, this Act or this Act's associated
24
provisions in the future, including:
25
(i) its internal quality assurance mechanisms; and
26
(ii) its financial status and capacity.
27
16 Principle of proportionate regulation
28
TEQSA complies with the principle of proportionate regulation if
29
its exercise of the power is in proportion to:
30
Part 2 Basic principles for regulation
Section 17
20 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
(a) any non-compliance; or
1
(b) risk of future non-compliance;
2
by the entity with the Threshold Standards, this Act or this Act's
3
associated provisions.
4
17 Application to authorised officers
5
This Part applies to an authorised officer in a corresponding way to
6
the way it applies to TEQSA.
7
8
Registration Part 3
Applying for registration Division 1
Section 18
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 21
Part 3--Registration
1
Division 1--Applying for registration
2
18 Applying for registration
3
(1) A regulated entity who is, or intends to become, a higher education
4
provider may apply to TEQSA for registration within a particular
5
provider category.
6
(2) If an application is made, the entity may also apply to TEQSA for a
7
course of study to be accredited.
8
Note:
For an application for a course of study to be accredited, see
9
section 46.
10
(3) An application for registration must be:
11
(a) in the approved form; and
12
(b) accompanied by any information, documents and assistance
13
that TEQSA requests; and
14
(c) accompanied by the fee determined under section 158 for a
15
preliminary assessment under this Part.
16
19 Preliminary assessment of application
17
(1) TEQSA must, within 30 days after an application is made, advise
18
the applicant:
19
(a) whether its application for registration in a particular
20
provider category is appropriate, and if it is not, what
21
provider category would be appropriate (if any); and
22
(b) whether an application is required for a course of study to be
23
accredited.
24
(2) Before making a decision under paragraph (1)(a) about a provider
25
category, TEQSA must:
26
(a) have regard to the Threshold Standards; and
27
(b) if the provider category applied for, or the provider category
28
that TEQSA considers would be appropriate, permits the use
29
of the word "university":
30
Part 3 Registration
Division 1 Applying for registration
Section 20
22 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
(i) consult the Minister for each relevant State and
1
Territory responsible for higher education; and
2
(ii) have regard to any advice or recommendations given by
3
each of those Ministers.
4
(3) If the applicant withdraws its application, the preliminary
5
assessment application fee is not refundable.
6
20 Substantive assessment of application
7
(1) The applicant may continue with its application by:
8
(a) providing any further information, documents and assistance
9
that TEQSA requests; and
10
(b) paying the fee determined under section 158 for a substantive
11
assessment under this Part.
12
(2) When conducting the substantive assessment, TEQSA must:
13
(a) proceed on the basis that the application is for registration in
14
the provider category advised as appropriate under paragraph
15
19(1)(a); and
16
(b) if that provider category permits the use of the word
17
"university":
18
(i) consult the Minister for each relevant State and
19
Territory responsible for higher education; and
20
(ii) have regard to any advice or recommendations given by
21
each of those Ministers.
22
(3) If an applicant withdraws its application, the substantive
23
assessment application fee is not refundable.
24
21 Registration
25
Grant of application for registration
26
(1) TEQSA may grant the application for registration if TEQSA is
27
satisfied that the applicant meets the Threshold Standards.
28
Decision on application
29
(2) TEQSA must make a decision on the application:
30
Registration Part 3
Applying for registration Division 1
Section 21
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 23
(a) within 12 months of receiving it; or
1
(b) if a longer period is determined by TEQSA under
2
subsection (3)--within that period.
3
For the purposes of paragraph (a), TEQSA is taken to receive the
4
application when it receives payment of the substantive assessment
5
application fee.
6
Longer period for decision on application
7
(3) If TEQSA is satisfied that, for reasons beyond its control, a
8
decision on the application cannot be made within the period
9
mentioned in paragraph (2)(a), TEQSA may determine a longer
10
period, not exceeding a further 12 months, within which it must
11
make a decision on the application.
12
(4) If TEQSA determines a longer period, it must do so not later than 6
13
weeks before the end of the period mentioned in paragraph (2)(a).
14
(5) If TEQSA determines a longer period, TEQSA must, within 7 days
15
of making the determination:
16
(a) notify the applicant, in writing, of the determination; and
17
(b) give, in writing, the reasons for the determination.
18
Period of registration
19
(6) If TEQSA grants the applicant's application, TEQSA must also
20
determine the period for which the applicant is registered. The
21
period must not exceed 7 years.
22
Note 1:
For renewals of registration, see section 36.
23
Note 2:
TEQSA may also impose conditions on the registration (see
24
subsection 32(1)).
25
Decision not made
26
(7) TEQSA is taken to have rejected the application if a decision is not
27
made within the period applicable under subsection (2).
28
Part 3 Registration
Division 1 Applying for registration
Section 22
24 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
22 TEQSA to notify applicant of decision about registration
1
TEQSA must, within 30 days of its decision to grant or reject an
2
application for registration as a registered higher education
3
provider, notify the applicant, in writing, of:
4
(a) the decision; and
5
(b) if TEQSA grants the application--the following:
6
(i) the provider category in which the applicant is
7
registered, and the reasons for deciding on that category;
8
(ii) the period for which the applicant is registered;
9
(iii) whether the applicant may self-accredit one or more
10
courses of study; and
11
(c) if TEQSA rejects the application--the reasons for the
12
decision.
13
Note:
TEQSA must also notify of any conditions imposed under subsection
14
32(1) on the applicant's registration (see section 34).
15
23 Commencement and duration of registration
16
(1) An applicant's registration:
17
(a) commences on the day specified in the notice given under
18
section 22; and
19
(b) ends at the end of the period specified in the most recent
20
notice given under section 22 or 37 in relation to the
21
registration.
22
(2) Paragraph (1)(b) has effect subject to subsection 36(3) (about
23
renewing registration), section 43 (about withdrawing registration)
24
and Division 1 of Part 7 (about cancelling registration and other
25
administrative sanctions).
26
27
Registration Part 3
Conditions of registration Division 2
Section 24
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 25
Division 2--Conditions of registration
1
24 Complying with conditions
2
A registered higher education provider must:
3
(a) comply with the conditions imposed by sections 25 to 31 on
4
the provider's registration; and
5
(b) comply with any conditions imposed under subsection 32(1)
6
on the provider's registration.
7
Note:
The provider's registration will be automatically cancelled if a
8
winding-up order is made in respect of the provider (see section 102).
9
25 Condition--accredited course
10
A registered higher education provider must offer at least one
11
accredited course.
12
26 Condition--courses to be provided consistently with the
13
Threshold Standards
14
(1) This section applies to a registered higher education provider if the
15
provider offers or confers a regulated higher education award for
16
the completion of a course of study provided wholly or partly by
17
another entity.
18
(2) The provider must ensure that the other entity provides the course
19
of study consistently with the Threshold Standards.
20
27 Condition--financial information must be provided
21
Providers must give TEQSA annual financial statements
22
(1) A registered higher education provider must give TEQSA a
23
financial statement for each annual financial reporting period for
24
which the provider is registered.
25
(2) The provider's annual financial reporting period is the period of 12
26
months:
27
(a) to which the provider's accounts relate; and
28
Part 3 Registration
Division 2 Conditions of registration
Section 28
26 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
(b) that is notified, in writing, to TEQSA as the provider's
1
annual financial reporting period.
2
(3) A statement given under subsection (1) must be:
3
(a) in the approved form; and
4
(b) provided together with a report on the statement by an
5
independent qualified auditor; and
6
(c) provided within 6 months after the end of the annual
7
financial reporting period to which the statement relates.
8
TEQSA may approve additional persons as qualified auditors
9
(4) TEQSA may, in writing, approve a person as a qualified auditor for
10
the purposes of this Act.
11
28 Condition--other information must be provided
12
(1) This section applies to a registered higher education provider if:
13
(a) TEQSA believes on reasonable grounds that the provider has
14
information relevant to TEQSA's functions; and
15
(b) TEQSA, by written notice given to the provider, requests the
16
provider to give TEQSA the information:
17
(i) within the period (not shorter than 14 days after the
18
notice is given) specified in the notice; and
19
(ii) in the manner specified in the notice.
20
(2) The provider must comply with the request.
21
29 Condition--notifying TEQSA of material changes
22
(1) A registered higher education provider must notify TEQSA if any
23
of the following events happens or is likely to happen:
24
(a) an event that will significantly affect the provider's ability to
25
meet the Threshold Standards;
26
(b) an event that will require the Register to be updated in
27
respect of the provider.
28
(2) The notification must be given no later than 14 days after the day
29
the provider would reasonably be expected to have become aware
30
of the event.
31
Registration Part 3
Conditions of registration Division 2
Section 30
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 27
30 Condition--record keeping
1
A registered higher education provider must keep adequate records
2
for the purposes of this Act.
3
31 Condition--cooperation
4
A registered higher education provider must cooperate with
5
TEQSA to facilitate TEQSA's performance of its functions.
6
32 Other conditions
7
TEQSA may impose conditions on registrations etc.
8
(1) TEQSA may impose other conditions on a registered higher
9
education provider's registration. Examples of the kinds of
10
conditions that may be imposed (which need not be imposed at the
11
time of registration) include the following:
12
(a) if section 26 applies to the provider:
13
(i) that the provider do certain things in relation to the other
14
entity referred to in that section;
15
(ii) that the other entity referred to in that section do certain
16
things;
17
(b) that the provider do any or all of the following for one or
18
more accredited courses:
19
(i) maintain a particular staffing profile;
20
(ii) provide access to particular facilities;
21
(iii) provide particular support services;
22
(c) restricting or removing the provider's authority to
23
self-accredit one or more courses of study;
24
(d) restricting or removing the provider's ability to provide an
25
accredited course;
26
(e) restricting the number of students that may enrol in a
27
particular accredited course provided by the provider;
28
(f) restricting or removing the provider's ability to offer or
29
confer a regulated higher education award.
30
Note 1:
TEQSA may need to consult before imposing a condition of a kind
31
covered by paragraph (c) (see section 33).
32
Part 3 Registration
Division 2 Conditions of registration
Section 33
28 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
Note 2:
A condition covered by paragraph (d) could, for example, prohibit a
1
registered higher education provider:
2
(a) doing anything for the purposes of recruiting or enrolling
3
students or intending students for an accredited course; or
4
(b) soliciting or accepting any money from a student or an intending
5
student for an accredited course.
6
(2) TEQSA may, on its own initiative, vary or revoke a condition
7
imposed under subsection (1).
8
Applications to vary or revoke a condition
9
(3) TEQSA may also vary or revoke a condition imposed under
10
subsection (1) if the registered higher education provider applies
11
for the variation or revocation.
12
(4) The provider's application must be:
13
(a) in the approved form; and
14
(b) accompanied by any information, documents and assistance
15
that TEQSA requests; and
16
(c) accompanied by the fee determined under section 158 for an
17
application under this section.
18
33 TEQSA to consult if condition about authority to self-accredit
19
(1) This section applies if:
20
(a) a registered higher education provider is registered in a
21
provider category that permits the use of the word
22
"university"; and
23
(b) TEQSA proposes to make a decision to:
24
(i) impose under subsection 32(1) a condition restricting or
25
removing the provider's authority to self-accredit one or
26
more courses of study; or
27
(ii) vary or revoke a condition of that kind.
28
(2) Before doing so, TEQSA must give the provider and the Minister
29
for each relevant State and Territory responsible for higher
30
education:
31
(a) a written notice stating that TEQSA intends to make the
32
decision for specified reasons; and
33
Registration Part 3
Conditions of registration Division 2
Section 34
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 29
(b) a reasonable opportunity to make representations to TEQSA
1
in relation to the proposed decision.
2
(3) TEQSA must have regard to any representations received under
3
subsection (2).
4
34 TEQSA to notify provider of decision to impose, vary or revoke a
5
condition
6
TEQSA must, within 30 days of making a decision under
7
subsection 32(1), (2) or (3), notify the registered higher education
8
provider, in writing, of:
9
(a) the decision; and
10
(b) the reasons for the decision; and
11
(c) if the decision is to impose a condition--the period for which
12
the condition is imposed.
13
14
Part 3 Registration
Division 3 Renewing registration
Section 35
30 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
Division 3--Renewing registration
1
35 Applying to renew registration
2
(1) A registered higher education provider may apply to TEQSA, in
3
the approved form, to have its registration renewed:
4
(a) at least 180 days before its registration is to end; or
5
(b) within such shorter period as TEQSA allows.
6
(2) An application must be accompanied by the fee determined under
7
section 158 for an application under this section.
8
36 Renewing registration
9
Deciding whether to grant the application
10
(1) Upon receiving a registered higher education provider's
11
application for renewal of registration, TEQSA may renew the
12
provider's registration if it is satisfied that the provider continues to
13
meet the Threshold Standards.
14
(2) The things TEQSA may do to assist it to make a decision under
15
subsection (1) include:
16
(a) requesting information, documents or assistance from the
17
provider; and
18
(b) conducting a compliance assessment.
19
(3) The provider's registration is taken to continue until TEQSA
20
decides whether to renew the provider's registration.
21
(4) If TEQSA renews the provider's registration, TEQSA must
22
determine the period for which the provider's registration is
23
renewed. The period must not exceed 7 years.
24
Note:
Any conditions imposed on the registration, and in force immediately
25
before its renewal, will apply to the renewed registration.
26
Proposal to reject the application
27
(5) If TEQSA proposes to make a decision to reject the provider's
28
application for renewal of registration, TEQSA must give each
29
entity mentioned in subsection (6):
30
Registration Part 3
Renewing registration Division 3
Section 37
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 31
(a) a written notice stating that TEQSA intends to make the
1
decision for specified reasons; and
2
(b) a reasonable opportunity to make representations to TEQSA
3
in relation to the proposed decision.
4
(6) The entities are:
5
(a) the provider; and
6
(b) if the provider's registration is in a provider category that
7
permits the use of the word "university"--the Minister for
8
each relevant State and Territory responsible for higher
9
education.
10
(7) TEQSA must consider any representations received under
11
subsection (5).
12
37 TEQSA to notify provider of decision about renewal
13
TEQSA must, within 30 days of its decision to grant or reject an
14
application for renewal of registration, notify the registered higher
15
education provider, in writing, of:
16
(a) the decision; and
17
(b) if TEQSA grants the application--the period for which the
18
registration is renewed; and
19
(c) if TEQSA rejects the application--the reasons for the
20
decision.
21
22
Part 3 Registration
Division 4 Changing provider registration category
Section 38
32 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
Division 4--Changing provider registration category
1
38 Changing provider registration category
2
(1) TEQSA may change the provider category in which a registered
3
higher education provider is registered:
4
(a) on its own initiative; or
5
(b) on application by the provider.
6
(2) However, before doing so TEQSA must have regard to the
7
Threshold Standards.
8
(3) A registered higher education provider's application must be:
9
(a) in the approved form; and
10
(b) accompanied by any information, documents and assistance
11
that TEQSA requests; and
12
(c) accompanied by the fee determined under section 158 for an
13
application under this section.
14
39 Consultation--change relates to use of "university"
15
(1) This section applies if:
16
(a) TEQSA proposes to make a decision under subsection 38(1)
17
to change the provider category in which a registered higher
18
education provider is registered; and
19
(b) the provider's current provider category, or the proposed
20
provider category, permits the use of the word "university".
21
(2) Before doing so, TEQSA must give the provider and the Minister
22
for each relevant State and Territory responsible for higher
23
education:
24
(a) a written notice stating that TEQSA intends to make the
25
decision for specified reasons; and
26
(b) a reasonable opportunity to make representations to TEQSA
27
in relation to the proposed decision.
28
(3) TEQSA must have regard to any representations received under
29
subsection (2).
30
Registration Part 3
Changing provider registration category Division 4
Section 40
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 33
40 TEQSA to notify provider of decision
1
TEQSA must, within 30 days of making a decision under
2
subsection 38(1), notify the registered higher education provider, in
3
writing, of:
4
(a) the decision; and
5
(b) the reasons for the decision.
6
7
Part 3 Registration
Division 5 Applying to self-accredit
Section 41
34 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
Division 5--Applying to self-accredit
1
41 Applying to self-accredit courses of study
2
(1) TEQSA may, on application, authorise a registered higher
3
education provider to self-accredit one or more courses of study.
4
(2) However, before doing so TEQSA must have regard to the
5
Threshold Standards.
6
(3) A registered higher education provider's application must be:
7
(a) in the approved form; and
8
(b) accompanied by any information, documents and assistance
9
that TEQSA requests; and
10
(c) accompanied by the fee determined under section 158 for an
11
application under this section.
12
42 TEQSA to notify provider of decision
13
TEQSA must, within 30 days of making a decision under
14
subsection 41(1), notify the registered higher education provider, in
15
writing, of:
16
(a) the decision; and
17
(b) the reasons for the decision.
18
19
Registration Part 3
Withdrawing registration Division 6
Section 43
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 35
Division 6--Withdrawing registration
1
43 Withdrawing registration
2
(1) A registered higher education provider may apply to TEQSA, in
3
the approved form, to withdraw its registration.
4
(2) Upon receiving the provider's application to withdraw its
5
registration, TEQSA may grant the application if TEQSA is
6
satisfied that it is appropriate to allow the registration to be
7
withdrawn.
8
44 TEQSA to notify provider of decision about withdrawal
9
TEQSA must, within 30 days of its decision to grant or reject an
10
application to withdraw a registration, notify the registered higher
11
education provider, in writing, of:
12
(a) the decision; and
13
(b) if TEQSA grants the application--the day on which the
14
withdrawal takes effect; and
15
(c) if TEQSA rejects the application--the reasons for the
16
decision.
17
18
Part 4 Accreditation of courses of study
Division 1 Application of this Part
Section 45
36 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
Part 4--Accreditation of courses of study
1
Division 1--Application of this Part
2
45 Application
3
This Part applies to a registered higher education provider in
4
relation to a course of study if the provider is not authorised to
5
self-accredit the course of study.
6
7
Accreditation of courses of study Part 4
Applying for accreditation Division 2
Section 46
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 37
Division 2--Applying for accreditation
1
46 Applying for accreditation
2
(1) A regulated entity who is, or has applied to become, a registered
3
higher education provider may apply to TEQSA for a course of
4
study to be accredited.
5
(2) An application must be:
6
(a) in the approved form; and
7
(b) accompanied by any information, documents and assistance
8
that TEQSA requests; and
9
(c) accompanied by the fee determined under section 158 for a
10
preliminary assessment under this Part.
11
47 Preliminary assessment of application
12
(1) TEQSA must, within 30 days after an application is made:
13
(a) advise the applicant whether its application is accompanied
14
by sufficient information, documents and assistance; and
15
(b) if it is not, request that the applicant provide further
16
information, documents or assistance.
17
(2) If the applicant withdraws its application, the preliminary
18
assessment application fee is not refundable.
19
48 Substantive assessment of application
20
(1) The applicant may continue with its application by:
21
(a) providing any further information, documents and assistance
22
that TEQSA requests; and
23
(b) paying the fee determined under section 158 for a substantive
24
assessment under this Part.
25
(2) If an applicant withdraws its application, the substantive
26
assessment application fee is not refundable.
27
Part 4 Accreditation of courses of study
Division 2 Applying for accreditation
Section 49
38 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
49 Accreditation of course of study
1
Grant of application for accreditation
2
(1) Following an application for a course of study to be accredited,
3
TEQSA may accredit the course of study in relation to the
4
applicant if TEQSA is satisfied that:
5
(a) the applicant is a registered higher education provider; and
6
(b) the course of study meets the Provider Course Accreditation
7
Standards.
8
Decision on application
9
(2) TEQSA must make a decision on the application:
10
(a) within 12 months of receiving it; or
11
(b) if a longer period is determined by TEQSA under
12
subsection (3)--within that period.
13
For the purposes of paragraph (a), TEQSA is taken to receive the
14
application when it receives payment of the substantive assessment
15
application fee.
16
Longer period for decision on application
17
(3) If TEQSA is satisfied that, for reasons beyond its control, a
18
decision on the application cannot be made within the period
19
mentioned in paragraph (2)(a), TEQSA may determine a longer
20
period, not exceeding a further 12 months, within which it must
21
make a decision on the application.
22
(4) If TEQSA determines a longer period, it must do so not later than 6
23
weeks before the end of the period mentioned in paragraph (2)(a).
24
(5) If TEQSA determines a longer period, TEQSA must, within 7 days
25
of making the determination:
26
(a) notify the applicant, in writing, of the determination; and
27
(b) give, in writing, the reasons for the determination.
28
Period of accreditation
29
(6) If TEQSA accredits a course of study in relation to a registered
30
higher education provider, TEQSA must also determine the period
31
Accreditation of courses of study Part 4
Applying for accreditation Division 2
Section 50
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 39
for which the course of study is accredited. The period must not
1
exceed 7 years, but need not be for the same period for which the
2
provider is registered.
3
Note 1:
The period will end automatically if the provider ceases to be
4
registered as a registered higher education provider (see paragraph
5
51(2)(a)).
6
Note 2:
Accreditation can be renewed (see section 56).
7
Note 3:
TEQSA may also impose conditions on the accreditation (see
8
subsection 53(1)).
9
Decision not made
10
(7) TEQSA is taken to have rejected the application if a decision is not
11
made within the period applicable under subsection (2).
12
50 TEQSA to notify provider of decision about accreditation
13
TEQSA must, within 30 days of its decision to grant or reject an
14
application for a course of study to be accredited, notify the
15
applicant, in writing, of:
16
(a) the decision; and
17
(b) if TEQSA grants the application--the period for which the
18
course of study is accredited; and
19
(c) if TEQSA rejects the application--the reasons for the
20
decision.
21
Note:
TEQSA must also notify of any conditions imposed under subsection
22
53(1) on the accreditation (see section 54).
23
51 Commencement and duration of accreditation
24
(1) Accreditation of a course of study:
25
(a) commences on the first day of the period specified in the
26
notice given under section 50; and
27
(b) ends at the end of the period specified in the most recent
28
notice given under section 50 or 57 in relation to the
29
accreditation.
30
(2) Paragraph (1)(b) has effect subject to the following:
31
(a) the accreditation ends immediately if the provider ceases to
32
be registered as a registered higher education provider;
33
Part 4 Accreditation of courses of study
Division 2 Applying for accreditation
Section 51
40 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
(b) subsection 56(3) (about renewing accreditation);
1
(c) Division 1 of Part 7 (about cancelling accreditation and other
2
administrative sanctions).
3
4
Accreditation of courses of study Part 4
Conditions of accreditation Division 3
Section 52
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 41
Division 3--Conditions of accreditation
1
52 Complying with conditions
2
A registered higher education provider must comply with any
3
conditions imposed under subsection 53(1) on the accreditation of
4
a course of study.
5
53 Conditions
6
(1) TEQSA may impose conditions on the accreditation of a course of
7
study.
8
(2) TEQSA may, on its own initiative, vary or revoke a condition
9
imposed under subsection (1).
10
(3) TEQSA may also vary or revoke a condition imposed under
11
subsection (1) if the registered higher education provider applies
12
for the variation or revocation.
13
(4) The provider's application must be:
14
(a) in the approved form; and
15
(b) accompanied by any information, documents and assistance
16
that TEQSA requests; and
17
(c) accompanied by the fee determined under section 158 for an
18
application under this section.
19
54 TEQSA to notify provider of decision to impose, vary or revoke a
20
condition
21
TEQSA must, within 30 days of making a decision under
22
subsection 53(1), (2) or (3), notify the registered higher education
23
provider, in writing, of:
24
(a) the decision; and
25
(b) the reasons for the decision; and
26
(c) if the decision is to impose a condition--the period for which
27
the condition is imposed.
28
29
Part 4 Accreditation of courses of study
Division 4 Renewing accreditation
Section 55
42 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
Division 4--Renewing accreditation
1
55 Applying to renew accreditation
2
(1) A registered higher education provider may apply to TEQSA, in
3
the approved form, for the renewal of the accreditation of a course
4
of study in relation to the provider:
5
(a) at least 180 days before the accreditation of the course of
6
study is to end; or
7
(b) within such shorter period as TEQSA allows.
8
(2) An application must be accompanied by the fee determined under
9
section 158 for an application under this section.
10
56 Renewing accreditation
11
Deciding whether to grant the application
12
(1) Upon receiving an application for renewal of the accreditation of a
13
course of study, TEQSA may renew the accreditation of the course
14
of study in relation to the registered higher education provider if it
15
is satisfied that the accredited course continues to meet the
16
Provider Course Accreditation Standards.
17
(2) The things TEQSA may do to assist it to make a decision under
18
subsection (1) include:
19
(a) requesting information, documents or assistance from the
20
provider; and
21
(b) conducting an accreditation assessment.
22
(3) The accreditation of the course of study is taken to continue until
23
TEQSA decides whether to renew the accreditation.
24
(4) If TEQSA renews the accreditation, TEQSA must determine the
25
period for which the accreditation is renewed. The period must not
26
exceed 7 years.
27
Note 1:
The period will end automatically if the provider ceases to be
28
registered as a registered higher education provider (see paragraph
29
51(2)(a)).
30
Accreditation of courses of study Part 4
Renewing accreditation Division 4
Section 57
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 43
Note 2:
Any conditions imposed on the accreditation, and in force
1
immediately before its renewal, will apply to the renewed
2
accreditation.
3
Proposal to reject the application
4
(5) If TEQSA proposes to make a decision to reject the provider's
5
application for renewal of the accreditation, TEQSA must give the
6
provider:
7
(a) a written notice stating that TEQSA intends to make the
8
decision for specified reasons; and
9
(b) a reasonable opportunity to make representations to TEQSA
10
in relation to the proposed decision.
11
(6) TEQSA must consider any representations received under
12
subsection (5).
13
57 TEQSA to notify provider of decision about renewal
14
TEQSA must, within 30 days of its decision to grant or reject an
15
application for renewal of accreditation, notify the registered
16
higher education provider, in writing, of:
17
(a) the decision; and
18
(b) if TEQSA grants the application--the period for which the
19
accreditation is renewed; and
20
(c) if TEQSA rejects the application--the reasons for the
21
decision.
22
23
Part 5 Higher Education Standards Framework
Division 1 Higher Education Standards Framework
Section 58
44 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
Part 5--Higher Education Standards Framework
1
Division 1--Higher Education Standards Framework
2
58 Making the Higher Education Standards Framework
3
Making the standards (other than the Research Standards)
4
(1) The Minister may, by legislative instrument, make the following
5
standards that, together with the Research Standards, make up the
6
Higher Education Standards Framework:
7
(a) the Provider Registration Standards;
8
(b) the Provider Category Standards;
9
(c) the Provider Course Accreditation Standards;
10
(d) the Qualification Standards;
11
(e) other standards against which higher education providers can
12
be assessed;
13
(f) the Teaching and Learning Standards;
14
(g) the Information Standards;
15
(h) other standards against which the quality of higher education
16
can be assessed.
17
Note 1:
The Threshold Standards are the standards referred to in
18
paragraphs (a) to (e).
19
Note 2:
For varying or revoking a standard, see subsection 33(3) of the Acts
20
Interpretation Act 1901.
21
Making the Research Standards
22
(2) The Research Minister may, by legislative instrument, make the
23
Research Standards.
24
Note:
For varying or revoking the Research Standards, see subsection 33(3)
25
of the Acts Interpretation Act 1901.
26
Requirements before making any of the standards
27
(3) A Minister must not make a standard under this section unless:
28
(a) a draft of the standard has been developed by the Panel; and
29
Higher Education Standards Framework Part 5
Higher Education Standards Framework Division 1
Section 58
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 45
(b) that Minister has consulted each of the following about the
1
draft:
2
(i) the Council consisting of the Ministers for the
3
Commonwealth and each State and Territory
4
responsible for higher education;
5
(ii) the Research Minister or the Minister (as appropriate);
6
(iii)
TEQSA.
7
(4) Before a Minister makes a standard under this section, that
8
Minister must have regard to:
9
(a) the draft of the standard developed by the Panel; and
10
(b) any advice or recommendations given to that Minister by any
11
of the following:
12
(i) the Panel, that Ministerial Council or TEQSA;
13
(ii) the Research Minister or the Minister (as appropriate).
14
Content of the standards
15
(5) Despite subsection 14(2) of the Legislative Instruments Act 2003, a
16
standard may make provision in relation to a matter by applying,
17
adopting or incorporating any matter contained in an instrument or
18
other writing as in force or existing from time to time.
19
20
Part 5 Higher Education Standards Framework
Division 2 Compliance with the Framework
Section 59
46 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
Division 2--Compliance with the Framework
1
59 Compliance assessments
2
TEQSA may review or examine any aspect of an entity's
3
operations to assess whether a registered higher education provider
4
continues to meet the Threshold Standards.
5
Note:
This enables TEQSA to review the operations of an entity that
6
provides part of a course of study that leads to a regulated higher
7
education award offered or conferred by the registered higher
8
education provider.
9
60 Quality (including thematic) assessments
10
TEQSA may review or examine any aspect of an entity's
11
operations to:
12
(a) assess the level of quality of higher education provided by
13
one or more registered higher education providers; or
14
(b) assess whether there are any systemic issues relating to a
15
particular course of study leading to a particular regulated
16
higher education award; or
17
(c) assess the level of quality of, or whether there are any
18
systemic issues relating to, the courses of study that lead to
19
one or more kinds of regulated higher education awards.
20
61 Accreditation assessments
21
TEQSA may review or examine an accredited course to assess
22
whether the course continues to meet the Provider Course
23
Accreditation Standards.
24
62 Matters relevant to assessments
25
Consent
26
(1) Sections 59, 60 and 61 have effect subject to subsection (2).
27
(2) TEQSA must obtain an entity's consent before:
28
(a) entering the entity's premises; or
29
(b) doing anything on those premises;
30
Higher Education Standards Framework Part 5
Compliance with the Framework Division 2
Section 62
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 47
for the purposes of a review or examination under this Division.
1
(3) However, subsection (2) has effect subject to section 24 (about a
2
registered provider having to comply with conditions).
3
Note 1:
When deciding whether to give the consent mentioned in
4
subsection (2), a registered higher education provider needs to have
5
regard to the condition that it cooperate with TEQSA (see section 31).
6
Note 2:
A condition could be imposed under subsection 32(1) for the provider
7
to arrange for another entity's consent to be given.
8
Operations that can be reviewed or examined
9
(4) The operations covered by sections 59 and 60 are not limited to the
10
entity's higher education operations.
11
12
Part 6 Investigative powers
Division 1 Requiring people to give information etc.
Section 63
48 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
Part 6--Investigative powers
1
Division 1--Requiring people to give information etc.
2
63 Requiring person connected with a regulated entity to give
3
information etc.
4
(1) This section applies to a person if TEQSA believes on reasonable
5
grounds that:
6
(a) the person is, or was, connected with:
7
(i) a regulated entity; or
8
(ii) a former regulated entity; and
9
(b) the person is capable of giving or producing information, a
10
document or a thing relevant to TEQSA's function in
11
paragraph 134(1)(c) (about investigating compliance with
12
this Act).
13
(2) TEQSA may, by written notice given to the person, require the
14
person:
15
(a) to give TEQSA the information; or
16
(b) to produce to TEQSA the document or thing; or
17
(c) to make copies of the document and to produce to TEQSA
18
those copies;
19
within the period and in the manner specified in the notice.
20
(3) The notice must:
21
(a) not specify a period shorter than 14 days after the notice is
22
given, unless TEQSA reasonably considers that a shorter
23
period is necessary that is at least 24 hours after the notice is
24
given; and
25
(b) set out the effect of section 64.
26
(4) Subsection (1) does not apply to:
27
(a) a lawyer who is acting, or has acted, for the regulated entity
28
or former regulated entity; or
29
(b) national security information (within the meaning of the
30
National Security Information (Criminal and Civil
31
Proceedings) Act 2004); or
32
Investigative powers Part 6
Requiring people to give information etc. Division 1
Section 64
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 49
(c) documents or things relating to national security (within the
1
meaning of the National Security Information (Criminal and
2
Civil Proceedings) Act 2004).
3
64 Contravening requirement to give information etc.
4
A person commits an offence if:
5
(a) the person has been given a notice under subsection 63(2);
6
and
7
(b) the person fails to comply with a requirement in the notice.
8
Penalty: 30 penalty units.
9
65 Copying documents--compensation
10
A person is entitled to be paid by TEQSA, on behalf of the
11
Commonwealth, reasonable compensation for complying with a
12
requirement covered by paragraph 63(2)(c).
13
66 TEQSA may retain documents and things
14
TEQSA may retain documents and things etc.
15
(1) If a document (including a copy of a document), or a thing, is
16
produced to TEQSA under section 63, TEQSA:
17
(a) may take possession of, and may make copies of, the
18
document or thing; and
19
(b) may retain possession of the document or thing for such
20
period as is necessary:
21
(i) for the purposes of this Act; or
22
(ii) for the purposes of an investigation to which the
23
document or thing relates; or
24
(iii) to enable evidence to be secured for the purposes of a
25
prosecution or civil penalty proceeding.
26
Access and certified copy to be provided
27
(2) Subsections (3) to (5) apply to a document produced under
28
paragraph 63(2)(b).
29
Part 6 Investigative powers
Division 1 Requiring people to give information etc.
Section 67
50 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
(3) The person otherwise entitled to possession of the document is
1
entitled to be supplied, as soon as practicable, with a copy certified
2
by TEQSA to be a true copy.
3
(4) The certified copy must be received in all courts and tribunals as
4
evidence as if it were the original.
5
(5) Until a certified copy is supplied, TEQSA must, at such times and
6
places as TEQSA thinks appropriate, permit the person otherwise
7
entitled to possession of the document, or a person authorised by
8
that person, to inspect and make copies of, or take extracts from,
9
the document.
10
67 Returning documents or things produced
11
(1)
If:
12
(a) a document (other than a copy of a document), or thing, is
13
produced to TEQSA under section 63; and
14
(b) TEQSA can no longer retain it under paragraph 66(1)(b);
15
TEQSA must take reasonable steps to return it, unless the
16
document or thing is forfeited or forfeitable to the Commonwealth
17
or is the subject of a dispute as to ownership.
18
(2) The document or thing must be returned to the person who
19
produced it (or to the owner if that person is not entitled to possess
20
it).
21
68 Disposal if cannot be returned
22
(1) TEQSA may dispose of a document or thing in such manner as it
23
considers appropriate if:
24
(a) the document or thing is produced to TEQSA under
25
section 63; and
26
(b) under section 67, TEQSA is required to take reasonable steps
27
to return the document or thing to a person; and
28
(c)
either:
29
(i) TEQSA cannot, despite making reasonable efforts,
30
locate the person; or
31
(ii) the person has refused to take possession of the
32
document or thing.
33
Investigative powers Part 6
Requiring people to give information etc. Division 1
Section 69
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 51
(2) If the operation of this section would result in an acquisition of
1
property from a person otherwise than on just terms, the
2
Commonwealth is liable to pay a reasonable amount of
3
compensation to the person.
4
(3) If the Commonwealth and the person do not agree on the amount
5
of the compensation, the person may institute proceedings in the
6
Federal Court for the recovery from the Commonwealth of such
7
reasonable amount of compensation as the court determines.
8
69 Self-incrimination
9
(1) A person is not excused from:
10
(a) giving information; or
11
(b) producing a document (including a copy of a document) or
12
thing;
13
under section 63 on the ground that doing so might tend to
14
incriminate the person or expose the person to a penalty.
15
(2) However, in the case of an individual, none of the following:
16
(a) the information given;
17
(b) the document, copy or thing produced;
18
(c) the giving of the information or the producing of the
19
document, copy or thing;
20
(d) any information, document or thing obtained as a direct or
21
indirect consequence of giving the information or producing
22
the document, copy or thing;
23
is admissible in evidence against the individual:
24
(e) in civil proceedings for the recovery of a penalty; or
25
(f) in criminal proceedings, other than proceedings for an
26
offence against:
27
(i) section 64; or
28
(ii) section 137.1 or 137.2 of the Criminal Code (which
29
deals with false or misleading information or
30
documents) that relates to this Act; or
31
(iii) section 149.1 of the Criminal Code (which deals with
32
obstruction of Commonwealth public officials) that
33
relates to this Act.
34
35
Part 6 Investigative powers
Division 2 Searches of premises
Section 70
52 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
Division 2--Searches of premises
1
70 Authorised officer may enter premises by consent or under a
2
warrant
3
(1) For the purposes of finding out whether this Act or this Act's
4
associated provisions have been or are being complied with, an
5
authorised officer may:
6
(a) enter any premises; and
7
(b) exercise the monitoring powers set out in section 71.
8
(2) If an authorised officer has reasonable grounds for suspecting that
9
there may be evidential material on any premises, the authorised
10
officer may:
11
(a) enter the premises; and
12
(b) exercise the enforcement powers set out in section 72.
13
(3) However, an authorised officer is not authorised to enter premises
14
under this section unless:
15
(a) the occupier of the premises has consented to the entry and
16
the authorised officer has shown his or her identity card if
17
required by the occupier; or
18
(b) the entry is made under a warrant.
19
Note:
If entry to the premises is with the occupier's consent, the authorised
20
officer must leave the premises if the consent ceases to have effect:
21
see section 77.
22
71 Monitoring powers of authorised officers
23
(1) The following are the monitoring powers that an authorised officer
24
may exercise under section 70 in relation to premises:
25
(a) the power to search the premises and any thing on the
26
premises;
27
(b) the power to examine any activity conducted on the premises;
28
(c) the power to inspect, examine, take measurements of or
29
conduct tests on any thing on the premises;
30
(d) the power to make any still or moving image or any
31
recording of the premises or any thing on the premises;
32
(e) the power to inspect any document on the premises;
33
Investigative powers Part 6
Searches of premises Division 2
Section 71
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 53
(f) the power to take extracts from, or make copies of, any such
1
document;
2
(g) the power to take onto the premises such equipment and
3
materials as the authorised officer requires for the purposes
4
of exercising powers in relation to the premises;
5
(h) the powers set out in subsections (2), (3) and (5).
6
Operating electronic equipment
7
(2)
The
monitoring powers include the power to operate electronic
8
equipment on the premises to see whether:
9
(a) the equipment; or
10
(b) a disk, tape or other storage device that:
11
(i) is on the premises; and
12
(ii) can be used with the equipment or is associated with it;
13
contains information that is relevant to determining whether there
14
has been compliance with this Act or this Act's associated
15
provisions.
16
(3)
The
monitoring powers include the following powers in relation to
17
information described in subsection (2) found in the exercise of the
18
power under that subsection:
19
(a) the power to operate electronic equipment on the premises to
20
put the information in documentary form and remove the
21
documents so produced from the premises;
22
(b) the power to operate electronic equipment on the premises to
23
transfer the information to a disk, tape or other storage device
24
that:
25
(i) is brought to the premises for the exercise of the power;
26
or
27
(ii) is on the premises and the use of which for that purpose
28
has been agreed in writing by the occupier of the
29
premises;
30
and remove the disk, tape or other storage device from the
31
premises.
32
(4) An authorised officer may operate electronic equipment as
33
mentioned in subsection (2) or (3) only if he or she believes on
34
Part 6 Investigative powers
Division 2 Searches of premises
Section 71
54 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
reasonable grounds that the operation of the equipment can be
1
carried out without damage to the equipment.
2
Securing things if entry to premises is under a monitoring warrant
3
(5) If entry to the premises is under a monitoring warrant, the
4
monitoring powers include the power to secure a thing for a period
5
not exceeding 24 hours if:
6
(a) the thing is found during the exercise of monitoring powers
7
on the premises; and
8
(b) an authorised officer believes on reasonable grounds that the
9
thing affords evidence of either or both of the following:
10
(i) the commission of an offence against this Act or this
11
Act's associated provisions;
12
(ii) the contravention of a civil penalty provision; and
13
(c) the authorised officer believes on reasonable grounds that:
14
(i) it is necessary to secure the thing in order to prevent it
15
from being concealed, lost or destroyed before a warrant
16
to seize the thing is obtained; and
17
(ii) the circumstances are serious and urgent.
18
(6) If an authorised officer believes on reasonable grounds that the
19
thing needs to be secured for more than 24 hours, he or she may
20
apply to a magistrate for an extension of that period.
21
(7) The authorised officer must give notice to the occupier of the
22
premises, or another person who apparently represents the
23
occupier, of his or her intention to apply for an extension. The
24
occupier or other person is entitled to be heard in relation to that
25
application.
26
(8) The provisions of this Part relating to the issue of monitoring
27
warrants apply, with such modifications as are necessary, to the
28
issue of an extension.
29
(9) The 24-hour period may be extended more than once.
30
Investigative powers Part 6
Searches of premises Division 2
Section 72
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 55
72 Enforcement powers of authorised officers
1
(1) The following are the enforcement powers that an authorised
2
officer may exercise under section 70 in relation to premises:
3
(a) if entry to the premises is with the occupier's consent--the
4
power to search the premises and any thing on the premises
5
for the evidential material the authorised officer has
6
reasonable grounds for suspecting may be on the premises;
7
(b) if entry to the premises is under an enforcement warrant:
8
(i) the power to search the premises and any thing on the
9
premises for the kind of evidential material specified in
10
the warrant; and
11
(ii) the power to seize evidential material of that kind if the
12
authorised officer finds it on the premises;
13
(c) the power to inspect, examine, take measurements of,
14
conduct tests on or take samples of evidential material
15
referred to in paragraph (a) or (b);
16
(d) the power to make any still or moving image or any
17
recording of the premises or evidential material referred to in
18
paragraph (a) or (b);
19
(e) the power to take onto the premises such equipment and
20
materials as the authorised officer requires for the purposes
21
of exercising powers in relation to the premises;
22
(f) the powers set out in subsections (2), (3) and (6).
23
Powers relating to electronic equipment
24
(2)
The
enforcement powers include the power to operate electronic
25
equipment on the premises to see whether:
26
(a) the equipment; or
27
(b) a disk, tape or other storage device that:
28
(i) is on the premises; and
29
(ii) can be used with the equipment or is associated with it;
30
contains evidential material referred to in paragraph (1)(a) or (b).
31
(3)
The
enforcement powers include the following powers in relation
32
to evidential material described in subsection (2) found in the
33
exercise of the power under that subsection:
34
Part 6 Investigative powers
Division 2 Searches of premises
Section 72
56 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
(a) if entry to the premises is under an enforcement warrant--the
1
power to seize the equipment and the disk, tape or other
2
storage device referred to in that subsection;
3
(b) the power to operate electronic equipment on the premises to
4
put the evidential material in documentary form and remove
5
the documents so produced from the premises;
6
(c) the power to operate electronic equipment on the premises to
7
transfer the evidential material to a disk, tape or other storage
8
device that:
9
(i) is brought to the premises for the exercise of the power;
10
or
11
(ii) is on the premises and the use of which for that purpose
12
has been agreed in writing by the occupier of the
13
premises;
14
and remove the disk, tape or other storage device from the
15
premises.
16
(4) An authorised officer may operate electronic equipment as
17
mentioned in subsection (2) or (3) only if he or she believes on
18
reasonable grounds that the operation of the equipment can be
19
carried out without damage to the equipment.
20
(5) An authorised officer may seize equipment or a disk, tape or other
21
storage device as mentioned in paragraph (3)(a) only if:
22
(a) it is not practicable to put the evidential material in
23
documentary form as mentioned in paragraph (3)(b) or to
24
transfer the evidential material as mentioned in
25
paragraph (3)(c); or
26
(b) possession of the equipment or the disk, tape or other storage
27
device by the occupier could constitute an offence against a
28
law of the Commonwealth.
29
Seizing other evidential material
30
(6)
If:
31
(a) entry to the premises is under an enforcement warrant; and
32
(b) the authorised officer, in the course of searching for the kind
33
of evidential material specified in the warrant, finds a thing
34
Investigative powers Part 6
Searches of premises Division 2
Section 73
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 57
that the authorised officer believes on reasonable grounds to
1
be other evidential material; and
2
(c) the authorised officer believes on reasonable grounds that it
3
is necessary to seize the thing in order to prevent its
4
concealment, loss or destruction;
5
then the enforcement powers include seizing the thing.
6
73 Persons assisting authorised officers
7
Authorised officers may be assisted by other persons
8
(1) An authorised officer may, in entering premises under section 70
9
and in exercising monitoring powers or enforcement powers in
10
relation to the premises, be assisted by other persons if that
11
assistance is necessary and reasonable. A person giving such
12
assistance is a person assisting the authorised officer.
13
Powers of a person assisting the authorised officer
14
(2) A person assisting the authorised officer may:
15
(a) enter the premises; and
16
(b) exercise monitoring powers or enforcement powers in
17
relation to the premises, but only in accordance with a
18
direction given to the person by the authorised officer.
19
(3) A power exercised by a person assisting the authorised officer as
20
mentioned in subsection (2) is taken for all purposes to have been
21
exercised by the authorised officer.
22
(4) If a direction is given under paragraph (2)(b) in writing, the
23
direction is not a legislative instrument.
24
74 Use of force in executing a warrant
25
In executing a warrant, an authorised officer executing the warrant,
26
and a person assisting the authorised officer, may use such force
27
against things as is necessary and reasonable in the circumstances.
28
Note:
This section does not authorise the use of force against people.
29
Part 6 Investigative powers
Division 2 Searches of premises
Section 75
58 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
75 Authorised officer may ask questions and seek production of
1
documents
2
Entry with consent
3
(1) If an authorised officer is authorised to enter premises because the
4
occupier of the premises consented to the entry, the authorised
5
officer may ask the occupier to:
6
(a) answer any questions relating to:
7
(i) the operation of this Act; or
8
(ii) information provided under this Act; or
9
(iii) the reasons for the authorised officer entering the
10
premises;
11
that are put by the authorised officer; and
12
(b) produce any document relating to:
13
(i) the operation of this Act; or
14
(ii) information provided under this Act; or
15
(iii) the reasons for the authorised officer entering the
16
premises;
17
that is requested by the authorised officer.
18
Entry under a warrant
19
(2) If an authorised officer is authorised to enter premises by a
20
warrant, the authorised officer may require any person on the
21
premises to:
22
(a) answer any questions relating to:
23
(i) the operation of this Act; or
24
(ii) information provided under this Act; or
25
(iii) the reasons for the authorised officer entering the
26
premises;
27
that are put by the authorised officer; and
28
(b) produce any document relating to:
29
(i) the operation of this Act; or
30
(ii) information provided under this Act; or
31
(iii) the reasons for the authorised officer entering the
32
premises;
33
Investigative powers Part 6
Searches of premises Division 2
Section 76
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 59
that is requested by the authorised officer.
1
Offence
2
(3) A person commits an offence if:
3
(a) the person is subject to a requirement under subsection (2);
4
and
5
(b) the person fails to comply with the requirement.
6
Penalty for contravention of this subsection: 30 penalty units.
7
76 Self-incrimination
8
(1) A person is not excused from:
9
(a) answering a question; or
10
(b) producing a document;
11
under subsection 75(2) on the ground that doing so might tend to
12
incriminate the person or expose the person to a penalty.
13
(2) However, in the case of an individual, none of the following:
14
(a) the answer given or document produced;
15
(b) answering the question or producing the document;
16
(c) any information or document obtained as a direct or indirect
17
consequence of answering the question or producing the
18
document;
19
is admissible in evidence against the individual:
20
(d) in civil proceedings for the recovery of a penalty; or
21
(e) in criminal proceedings, other than proceedings for an
22
offence against:
23
(i) subsection 75(3); or
24
(ii) section 137.1 or 137.2 of the Criminal Code (which
25
deals with false or misleading information or
26
documents) that relates to this Act; or
27
(iii) section 149.1 of the Criminal Code (which deals with
28
obstruction of Commonwealth public officials) that
29
relates to this Act.
30
31
Part 6 Investigative powers
Division 3 Obligations and incidental powers of authorised officers
Section 77
60 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
Division 3--Obligations and incidental powers of
1
authorised officers
2
77 Consent
3
(1) An authorised officer must, before obtaining the consent of an
4
occupier of premises for the purposes of paragraph 70(3)(a),
5
inform the occupier that the occupier may refuse consent.
6
(2) A consent has no effect unless the consent is voluntary.
7
(3) A consent may be expressed to be limited to entry during a
8
particular period. If so, the consent has effect for that period unless
9
the consent is withdrawn before the end of that period.
10
(4) A consent that is not limited as mentioned in subsection (3) has
11
effect until the consent is withdrawn.
12
(5) If an authorised officer entered premises because of the consent of
13
the occupier of the premises, the authorised officer, and any person
14
assisting the authorised officer, must leave the premises if the
15
consent ceases to have effect.
16
78 Announcement before entry under warrant
17
(1) An authorised officer must, before entering premises under a
18
warrant:
19
(a) announce that he or she is authorised to enter the premises;
20
and
21
(b) show his or her identity card to the occupier of the premises,
22
or to another person who apparently represents the occupier,
23
if the occupier or other person is present at the premises; and
24
(c) give any person at the premises an opportunity to allow entry
25
to the premises.
26
(2) However, an authorised officer is not required to comply with
27
subsection (1) if he or she believes on reasonable grounds that
28
immediate entry to the premises is required to ensure that the
29
effective execution of the warrant is not frustrated.
30
(3)
If:
31
Investigative powers Part 6
Obligations and incidental powers of authorised officers Division 3
Section 79
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 61
(a) an authorised officer does not comply with subsection (1)
1
because of subsection (2); and
2
(b) the occupier of the premises, or another person who
3
apparently represents the occupier, is present at the premises;
4
the authorised officer must, as soon as practicable after entering the
5
premises, show his or her identity card to the occupier or other
6
person.
7
79 Authorised officer to be in possession of warrant
8
Monitoring warrant
9
(1) If a monitoring warrant is being executed in relation to premises,
10
an authorised officer executing the warrant must be in possession
11
of the warrant or a copy of the warrant.
12
Enforcement warrant
13
(2) If an enforcement warrant is being executed in relation to premises,
14
an authorised officer executing the warrant must be in possession
15
of:
16
(a) the warrant issued by the magistrate under section 91, or a
17
copy of the warrant as so issued; or
18
(b) the form of warrant completed under subsection 92(6), or a
19
copy of the form as so completed.
20
80 Details of warrant etc. to be given to occupier
21
If:
22
(a) a warrant is being executed in relation to premises; and
23
(b) the occupier of the premises, or another person who
24
apparently represents the occupier, is present at the premises;
25
an authorised officer executing the warrant must, as soon as
26
practicable:
27
(c) do one of the following:
28
(i) if the warrant was issued under section 90 or 91--make
29
a copy of the warrant available to the occupier or other
30
person (which need not include the signature of the
31
magistrate who issued it);
32
Part 6 Investigative powers
Division 3 Obligations and incidental powers of authorised officers
Section 81
62 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
(ii) if the warrant was signed under section 92--make a
1
copy of the form of warrant completed under subsection
2
92(6) available to the occupier or other person; and
3
(d) inform the occupier or other person of the rights and
4
responsibilities of the occupier or other person under
5
Division 4.
6
81 Expert assistance to operate electronic equipment
7
(1) This section applies to premises to which a warrant relates.
8
Monitoring powers
9
(2) If entry to the premises is under a monitoring warrant and an
10
authorised officer believes on reasonable grounds that:
11
(a) there is on the premises information:
12
(i) that is relevant to determining whether there has been
13
compliance with this Act or this Act's associated
14
provisions; and
15
(ii) that may be accessible by operating electronic
16
equipment on the premises; and
17
(b) expert assistance is required to operate the equipment; and
18
(c) if he or she does not take action under this subsection, the
19
information may be destroyed, altered or otherwise interfered
20
with;
21
he or she may do whatever is necessary to secure the equipment,
22
whether by locking it up, placing a guard or other means.
23
Enforcement powers
24
(3) If entry to the premises is under an enforcement warrant and an
25
authorised officer believes on reasonable grounds that:
26
(a) there is on the premises evidential material of the kind
27
specified in the warrant that may be accessible by operating
28
electronic equipment on the premises; and
29
(b) expert assistance is required to operate the equipment; and
30
(c) if he or she does not take action under this subsection, the
31
evidential material may be destroyed, altered or otherwise
32
interfered with;
33
Investigative powers Part 6
Obligations and incidental powers of authorised officers Division 3
Section 82
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 63
he or she may do whatever is necessary to secure the equipment,
1
whether by locking it up, placing a guard, or otherwise.
2
Notice to occupier
3
(4) The authorised officer must give notice to the occupier of the
4
premises, or another person who apparently represents the
5
occupier, of his or her intention to secure the equipment under
6
subsection (2) or (3) and of the fact that the equipment may be
7
secured for up to 24 hours.
8
Period equipment may be secured
9
(5) The equipment may be secured:
10
(a) until the 24-hour period ends; or
11
(b) until the equipment has been operated by the expert;
12
whichever happens first.
13
Extensions
14
(6) If an authorised officer believes on reasonable grounds that the
15
equipment needs to be secured for more than 24 hours, he or she
16
may apply to a magistrate for an extension of that period.
17
(7) The authorised officer must give notice to the occupier of the
18
premises, or another person who apparently represents the
19
occupier, of his or her intention to apply for an extension. The
20
occupier or other person is entitled to be heard in relation to that
21
application.
22
(8) The provisions of this Part relating to the issue of monitoring
23
warrants or enforcement warrants apply, with such modifications
24
as are necessary, to the issue of an extension.
25
(9) The 24-hour period may be extended more than once.
26
82 Compensation for damage to electronic equipment
27
(1) This section applies if:
28
(a) as a result of electronic equipment being operated as
29
mentioned in this Part:
30
Part 6 Investigative powers
Division 3 Obligations and incidental powers of authorised officers
Section 82
64 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
(i) damage is caused to the equipment; or
1
(ii) the data recorded on the equipment is damaged; or
2
(iii) programs associated with the use of the equipment, or
3
with the use of the data, are damaged or corrupted; and
4
(b) the damage or corruption occurs because:
5
(i) insufficient care was exercised in selecting the person
6
who was to operate the equipment; or
7
(ii) insufficient care was exercised by the person operating
8
the equipment.
9
(2) The Commonwealth must pay the owner of the equipment, or the
10
user of the data or programs, such reasonable compensation for the
11
damage or corruption as the Commonwealth and the owner or user
12
agree on.
13
(3) However, if the owner or user and the Commonwealth fail to
14
agree, the owner or user may institute proceedings in the Federal
15
Court for such reasonable amount of compensation as the Court
16
determines.
17
(4) In determining the amount of compensation payable, regard is to
18
be had to whether the occupier of the premises, or the occupier's
19
employees and agents, if they were available at the time, provided
20
any appropriate warning or guidance on the operation of the
21
equipment.
22
(5) For the purposes of this section:
23
damage, in relation to data, includes damage by erasure of data or
24
addition of other data.
25
26
Investigative powers Part 6
Occupier's rights and responsibilities Division 4
Section 83
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 65
Division 4--Occupier's rights and responsibilities
1
83 Occupier entitled to observe execution of warrant
2
(1)
If:
3
(a) a warrant is being executed in relation to premises; and
4
(b) the occupier of the premises, or another person who
5
apparently represents the occupier, is present at the premises;
6
the occupier or other person is entitled to observe the execution of
7
the warrant.
8
(2) The right to observe the execution of the warrant ceases if the
9
occupier or other person impedes that execution.
10
(3) This section does not prevent the execution of the warrant in 2 or
11
more areas of the premises at the same time.
12
84 Occupier to provide authorised officer with facilities and
13
assistance
14
(1) The occupier of premises to which a warrant relates, or another
15
person who apparently represents the occupier, must provide:
16
(a) an authorised officer executing the warrant; and
17
(b) any person assisting the authorised officer;
18
with all reasonable facilities and assistance for the effective
19
exercise of their powers.
20
(2) A person commits an offence if:
21
(a) the person is subject to subsection (1); and
22
(b) the person fails to comply with that subsection.
23
Penalty for contravention of this subsection: 30 penalty units.
24
25
Part 6 Investigative powers
Division 5 General provisions relating to seizure
Section 85
66 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
Division 5--General provisions relating to seizure
1
85 Copies of seized things to be provided
2
(1) If an enforcement warrant is being executed and an authorised
3
officer seizes:
4
(a) a document, film, computer file or other thing that can be
5
readily copied; or
6
(b) a storage device, the information in which can be readily
7
copied;
8
the authorised officer must, if requested to do so by the occupier of
9
the premises, or another person who apparently represents the
10
occupier and who is present when the warrant is executed, give a
11
copy of the thing or the information to the occupier or other person
12
as soon as practicable after the seizure.
13
(2) However, subsection (1) does not apply if possession of the
14
document, film, computer file, thing or information by the occupier
15
or other person could constitute an offence against a law of the
16
Commonwealth.
17
86 Receipts for things seized
18
(1) If a thing is seized under this Part, an authorised officer must
19
provide a receipt for the thing.
20
(2) If 2 or more things are seized, they may be covered in the one
21
receipt.
22
87 Return of seized things
23
(1) Subject to any contrary order of a court, if an authorised officer
24
seizes a thing under this Part, an authorised officer must take
25
reasonable steps to return it if:
26
(a) the reason for its seizure no longer exists or it is decided that
27
it is not to be used in evidence; or
28
(b) the period of 60 days after its seizure ends;
29
Investigative powers Part 6
General provisions relating to seizure Division 5
Section 88
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 67
whichever happens first, unless the thing is forfeited or forfeitable
1
to the Commonwealth or is the subject of a dispute as to
2
ownership.
3
(2) If, apart from this subsection, an authorised officer would be
4
required to take reasonable steps to return a thing under
5
subsection (1) because of paragraph (1)(b), the authorised officer is
6
not required to do so if:
7
(a) proceedings in respect of which the thing may afford
8
evidence were instituted before the end of the 60 days and
9
have not been completed (including an appeal to a court in
10
relation to those proceedings); or
11
(b) the thing may continue to be retained because of an order
12
under section 88; or
13
(c) the Commonwealth, a Commissioner or an authorised officer
14
is otherwise authorised (by a law, or an order of a court, of
15
the Commonwealth or of a State or Territory) to retain,
16
destroy, dispose of or otherwise deal with the thing.
17
(3) A thing that is required to be returned under this section must be
18
returned to the person from whom it was seized (or to the owner if
19
that person is not entitled to possess it).
20
88 Magistrate may permit a thing to be retained
21
(1) An authorised officer may apply to a magistrate for an order
22
permitting the retention of the thing for a further period if:
23
(a) before the end of 60 days after the seizure; or
24
(b) before the end of a period previously specified in an order of
25
a magistrate under this section;
26
proceedings in respect of which the thing may afford evidence
27
have not commenced.
28
(2) If the magistrate is satisfied that it is necessary for the thing to
29
continue to be retained:
30
(a) for the purpose of either or both of the following:
31
(i) an investigation as to whether an offence against this
32
Act or this Act's associated provisions has been
33
committed;
34
Part 6 Investigative powers
Division 5 General provisions relating to seizure
Section 89
68 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
(ii) an investigation as to whether there has been a
1
contravention of a civil penalty provision; or
2
(b) to enable either or both of the following:
3
(i) evidence of an offence mentioned in subparagraph (a)(i)
4
to be secured for the purposes of a prosecution;
5
(ii) evidence of a contravention of a civil penalty provision
6
to be secured for the purposes of civil penalty
7
proceedings;
8
the magistrate may order that the thing may continue to be retained
9
for a period specified in the order (which must not exceed 3 years).
10
(3) Before making the application, the authorised officer must:
11
(a) take reasonable steps to discover who has an interest in the
12
retention of the thing; and
13
(b) if it is practicable to do so, notify each person whom the
14
authorised officer believes to have such an interest of the
15
proposed application.
16
89 Disposal if cannot be returned
17
(1) TEQSA may dispose of a thing in such manner as it considers
18
appropriate if:
19
(a) the thing is seized under this Part; and
20
(b) apart from this section, an authorised officer would be
21
required to take reasonable steps to return the thing to a
22
person; and
23
(c)
either:
24
(i) the authorised officer cannot, despite making reasonable
25
efforts, locate the person; or
26
(ii) the person has refused to take possession of the thing.
27
(2) If the operation of this section would result in an acquisition of
28
property from a person otherwise than on just terms, the
29
Commonwealth is liable to pay a reasonable amount of
30
compensation to the person.
31
(3) If the Commonwealth and the person do not agree on the amount
32
of the compensation, the person may institute proceedings in the
33
Investigative powers Part 6
General provisions relating to seizure Division 5
Section 89
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 69
Federal Court for the recovery from the Commonwealth of such
1
reasonable amount of compensation as the court determines.
2
3
Part 6 Investigative powers
Division 6 Warrants
Section 90
70 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
Division 6--Warrants
1
90 Issuing monitoring warrants
2
Application for warrant
3
(1) An authorised officer may apply to a magistrate for a warrant
4
under this section in relation to premises.
5
Issue of warrant
6
(2) The magistrate may issue the warrant if the magistrate is satisfied,
7
by information on oath or affirmation, that it is reasonably
8
necessary that one or more authorised officers should have access
9
to the premises for the purpose of determining whether this Act or
10
this Act's associated provisions have been, or are being, complied
11
with.
12
(3) However, the magistrate must not issue the warrant unless the
13
authorised officer or some other person has given to the magistrate,
14
either orally or by affidavit, such further information (if any) as the
15
magistrate requires concerning the grounds on which the issue of
16
the warrant is being sought.
17
Content of warrant
18
(4)
The
warrant
must:
19
(a) describe the premises to which the warrant relates; and
20
(b) state that the warrant is issued under this section; and
21
(c) state that the warrant is issued for the purpose of determining
22
whether this Act or this Act's associated provisions have
23
been, or are being, complied with; and
24
(d) authorise one or more authorised officers (whether or not
25
named in the warrant) from time to time while the warrant
26
remains in force:
27
(i) to enter the premises; and
28
(ii) to exercise the powers set out in Divisions 2 and 3 in
29
relation to the premises; and
30
(e) state whether the entry is authorised to be made at any time
31
of the day or during specified hours of the day; and
32
Investigative powers Part 6
Warrants Division 6
Section 91
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 71
(f) specify the day (not more than 6 months after the issue of the
1
warrant) on which the warrant ceases to be in force.
2
91 Issuing enforcement warrants
3
Application for warrant
4
(1) An authorised officer may apply to a magistrate for a warrant
5
under this section in relation to premises.
6
Issue of warrant
7
(2) The magistrate may issue the warrant if the magistrate is satisfied,
8
by information on oath or affirmation, that there are reasonable
9
grounds for suspecting that there is, or there may be within the next
10
72 hours, evidential material on the premises.
11
(3) However, the magistrate must not issue the warrant unless the
12
authorised officer or some other person has given to the magistrate,
13
either orally or by affidavit, such further information (if any) as the
14
magistrate requires concerning the grounds on which the issue of
15
the warrant is being sought.
16
Content of warrant
17
(4)
The
warrant
must:
18
(a) describe the premises to which the warrant relates; and
19
(b) state that the warrant is issued under this section; and
20
(c) specify the kind of evidential material that is to be searched
21
for under the warrant; and
22
(d) name one or more authorised officers; and
23
(e) authorise the authorised officer or authorised officers so
24
named:
25
(i) to enter the premises; and
26
(ii) to exercise the powers set out in Divisions 2, 3 and 5 in
27
relation to the premises; and
28
(f) state whether the entry is authorised to be made at any time
29
of the day or during specified hours of the day; and
30
(g) specify the day (not more than one week after the issue of the
31
warrant) on which the warrant ceases to be in force.
32
Part 6 Investigative powers
Division 6 Warrants
Section 92
72 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
92 Enforcement warrants by telephone, fax etc.
1
Application for warrant
2
(1) An authorised officer may apply to a magistrate by telephone, fax
3
or other electronic means for a warrant under section 91 in relation
4
to premises:
5
(a) in an urgent case; or
6
(b) if the authorised officer believes, on reasonable grounds, that
7
the delay that would occur if an application were made in
8
person would frustrate the effective execution of the warrant.
9
Voice communication
10
(2) The magistrate may require communication by voice to the extent
11
that it is practicable in the circumstances.
12
Information
13
(3) Before applying for the warrant, the authorised officer must
14
prepare an information of the kind mentioned in subsection 91(2)
15
in relation to the premises that sets out the grounds on which the
16
warrant is sought. If it is necessary to do so, the authorised officer
17
may apply for the warrant before the information is sworn or
18
affirmed.
19
Signing of warrant
20
(4) If the magistrate is satisfied:
21
(a) after considering the terms of the information; and
22
(b) after receiving such further information (if any) as the
23
magistrate requires concerning the grounds on which the
24
issue of the warrant is being sought;
25
that there are reasonable grounds for issuing the warrant, the
26
magistrate may complete and sign the same warrant that the
27
magistrate would issue under section 91 if the application had been
28
made under that section.
29
Investigative powers Part 6
Warrants Division 6
Section 92
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 73
Notification
1
(5) If the magistrate completes and signs the warrant, the magistrate
2
must inform the authorised officer, by telephone, fax or other
3
electronic means, of:
4
(a) the terms of the warrant; and
5
(b) the day, and the time, the warrant was signed.
6
Form of warrant
7
(6) The authorised officer must then complete a form of warrant in the
8
same terms as the warrant completed and signed by the magistrate,
9
stating on the form:
10
(a) the name of the magistrate; and
11
(b) the day, and the time, the warrant was signed.
12
Completed form of warrant to be given to magistrate
13
(7) The authorised officer must also, not later than the day after the
14
warrant ceased to be in force or the day of execution of the
15
warrant, whichever is the earlier, send to the magistrate:
16
(a) the form of warrant completed by the authorised officer; and
17
(b) the information referred to in subsection (3), which must
18
have been duly sworn or affirmed.
19
Attachment
20
(8) The magistrate must attach to the documents provided under
21
subsection (7) the warrant signed by the magistrate.
22
Authority of warrant
23
(9) A form of warrant duly completed under subsection (6) is authority
24
for the same powers as are authorised by the warrant signed by the
25
magistrate.
26
(10)
If:
27
(a) it is material, in any proceedings, for a court to be satisfied
28
that an exercise of a power was authorised by this section;
29
and
30
Part 6 Investigative powers
Division 6 Warrants
Section 93
74 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
(b) the warrant signed by the magistrate authorising the exercise
1
of the power is not produced in evidence;
2
the court must assume, unless the contrary is proved, that the
3
exercise of the power was not authorised by such a warrant.
4
93 Offence relating to warrants by telephone, fax etc.
5
An authorised officer commits an offence if:
6
(a) the authorised officer states, in a document that purports to be
7
a form of warrant under section 92, the name of a magistrate,
8
unless that magistrate signed the warrant; or
9
(b) the authorised officer states on a form of warrant under that
10
section a matter that, to the authorised officer's knowledge,
11
departs in a material particular from the terms of the warrant
12
signed by the magistrate under that section; or
13
(c) the authorised officer purports to execute, or present to
14
another person, a document that purports to be a form of
15
warrant under that section that the authorised officer knows:
16
(i) has not been approved by a magistrate under that
17
section; or
18
(ii) departs in a material particular from the terms of a
19
warrant signed by a magistrate under that section; or
20
(d) the authorised officer gives to a magistrate a form of warrant
21
under that section that is not the form of warrant that the
22
authorised officer purported to execute.
23
Penalty: Imprisonment for 2 years.
24
25
Investigative powers Part 6
Authorised officers and identity cards Division 7
Section 94
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 75
Division 7--Authorised officers and identity cards
1
94 Authorised officers
2
(1) TEQSA may, in writing, appoint a member of the staff of TEQSA
3
as an authorised officer for the purposes of this Act.
4
(2) TEQSA must not appoint a person as an authorised officer unless:
5
(a) the person holds the classification of APS Executive Level 1
6
or higher, or an equivalent classification; and
7
(b) TEQSA is satisfied that the person has suitable qualifications
8
and experience to properly exercise the powers of an
9
authorised officer.
10
(3) An authorised officer must, in exercising powers as an authorised
11
officer, comply with any directions of TEQSA.
12
(4) If a direction is given under subsection (3) in writing, the direction
13
is not a legislative instrument.
14
95 Identity cards
15
(1) TEQSA must issue an identity card to an authorised officer.
16
Form of identity card
17
(2) The identity card must:
18
(a) be in the approved form; and
19
(b) contain a recent photograph of the authorised officer.
20
Offence
21
(3) A person commits an offence if:
22
(a) the person has been issued with an identity card; and
23
(b) the person ceases to be an authorised officer; and
24
(c) the person does not, as soon as practicable after so ceasing,
25
return the identity card to TEQSA.
26
Penalty: 1 penalty unit.
27
(4) An offence against subsection (3) is an offence of strict liability.
28
Part 6 Investigative powers
Division 7 Authorised officers and identity cards
Section 95
76 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
Note:
For strict liability, see section 6.1 of the Criminal Code.
1
Defence: card lost or destroyed
2
(5) Subsection (3) does not apply if the identity card was lost or
3
destroyed.
4
Note:
A defendant bears an evidential burden in relation to the matter in this
5
subsection: see subsection 13.3(3) of the Criminal Code.
6
Authorised officer must carry card
7
(6) An authorised officer must carry his or her identity card at all times
8
when exercising powers as an authorised officer.
9
10
Investigative powers Part 6
Powers of magistrates Division 8
Section 96
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 77
Division 8--Powers of magistrates
1
96 Federal Magistrates--consent to nomination
2
(1) A Federal Magistrate may, by writing, consent to be nominated by
3
the Minister under subsection (2).
4
(2) The Minister may, by writing, nominate a Federal Magistrate in
5
relation to whom a consent is in force under subsection (1) to be a
6
magistrate for the purposes of this Act.
7
97 Magistrates--personal capacity
8
Powers conferred personally
9
(1) A power conferred on a magistrate by this Part is conferred on the
10
magistrate:
11
(a) in a personal capacity; and
12
(b) not as a court or a member of a court.
13
Powers need not be accepted
14
(2) The magistrate (other than a Federal Magistrate) need not accept
15
the power conferred.
16
Protection and immunity
17
(3) A magistrate exercising a power conferred by this Part has the
18
same protection and immunity as if he or she were exercising the
19
power:
20
(a) as the court of which the magistrate is a member; or
21
(b) as a member of the court of which the magistrate is a
22
member.
23
24
Part 7 Enforcement
Division 1 Administrative sanctions
Section 98
78 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
Part 7--Enforcement
1
Division 1--Administrative sanctions
2
Subdivision A--Sanctions
3
98 Provider is non-compliant
4
This Subdivision applies if a registered higher education provider
5
has:
6
(a) failed to meet the Threshold Standards; or
7
(b) breached a condition imposed on its registration; or
8
(c) breached a condition imposed on the accreditation of a course
9
of study accredited in relation to the provider; or
10
(d) failed to ensure that an accredited course in relation to the
11
provider meets the Provider Course Accreditation Standards;
12
or if circumstances exist in relation to the provider that are of a
13
kind specified in regulations made for the purposes of this section.
14
Note:
TEQSA may impose conditions under section 32 or 53 instead of, or
15
in addition to, applying a sanction under this Subdivision.
16
99 Sanctions about accredited course
17
For a failure or breach relating to a course of study, TEQSA may:
18
(a) shorten the period of accreditation of the course of study; or
19
(b) cancel the accreditation of the course of study.
20
100 Shortening period of registration
21
TEQSA may shorten the period of the provider's registration.
22
101 Cancelling registration
23
(1) TEQSA may cancel the provider's registration.
24
(2) However, before doing so, TEQSA must give the provider and the
25
Minister for each relevant State and Territory responsible for
26
higher education:
27
Enforcement Part 7
Administrative sanctions Division 1
Section 102
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 79
(a) a written notice stating that TEQSA intends to make a
1
decision to cancel the provider's registration for specified
2
reasons; and
3
(b) a reasonable opportunity to make representations to TEQSA
4
in relation to the proposed decision.
5
(3) TEQSA must have regard to any representations received under
6
subsection (2).
7
(4) Subsection (2) does not apply if TEQSA is satisfied that the
8
circumstances require immediate action.
9
Subdivision B--Other matters
10
102 Automatic cancellation if provider wound up
11
A registered higher education provider's registration is cancelled,
12
by force of this section, if a winding-up order is made in respect of
13
the provider.
14
103 Seeking registration after cancellation
15
An entity whose registration under Part 3 is cancelled cannot
16
reapply for registration for:
17
(a) 2 years after the cancellation takes effect; or
18
(b) such shorter period as TEQSA considers appropriate.
19
20
Part 7 Enforcement
Division 2 Offences and civil penalty provisions
Section 104
80 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
Division 2--Offences and civil penalty provisions
1
Subdivision A--Offences and civil penalty provisions
2
104 Guide to offences and civil penalty provisions
3
The following is a guide to this Subdivision:
4
·
The offences in this Subdivision need to be read with other
5
Acts, including the Criminal Code and the Crimes Act 1914.
6
For example, the Criminal Code:
7
(a)
sets out fault elements of intention or recklessness
8
for the offences; and
9
(b)
sets out defences such as mistake of fact; and
10
(c)
extends the reach of the offences to, for example, a
11
person who aids or abets the commission of an
12
offence by a provider.
13
·
The civil penalty provisions in this Subdivision need to be
14
read with Subdivisions B and C. For example:
15
(a)
section 120 provides for a defence of mistake of
16
fact; and
17
(b)
section 116 extends the reach of each civil penalty
18
provision to, for example, a person knowingly
19
concerned in a provider's contravention of the civil
20
penalty provision.
21
105 Offering a regulated higher education award if unregistered
22
Offence
23
(1) A higher education provider commits an offence if the higher
24
education provider is not a registered higher education provider.
25
Enforcement Part 7
Offences and civil penalty provisions Division 2
Section 106
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 81
Penalty: 300 penalty units.
1
Civil penalty
2
(2) A higher education provider contravenes this subsection if the
3
higher education provider is not a registered higher education
4
provider.
5
Civil penalty:
600 penalty units.
6
106 Representing offer of a regulated higher education award if
7
unregistered
8
Offence
9
(1) A regulated entity commits an offence if:
10
(a) the entity represents that the entity:
11
(i) is offering, or will offer, a regulated higher education
12
award; or
13
(ii) is conferring, or will confer, a regulated higher
14
education award; and
15
(b) the entity is not a registered higher education provider.
16
Penalty: 300 penalty units.
17
Civil penalty
18
(2) A regulated entity contravenes this subsection if:
19
(a) the entity represents that the entity:
20
(i) is offering, or will offer, a regulated higher education
21
award; or
22
(ii) is conferring, or will confer, a regulated higher
23
education award; and
24
(b) the entity is not a registered higher education provider.
25
Civil penalty:
600 penalty units.
26
Part 7 Enforcement
Division 2 Offences and civil penalty provisions
Section 107
82 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
107 Offering an award without a course of study
1
Offence
2
(1) A regulated entity commits an offence if:
3
(a) the entity offers or confers:
4
(i) an Australian higher education award; or
5
(ii) an overseas higher education award for the completion
6
of a course of study provided wholly or mainly from
7
Australian premises related to the award; and
8
(b) for one or more students, the entity offers or confers the
9
award:
10
(i) without requiring the completion of a course of study;
11
and
12
(ii) not as an honorary award.
13
Penalty: 300 penalty units.
14
Civil penalty
15
(2) A regulated entity contravenes this subsection if:
16
(a) the entity offers or confers:
17
(i) an Australian higher education award; or
18
(ii) an overseas higher education award for the completion
19
of a course of study provided wholly or mainly from
20
Australian premises related to the award; and
21
(b) for one or more students, the entity offers or confers the
22
award:
23
(i) without requiring the completion of a course of study;
24
and
25
(ii) not as an honorary award.
26
Civil penalty:
600 penalty units.
27
108 Regulated entity represents itself as university
28
Offence
29
(1) A regulated entity commits an offence if:
30
Enforcement Part 7
Offences and civil penalty provisions Division 2
Section 108
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 83
(a) the entity uses the word "university" to represent itself, or its
1
operations, as a university in relation to:
2
(i) an Australian course of study; or
3
(ii) an overseas course of study, to the extent that the course
4
of study is, or is to be, provided from Australian
5
premises that are related to an overseas higher education
6
award; or
7
(iii) a regulated higher education award; and
8
(b) the entity is not a registered higher education provider
9
registered in a provider category that permits the use of the
10
word "university".
11
Penalty: 300 penalty units.
12
Civil penalty
13
(2) A regulated entity contravenes this subsection if:
14
(a) the entity uses the word "university" to represent itself, or its
15
operations, as a university in relation to:
16
(i) an Australian course of study; or
17
(ii) an overseas course of study, to the extent that the course
18
of study is, or is to be, provided from Australian
19
premises that are related to an overseas higher education
20
award; or
21
(iii) a regulated higher education award; and
22
(b) the entity is not a registered higher education provider
23
registered in a provider category that permits the use of the
24
word "university".
25
Civil penalty:
600 penalty units.
26
Use of the word "university"
27
(3) Without limiting paragraph (1)(a) or (2)(a), an entity is taken to use
28
the word "university" if the entity:
29
(a) uses a variant of that word; or
30
(b) uses that word, or a variant of that word, by itself or in
31
combination with other words.
32
Part 7 Enforcement
Division 2 Offences and civil penalty provisions
Section 109
84 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
109 Falsely representing entity as a registered higher education
1
provider
2
Offence
3
(1) A regulated entity commits an offence if:
4
(a) the entity represents that the entity is a registered higher
5
education provider; and
6
(b) the representation is untrue.
7
Penalty: 300 penalty units.
8
Civil penalty
9
(2) A regulated entity contravenes this subsection if:
10
(a) the entity represents that the entity is a registered higher
11
education provider; and
12
(b) the representation is untrue.
13
Civil penalty:
600 penalty units.
14
110 Falsely representing that entity provides a course of study
15
leading to a regulated higher education award
16
Offence
17
(1) A regulated entity commits an offence if:
18
(a) the entity represents that it provides all or part of a course of
19
study that leads to a regulated higher education award; and
20
(b) the representation is untrue.
21
Penalty: 120 penalty units.
22
Civil penalty
23
(2) A regulated entity contravenes this subsection if:
24
(a) the entity represents that it provides all or part of a course of
25
study that leads to a regulated higher education award; and
26
(b) the representation is untrue.
27
Civil penalty:
240 penalty units.
28
Enforcement Part 7
Offences and civil penalty provisions Division 2
Section 111
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 85
111 Falsely representing course of study is accredited
1
Offence
2
(1) A regulated entity commits an offence if:
3
(a) the entity represents that a course of study is an accredited
4
course in relation to an entity; and
5
(b) the representation is untrue.
6
Penalty: 120 penalty units.
7
Civil penalty
8
(2) A regulated entity contravenes this subsection if:
9
(a) the entity represents that a course of study is an accredited
10
course in relation to an entity; and
11
(b) the representation is untrue.
12
Civil penalty:
240 penalty units.
13
112 Providing an unaccredited course of study
14
Offence
15
(1) A registered higher education provider commits an offence if:
16
(a) one or more entities provide all or part of a course of study;
17
and
18
(b) the course of study leads to a regulated higher education
19
award offered or conferred by the provider; and
20
(c) the course of study is not an accredited course in relation to
21
the provider.
22
Penalty: 120 penalty units.
23
Civil penalty
24
(2) A registered higher education provider contravenes this subsection
25
if:
26
(a) one or more entities provide all or part of a course of study;
27
and
28
Part 7 Enforcement
Division 2 Offences and civil penalty provisions
Section 113
86 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
(b) the course of study leads to a regulated higher education
1
award offered or conferred by the provider; and
2
(c) the course of study is not an accredited course in relation to
3
the provider.
4
Civil penalty:
240 penalty units.
5
113 Breach of condition of registration
6
A registered higher education provider contravenes this section if:
7
(a) a condition is imposed on the provider's registration; and
8
(b) the provider does an act or omits to do an act; and
9
(c) the act or omission breaches the condition.
10
Civil penalty:
120 penalty units.
11
114 Breach of condition of accreditation
12
A registered higher education provider contravenes this section if:
13
(a) a condition is imposed on the accreditation of a course of
14
study accredited in relation to the provider; and
15
(b) the provider does an act or omits to do an act; and
16
(c) the act or omission breaches the condition.
17
Civil penalty:
120 penalty units.
18
Subdivision B--Obtaining a civil penalty order
19
115 Civil penalty orders
20
Application for order
21
(1) Within 6 years of a person (the wrongdoer) contravening a civil
22
penalty provision, TEQSA may apply, on behalf of the
23
Commonwealth, to:
24
(a) the Federal Court; or
25
(b) the Federal Magistrates Court;
26
for an order that the wrongdoer pay the Commonwealth a
27
pecuniary penalty.
28
Enforcement Part 7
Offences and civil penalty provisions Division 2
Section 116
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 87
Court may order wrongdoer to pay pecuniary penalty
1
(2) If the Court is satisfied that the wrongdoer has contravened the
2
civil penalty provision, the Court may order the wrongdoer to pay
3
to the Commonwealth for each contravention the pecuniary penalty
4
that the Court determines is appropriate (but not exceeding the
5
amount specified for the provision).
6
(3) An order under subsection (2) is to be known as a civil penalty
7
order.
8
Determining amount of pecuniary penalty
9
(4) In determining the pecuniary penalty, the Court must have regard
10
to all relevant matters, including:
11
(a) the nature and extent of the contravention; and
12
(b) the nature and extent of any loss or damage suffered as a
13
result of the contravention; and
14
(c) the circumstances in which the contravention took place; and
15
(d) whether the person has previously been found by the Court in
16
proceedings under this Act to have engaged in any similar
17
conduct.
18
Civil evidence and procedure rules apply
19
(5) The Court must apply the rules of evidence and procedure for civil
20
matters when hearing proceedings for a civil penalty order.
21
Note:
The standard of proof in civil proceedings is the balance of
22
probabilities: see section 140 of the Evidence Act 1995.
23
Conduct contravening 2 or more provisions
24
(6) If conduct contravenes 2 or more civil penalty provisions,
25
proceedings may be instituted under this section against a person
26
for the contravention of any one or more of those provisions.
27
However, the person is not liable to more than one pecuniary
28
penalty under this section for the same conduct.
29
116 Involvement in contravening civil penalty provision
30
(1) A person must not:
31
Part 7 Enforcement
Division 2 Offences and civil penalty provisions
Section 117
88 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
(a) attempt to contravene a civil penalty provision; or
1
(b) aid, abet, counsel or procure a contravention of a civil
2
penalty provision; or
3
(c) induce (by threats, promises or otherwise) a contravention of
4
a civil penalty provision; or
5
(d) be in any way directly or indirectly knowingly concerned in,
6
or party to, a contravention of a civil penalty provision; or
7
(e) conspire with others to contravene a civil penalty provision.
8
Civil penalty
9
(2) A person who contravenes subsection (1) in relation to a civil
10
penalty provision is taken to have contravened the civil penalty
11
provision.
12
117 Recovery of a pecuniary penalty
13
A pecuniary penalty is a civil debt payable to the Commonwealth.
14
The Commonwealth may enforce the civil penalty order as if it
15
were an order made in civil proceedings against the person to
16
recover a debt due by the person. The debt arising from the order is
17
taken to be a judgment debt.
18
118 2 or more proceedings may be heard together
19
The Federal Court or the Federal Magistrates Court may direct that
20
2 or more proceedings for civil penalty orders are to be heard
21
together.
22
119 Continuing and multiple contraventions of civil penalty
23
provisions
24
(1) If, under a civil penalty provision, an act or thing is required to be
25
done within a particular period or before a particular time, then the
26
obligation to do that act or thing continues (even if the period has
27
ended or the time has passed) until the act or thing is done.
28
(2) A person commits a separate contravention of the civil penalty
29
provision in respect of each day (including a day of the making of
30
Enforcement Part 7
Offences and civil penalty provisions Division 2
Section 120
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 89
a relevant civil penalty order or any subsequent day) the person
1
refuses or fails to comply with that requirement.
2
(3) The Federal Court or the Federal Magistrates Court may make a
3
single order to pay a pecuniary penalty for all the contraventions
4
described in subsection (2), but the penalty must not exceed the
5
sum of the maximum penalties that could be ordered if a separate
6
penalty were ordered for each of the contraventions.
7
120 Mistake of fact
8
(1) A person is not liable to have a civil penalty order made against the
9
person for a contravention of a civil penalty provision if:
10
(a) at or before the time of the conduct constituting the
11
contravention, the person:
12
(i) considered whether or not facts existed; and
13
(ii) was under a mistaken but reasonable belief about those
14
facts; and
15
(b) had those facts existed, the conduct would not have
16
constituted a contravention of the civil penalty provision.
17
(2) For the purposes of subsection (1), a person may be regarded as
18
having considered whether or not facts existed if:
19
(a) the person had considered, on a previous occasion, whether
20
those facts existed in the circumstances surrounding that
21
occasion; and
22
(b) the person honestly and reasonably believed that the
23
circumstances surrounding the present occasion were the
24
same, or substantially the same, as those surrounding the
25
previous occasion.
26
(3) A person who wishes to rely on subsection (1) or (2) in
27
proceedings for a civil penalty order bears an evidential burden in
28
relation to that matter.
29
Part 7 Enforcement
Division 2 Offences and civil penalty provisions
Section 121
90 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
Subdivision C--Civil penalty proceedings and criminal
1
proceedings
2
121 Civil proceedings after criminal proceedings
3
The Federal Court or the Federal Magistrates Court must not make
4
a civil penalty order against a person for a contravention of a civil
5
penalty provision if the person has been convicted of an offence
6
constituted by conduct that is substantially the same as the conduct
7
constituting the contravention.
8
122 Criminal proceedings during civil proceedings
9
(1) Proceedings for a civil penalty order against a person for a
10
contravention of a civil penalty provision are stayed if:
11
(a) criminal proceedings are started or have already been started
12
against the person for an offence; and
13
(b) the offence is constituted by conduct that is substantially the
14
same as the conduct alleged to constitute the contravention.
15
(2) The proceedings for the order may be resumed if the person is not
16
convicted of the offence. Otherwise, the proceedings for the order
17
are dismissed.
18
123 Criminal proceedings after civil proceedings
19
Criminal proceedings may be started against a person for conduct
20
that is substantially the same as conduct constituting a
21
contravention of a civil penalty provision regardless of whether a
22
civil penalty order has been made against the person.
23
124 Evidence given in proceedings for civil penalty not admissible in
24
criminal proceedings
25
Evidence of information given, or evidence of production of
26
documents, by an individual is not admissible in criminal
27
proceedings against the individual if:
28
(a) the individual previously gave the evidence or produced the
29
documents in proceedings for a civil penalty order against the
30
Enforcement Part 7
Offences and civil penalty provisions Division 2
Section 124
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 91
individual for a contravention of a civil penalty provision
1
(whether or not the order was made); and
2
(b) the conduct alleged to constitute the offence is substantially
3
the same as the conduct that was claimed to constitute the
4
contravention.
5
However, this does not apply to a criminal proceeding in respect of
6
the falsity of the evidence given by the individual in the
7
proceedings for the civil penalty order.
8
9
Part 7 Enforcement
Division 3 Enforceable undertakings
Section 125
92 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
Division 3--Enforceable undertakings
1
125 Acceptance of undertakings
2
(1) TEQSA may accept any of the following undertakings given by a
3
regulated entity:
4
(a) a written undertaking given by the entity that the entity will,
5
in order to comply with this Act or this Act's associated
6
provisions, take specified action;
7
(b) a written undertaking given by the entity that the entity will,
8
in order to comply with this Act or this Act's associated
9
provisions, refrain from taking specified action;
10
(c) a written undertaking given by the entity that the entity will
11
take specified action directed towards ensuring that the entity
12
does not contravene this Act or this Act's associated
13
provisions, or is unlikely to contravene this Act or those
14
associated provisions, in the future.
15
(2) The undertaking must be expressed to be an undertaking under this
16
section.
17
(3) The regulated entity may withdraw or vary the undertaking at any
18
time, but only with the consent of TEQSA.
19
(4) TEQSA may, by written notice given to the regulated entity, cancel
20
the undertaking.
21
(5) TEQSA may publish the undertaking on the Register.
22
126 Enforcement of undertakings
23
(1)
If:
24
(a) a regulated entity has given an undertaking under
25
section 125; and
26
(b) the undertaking has not been withdrawn or cancelled; and
27
(c) TEQSA considers that the entity has breached the
28
undertaking;
29
TEQSA may apply, on behalf of the Commonwealth, to the
30
Federal Court or the Federal Magistrates Court for an order under
31
subsection (2).
32
Enforcement Part 7
Enforceable undertakings Division 3
Section 126
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 93
(2) If the Court is satisfied that the regulated entity has breached the
1
undertaking, the Court may make any or all of the following
2
orders:
3
(a) an order directing the entity to comply with the undertaking;
4
(b) an order directing the entity to pay to the Commonwealth an
5
amount up to the amount of any financial benefit that the
6
entity has obtained directly or indirectly and that is
7
reasonably attributable to the breach;
8
(c) any order that the Court considers appropriate directing the
9
entity to compensate any other person who has suffered loss
10
or damage as a result of the breach;
11
(d) any other order that the Court considers appropriate.
12
13
Part 7 Enforcement
Division 4 Injunctions
Section 127
94 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
Division 4--Injunctions
1
127 Injunctions
2
Restraining injunctions
3
(1) If a regulated entity has engaged, is engaging or is proposing to
4
engage, in any conduct that would be in contravention of:
5
(a) this Act; or
6
(b) this Act's associated provisions;
7
the Federal Court or the Federal Magistrates Court may, on the
8
application of TEQSA (on behalf of the Commonwealth), grant an
9
injunction:
10
(c) restraining the entity from engaging in the conduct; and
11
(d) if, in the Court's opinion, it is desirable to do so--requiring
12
the entity to do a thing.
13
Performance injunctions
14
(2)
If:
15
(a) a regulated entity has refused or failed, or is refusing or
16
failing, or is proposing to refuse or fail, to do a thing; and
17
(b) the refusal or failure was, is or would be in contravention of
18
this Act or this Act's associated provisions;
19
the Federal Court or the Federal Magistrates Court may, on the
20
application of TEQSA (on behalf of the Commonwealth), grant an
21
injunction requiring the entity to do that thing.
22
128 Interim injunctions
23
Before deciding an application for an injunction under section 127,
24
the Federal Court or the Federal Magistrates Court may grant an
25
interim injunction:
26
(a) restraining a regulated entity from engaging in conduct; or
27
(b) requiring a regulated entity to do a thing.
28
Enforcement Part 7
Injunctions Division 4
Section 129
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 95
129 Discharging or varying injunctions
1
The Federal Court or the Federal Magistrates Court may discharge
2
or vary an injunction granted under this Division.
3
130 Certain limits on granting injunctions not to apply
4
Restraining injunctions
5
(1) The power of the Federal Court or the Federal Magistrates Court
6
under this Division to grant an injunction restraining a regulated
7
entity from engaging in conduct may be exercised:
8
(a) whether or not it appears to the Court that the entity intends
9
to engage again, or to continue to engage, in conduct of that
10
kind; and
11
(b) whether or not the entity has previously engaged in conduct
12
of that kind; and
13
(c) whether or not there is an imminent danger of substantial
14
damage to any other person if the entity engages in conduct
15
of that kind.
16
Performance injunctions
17
(2) The power of the Federal Court or the Federal Magistrates Court
18
under this Division to grant an injunction requiring a regulated
19
entity to do a thing may be exercised:
20
(a) whether or not it appears to the Court that the entity intends
21
to refuse or fail again, or to continue to refuse or fail, to do
22
that thing; and
23
(b) whether or not the entity has previously refused or failed to
24
do that thing; and
25
(c) whether or not there is an imminent danger of substantial
26
damage to any other person if the entity refuses or fails to do
27
that thing.
28
131 Other powers of the Court unaffected
29
The powers conferred on the Federal Court or the Federal
30
Magistrates Court under this Division are in addition to, and not
31
Part 7 Enforcement
Division 4 Injunctions
Section 131
96 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
instead of, any other powers of the Court, whether conferred by
1
this Act or otherwise.
2
3
Tertiary Education Quality and Standards Agency Part 8
Establishment, functions and powers of TEQSA Division 1
Section 132
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 97
Part 8--Tertiary Education Quality and Standards
1
Agency
2
Division 1--Establishment, functions and powers of
3
TEQSA
4
132 Establishment
5
(1) The Tertiary Education Quality and Standards Agency (TEQSA) is
6
established by this section.
7
(2) Each State and Territory Minister who is responsible for higher
8
education must be consulted if TEQSA is to be abolished.
9
133 Constitution
10
TEQSA consists of:
11
(a) a Chief Commissioner; and
12
(b) 4 other Commissioners.
13
Note 1:
TEQSA does not have a legal identity separate from the
14
Commonwealth.
15
Note 2:
The Chief Commissioner and 2 other Commissioners are full-time,
16
while the remaining 2 Commissioners are part-time (see section 138).
17
134 Functions and powers
18
(1) TEQSA has the following functions:
19
(a) to register regulated entities as registered higher education
20
providers in accordance with this Act;
21
(b) to accredit courses of study in accordance with this Act;
22
(c) to investigate whether this Act or this Act's associated
23
provisions have been or are being complied with, including
24
by:
25
(i) conducting compliance assessments and quality
26
assessments; and
27
(ii) conducting accreditation assessments of accredited
28
courses;
29
Part 8 Tertiary Education Quality and Standards Agency
Division 1 Establishment, functions and powers of TEQSA
Section 134
98 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
(d) to advise and make recommendations to the Minister on
1
matters relating to the quality or regulation of higher
2
education providers, if requested by the Minister or on its
3
own initiative;
4
(e) to collect, analyse, interpret and disseminate information
5
relating to:
6
(i) higher education providers; and
7
(ii) regulated higher education awards; and
8
(iii) quality assurance practice, and quality improvement, in
9
higher education; and
10
(iv) the Higher Education Standards Framework;
11
(f) to advise and make recommendations to a higher education
12
provider on matters relating to the Threshold Standards, if
13
requested by the provider in the approved form;
14
(g) to conduct training to improve the quality of higher
15
education;
16
(h) to make resources and facilities available to the Panel for the
17
purposes of enabling the Panel to perform its functions;
18
(i) to give the Secretary an independent assessment of
19
information the Secretary provides about higher education
20
providers, that uses assessment criteria provided by the
21
Secretary;
22
(j) to cooperate with its counterparts in other countries;
23
(k) to develop service standards that TEQSA must meet in
24
performing its functions;
25
(l) any function determined under subsection (5);
26
(m) such other functions as are conferred on TEQSA by or under
27
this Act or any other Commonwealth law.
28
Note:
An example for paragraph (m) is TEQSA's functions under the
29
Education Services for Overseas Students Act 2000.
30
(2) Without limiting paragraph (1)(m), that paragraph includes a
31
function conferred on TEQSA by an authorisation made for the
32
purposes of a Commonwealth law.
33
Note:
An example would be if the Minister authorised TEQSA to consider
34
whether to consent to a company using "university" in its name for the
35
purposes of section 147 of the Corporations Act 2001.
36
Tertiary Education Quality and Standards Agency Part 8
Establishment, functions and powers of TEQSA Division 1
Section 135
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 99
(3) TEQSA may perform its functions within or outside Australia.
1
(4) TEQSA has the power to do all things that are necessary or
2
convenient to be done for or in connection with the performance of
3
its functions.
4
(5) The Minister may, by legislative instrument, determine other
5
functions for TEQSA that relate to higher education.
6
135 Independence of TEQSA
7
Subject to section 136, TEQSA is not subject to direction from
8
anyone in relation to the performance of its functions or the
9
exercise of its powers.
10
136 Minister may give directions to TEQSA
11
(1) The Minister may, by legislative instrument, give a direction to
12
TEQSA if the Minister considers that the direction is necessary to
13
protect the integrity of the higher education sector.
14
Note:
Section 42 (disallowance) and Part 6 (sunsetting) of the Legislative
15
Instruments Act 2003 do not apply to the direction (see sections 44
16
and 54 of that Act).
17
(2) However, the Minister must not give a direction about, or in
18
relation to, a particular regulated entity.
19
(3) TEQSA must comply with a direction given under subsection (1).
20
137 TEQSA has privileges and immunities of the Crown
21
TEQSA has the privileges and immunities of the Crown in right of
22
the Commonwealth.
23
24
Part 8 Tertiary Education Quality and Standards Agency
Division 2 Appointment of Commissioners
Section 138
100 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
Division 2--Appointment of Commissioners
1
138 Appointment
2
(1) The Chief Commissioner is to be appointed by the Minister, by
3
written instrument, on a full-time basis.
4
(2) Two further Commissioners are to be appointed by the Minister, by
5
written instrument, on a full-time basis.
6
(3) Two further Commissioners are to be appointed by the Minister, by
7
written instrument, on a part-time basis.
8
(4) A person may only be appointed as the Chief Commissioner, or as
9
a Commissioner, if:
10
(a) the Minister is satisfied that the person has appropriate
11
qualifications, knowledge or experience; and
12
(b) the Minister has consulted the Research Minister about the
13
proposed appointment.
14
Note:
A Commissioner is eligible for reappointment: see the Acts
15
Interpretation Act 1901.
16
139 Term of appointment
17
A Commissioner holds office for the period specified in the
18
instrument of appointment. The period must not exceed 5 years.
19
140 Remuneration and allowances
20
(1) A Commissioner is to be paid the remuneration that is determined
21
by the Remuneration Tribunal. If no determination of that
22
remuneration by the Tribunal is in operation, the Commissioner is
23
to be paid the remuneration that is determined, in writing, by the
24
Minister.
25
(2) A Commissioner is to be paid the allowances that are determined,
26
in writing, by the Minister.
27
(3) This section has effect subject to the Remuneration Tribunal Act
28
1973.
29
Tertiary Education Quality and Standards Agency Part 8
Appointment of Commissioners Division 2
Section 141
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 101
141 Leave of absence
1
(1) A full-time Commissioner has the recreation leave entitlements
2
that are determined by the Remuneration Tribunal.
3
(2) The Minister may grant a full-time Commissioner leave of
4
absence, other than recreation leave, on the terms and conditions as
5
to remuneration or otherwise that the Minister determines.
6
(3) The Chief Commissioner may grant leave of absence to a part-time
7
Commissioner on the terms and conditions that the Chief
8
Commissioner determines.
9
142 Outside employment
10
(1) A full-time Commissioner must not engage in paid employment
11
outside the duties of his or her office without the Minister's
12
approval.
13
(2) A part-time Commissioner must not engage in any paid
14
employment that, in the Minister's opinion, conflicts or may
15
conflict with the proper performance of his or her duties.
16
143 Disclosure of interests to the Minister
17
(1) A Commissioner must give written notice to the Minister of all
18
interests, pecuniary or otherwise, that the Commissioner has or
19
acquires that conflict or could conflict with the proper performance
20
of the Commissioner's functions.
21
(2) The notice must be given to the Minister as soon as practicable
22
after the Commissioner becomes aware of the potential for conflict
23
of interest.
24
144 Other terms and conditions
25
A Commissioner holds office on the terms and conditions (if any)
26
in relation to matters not covered by this Act that are determined,
27
in writing, by the Minister.
28
Part 8 Tertiary Education Quality and Standards Agency
Division 2 Appointment of Commissioners
Section 145
102 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
145 Resignation
1
(1) A Commissioner may resign his or her appointment by giving the
2
Minister a written resignation.
3
(2) The resignation takes effect on the day it is received by the
4
Minister or, if a later day is specified in the resignation, on that
5
later day.
6
Note:
If the Chief Commissioner resigns, he or she also resigns his or her
7
position as the Chief Executive Officer. This does not prevent a
8
person who is both the Chief Commissioner and Chief Executive
9
Officer from being reappointed only as a Commissioner.
10
146 Termination of appointment
11
(1) The Minister may terminate the appointment of a Commissioner:
12
(a) for misbehaviour or physical or mental incapacity; or
13
(b) if the Commissioner:
14
(i) becomes bankrupt; or
15
(ii) applies to take the benefit of any law for the relief of
16
bankrupt or insolvent debtors; or
17
(iii) compounds with his or her creditors; or
18
(iv) makes an assignment of his or her remuneration for the
19
benefit of his or her creditors; or
20
(c) if the Commissioner is a full-time Commissioner and is
21
absent, except on leave of absence, for 14 consecutive days
22
or for 30 days in any 12 months; or
23
(d) if the Commissioner is a part-time Commissioner and is
24
absent, except on leave of absence, from 3 consecutive
25
TEQSA meetings; or
26
(e) the Commissioner engages in paid employment contrary to
27
section 142; or
28
(f) if the Commissioner fails, without reasonable excuse, to
29
comply with section 143 or 150.
30
(2) The Minister must terminate the appointment of a Commissioner if
31
the Commissioner becomes an executive officer of a higher
32
education provider.
33
Tertiary Education Quality and Standards Agency Part 8
Appointment of Commissioners Division 2
Section 147
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 103
147 Acting appointments
1
Acting Chief Commissioner
2
(1) The Minister may, by written instrument, appoint a Commissioner
3
to act as the Chief Commissioner:
4
(a) during a vacancy in the office of the Chief Commissioner
5
(whether or not an appointment has previously been made to
6
the office); or
7
(b) during any period, or during all periods, when the Chief
8
Commissioner:
9
(i) is absent from duty or from Australia; or
10
(ii) is, for any reason, unable to perform the duties of the
11
office.
12
Acting Commissioner
13
(2) The Minister may, by written instrument, appoint a person to act as
14
a Commissioner (other than the Chief Commissioner):
15
(a) during a vacancy in the office of the Commissioner (whether
16
or not an appointment has previously been made to the
17
office); or
18
(b) during any period, or during all periods, when the
19
Commissioner:
20
(i) is absent from duty or from Australia; or
21
(ii) is, for any reason, unable to perform the duties of the
22
office.
23
Requirements before appointing a person to act
24
(3) A person may only be appointed to act as the Chief Commissioner,
25
or as a Commissioner, if:
26
(a) the Minister is satisfied that the person has appropriate
27
qualifications, knowledge or experience; and
28
(b) the Minister has consulted the Research Minister about the
29
proposed appointment.
30
Part 8 Tertiary Education Quality and Standards Agency
Division 2 Appointment of Commissioners
Section 147
104 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
Validation
1
(4) Anything done by or in relation to a person purporting to act under
2
an appointment is not invalid merely because:
3
(a) the occasion for the appointment had not arisen; or
4
(b) there was a defect or irregularity in connection with the
5
appointment; or
6
(c) the appointment had ceased to have effect; or
7
(d) the occasion to act had not arisen or had ceased.
8
Note:
For further provisions about acting appointments, see the Acts
9
Interpretation Act 1901.
10
11
Tertiary Education Quality and Standards Agency Part 8
TEQSA procedures Division 3
Section 148
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 105
Division 3--TEQSA procedures
1
Subdivision A--Meetings
2
148 Times and places of meetings
3
(1) The Chief Commissioner must ensure that such meetings are held
4
as are necessary for the efficient performance of TEQSA's
5
functions.
6
(2) Meetings are to be held at such times and places as the Chief
7
Commissioner decides.
8
(3) The Chief Commissioner must convene a meeting if requested, in
9
writing, by at least 2 of the other Commissioners.
10
149 Conduct of meetings
11
Presiding at meetings
12
(1) The Chief Commissioner presides at all meetings at which he or
13
she is present.
14
(2) If the Chief Commissioner is not present at a meeting, a full-time
15
Commissioner:
16
(a) nominated by the Chief Commissioner; and
17
(b) present at the meeting;
18
must preside.
19
Quorum
20
(3) At a meeting of TEQSA, a quorum is constituted by 3
21
Commissioners.
22
Rules of procedure
23
(4) TEQSA may, subject to this Division, regulate proceedings at its
24
meetings as it considers appropriate.
25
Note:
Section 33B of the Acts Interpretation Act 1901 provides for
26
participation in meetings by telephone etc.
27
Part 8 Tertiary Education Quality and Standards Agency
Division 3 TEQSA procedures
Section 150
106 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
Voting
1
(5) The person presiding at a meeting of TEQSA has a deliberative
2
vote but, if the votes are equal, does not have a casting vote.
3
Minutes
4
(6) TEQSA must ensure that minutes of its meetings are kept.
5
150 Disclosure of interests
6
(1) If a Commissioner has an interest, pecuniary or otherwise, in a
7
matter being considered, or about to be considered, at a meeting,
8
the Commissioner must disclose the nature of that interest to the
9
other Commissioners.
10
(2) The disclosure must be made as soon as possible after the relevant
11
facts have come to the Commissioner's knowledge.
12
(3) The disclosure must be recorded in the minutes of the meeting.
13
(4) Unless TEQSA otherwise determines, the Commissioner:
14
(a) must not be present during TEQSA's deliberation on the
15
matter; and
16
(b) must not take part in TEQSA's decision on the matter.
17
(5) For the purposes of TEQSA making a determination under
18
subsection (4), the Commissioner:
19
(a) must not be present during any of TEQSA's deliberations for
20
the purpose of making the determination; and
21
(b) must not take part in making the determination.
22
(6) A determination under subsection (4) must be recorded in the
23
minutes of the meeting.
24
Subdivision B--Decisions without meetings
25
151 Decisions without meetings
26
(1) A decision is taken to have been made at a meeting of TEQSA if:
27
Tertiary Education Quality and Standards Agency Part 8
TEQSA procedures Division 3
Section 152
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 107
(a) without meeting, a majority of Commissioners indicate
1
agreement with the proposed decision in accordance with the
2
method determined by TEQSA under subsection (2); and
3
(b) all Commissioners were informed of the proposed decision,
4
or reasonable efforts were made to inform all Commissioners
5
of the proposed decision.
6
(2) Subsection (1) applies if TEQSA:
7
(a) has determined that it applies; and
8
(b) has determined the method by which Commissioners are to
9
indicate agreement with proposed decisions.
10
152 Record of decisions
11
TEQSA must keep a record of decisions made in accordance with
12
section 151.
13
14
Part 8 Tertiary Education Quality and Standards Agency
Division 4 Chief Executive Officer
Section 153
108 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
Division 4--Chief Executive Officer
1
153 Chief Executive Officer
2
(1) There is to be a Chief Executive Officer of TEQSA.
3
(2) The Chief Commissioner is the Chief Executive Officer.
4
154 Functions and powers of the Chief Executive Officer
5
(1) The Chief Executive Officer is responsible for the management
6
and administration of TEQSA.
7
(2) All acts and things done in the name of, or on behalf of, TEQSA by
8
the Chief Executive Officer are taken to have been done by
9
TEQSA.
10
155 Minister may give directions to Chief Executive Officer
11
(1) The Minister may, by legislative instrument, give written directions
12
to the Chief Executive Officer about the performance of his or her
13
functions.
14
Note:
Section 42 (disallowance) and Part 6 (sunsetting) of the Legislative
15
Instruments Act 2003 do not apply to the direction (see sections 44
16
and 54 of that Act).
17
(2) The Chief Executive Officer must comply with a direction under
18
subsection (1).
19
(3) Subsection (2) does not apply to the extent that the direction relates
20
to the Chief Executive Officer's performance of functions, or
21
exercise of powers, under the Public Service Act 1999 in relation to
22
TEQSA.
23
24
Tertiary Education Quality and Standards Agency Part 8
Staff Division 5
Section 156
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 109
Division 5--Staff
1
156 Staff
2
(1) The staff of TEQSA are to be persons engaged under the Public
3
Service Act 1999.
4
(2) For the purposes of the Public Service Act 1999:
5
(a) the Chief Executive Officer and the staff of TEQSA together
6
constitute a Statutory Agency; and
7
(b) the Chief Executive Officer is the Head of that Statutory
8
Agency.
9
157 Staff to be made available to TEQSA
10
(1) TEQSA is to be assisted by:
11
(a) officers and employees of Commonwealth authorities whose
12
services are made available to TEQSA in connection with the
13
performance of TEQSA's functions or the exercise of its
14
powers; and
15
(b) persons whose services are made available under
16
arrangements made under subsection (2).
17
(2) The Chief Executive Officer may arrange for officers or employees
18
of an appropriate State or Territory authority to be made available
19
to TEQSA to perform services in connection with the performance
20
of TEQSA's functions or the exercise of its powers.
21
(3) An arrangement under subsection (2) may provide for the
22
Commonwealth to reimburse a State or Territory with respect to
23
the services of a person to whom the arrangement relates.
24
(4) When performing services for TEQSA under this section, a person
25
is subject to the directions of the Chief Executive Officer.
26
27
Part 8 Tertiary Education Quality and Standards Agency
Division 6 Fees
Section 158
110 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
Division 6--Fees
1
158 Fees
2
(1) TEQSA may, by legislative instrument, determine fees that
3
TEQSA may charge for things done in the performance of its
4
functions.
5
(2) TEQSA may, in the determination under subsection (1), determine
6
the way in which a fee is to be worked out.
7
(3) TEQSA may, in the determination under subsection (1), determine
8
other matters relating to the payment of fees, including:
9
(a) the circumstances in which fees may be paid in instalments;
10
and
11
(b) the circumstances in which fees may be set off against
12
another amount payable; and
13
(c) the circumstances in which fees may be waived.
14
(4) The fees determined under subsection (1) must not be such as to
15
amount to taxation.
16
17
Tertiary Education Quality and Standards Agency Part 8
Planning Division 7
Section 159
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 111
Division 7--Planning
1
Subdivision A--Strategic plans
2
159 Developing strategic plans
3
(1) TEQSA must prepare a written strategic plan, for a 3-year period,
4
that:
5
(a) defines the principal objectives of TEQSA in performing its
6
functions during that 3-year period; and
7
(b) gives a broad outline of the strategies to be pursued by
8
TEQSA to achieve those objectives.
9
(2) A strategic plan is to relate to:
10
(a) for the first strategic plan--the 3-year period beginning on
11
1 July 2011; and
12
(b) for later strategic plans--a period beginning on the 1 July
13
immediately following the end of the 3-year period to which
14
the previous plan related.
15
(3) A strategic plan prepared under subsection (1) is not a legislative
16
instrument.
17
160 Approving strategic plans
18
(1) TEQSA must give a copy of a strategic plan to the Minister for
19
approval on or before:
20
(a) for the first strategic plan--the end of the period of 3 months
21
beginning on the day this Act receives the Royal Assent; and
22
(b) for later strategic plans--either:
23
(i) 31 January in the last year of the 3-year period to which
24
the previous plan related; or
25
(ii) such later day as the Minister allows.
26
(2) Subsection (1) does not apply to a strategic plan if the Minister
27
decides the plan does not need approval.
28
(3) A strategic plan comes into force on:
29
(a) if the plan needs Ministerial approval--the later of:
30
Part 8 Tertiary Education Quality and Standards Agency
Division 7 Planning
Section 161
112 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
(i) the day it is approved by the Minister; and
1
(ii) the first day of the period to which it relates; or
2
(b) otherwise--the first day of the period to which it relates.
3
161 Varying strategic plans
4
Varying plans with Ministerial approval
5
(1) TEQSA may, with the Minister's approval, vary a strategic plan.
6
(2) When giving the Minister a proposed variation, TEQSA must also
7
give the Minister a proposal for any consequential variation of a
8
relevant annual operational plan.
9
(3) The Minister may, at any time, request TEQSA to vary a strategic
10
plan. TEQSA must comply with the request.
11
(4) A variation approved by the Minister takes effect on the day it is
12
approved.
13
Ministerial approval not required for minor variations
14
(5) Despite subsection (1), TEQSA may vary a strategic plan without
15
the approval of the Minister if the variation is of a minor nature.
16
The variation takes effect on the day it is made.
17
(6) If TEQSA makes a variation of a minor nature, TEQSA must
18
inform the Minister of the variation as soon as is practicable.
19
Subdivision B--Annual operational plans
20
162 Developing annual operational plans
21
(1) TEQSA must give the Minister an annual operational plan relating
22
to the 12-month period beginning on 1 July in each year. TEQSA
23
must do so:
24
(a) for the first operational plan--before the end of the period of
25
3 months beginning on the day this Act receives the Royal
26
Assent; and
27
(b) for later operational plans--before 30 April in that year.
28
Tertiary Education Quality and Standards Agency Part 8
Planning Division 7
Section 163
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 113
(2) An annual operational plan must:
1
(a) set out particulars of the action that TEQSA intends to take
2
during the period to which the plan relates in order to give
3
effect to, or further, the principal objectives set out in the
4
strategic plan applicable to the period; and
5
(b) include such performance indicators as TEQSA considers
6
appropriate against which TEQSA's performance can be
7
assessed during the period to which the plan relates.
8
(3) An annual operational plan is not a legislative instrument.
9
163 Approving annual operational plans
10
(1) The Minister may, by written notice given to TEQSA:
11
(a) approve an annual operational plan; or
12
(b) if the Minister thinks the plan is inconsistent with the
13
relevant strategic plan--request TEQSA to revise and
14
resubmit the annual operational plan accordingly.
15
(2) An annual operational plan comes into force at the later of:
16
(a) the day it is approved by the Minister; and
17
(b) the first day of the period to which it relates.
18
164 Varying annual operational plans
19
Section 161 (other than subsection 161(2)) applies to annual
20
operational plans in the same way as it applies to strategic plans.
21
22
Part 8 Tertiary Education Quality and Standards Agency
Division 8 Annual reports
Section 165
114 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
Division 8--Annual reports
1
165 Annual reports
2
(1) TEQSA must, as soon as practicable after 30 June in each financial
3
year, prepare and give to the Minister, for presentation to the
4
Parliament, a report on its operations during the year.
5
Note:
See also section 34C of the Acts Interpretation Act 1901, which
6
contains provisions about annual reports.
7
(2) TEQSA must include in the report the following:
8
(a) the financial statements required by section 49 of the
9
Financial Management and Accountability Act 1997;
10
(b) an audit report on those statements under section 57 of the
11
Financial Management and Accountability Act 1997.
12
13
Higher Education Standards Panel Part 9
Establishment and functions Division 1
Section 166
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 115
Part 9--Higher Education Standards Panel
1
Division 1--Establishment and functions
2
166 Establishment
3
The Higher Education Standards Panel is established by this
4
section.
5
167 Constitution
6
(1) The Panel consists of:
7
(a) a Panel Chair; and
8
(b) at least 4, and up to 10, other members.
9
Note:
The Panel does not have a legal identity separate from the
10
Commonwealth.
11
(2) When appointing the Panel members, the Minister must:
12
(a) ensure an appropriate balance of professional knowledge and
13
demonstrated expertise; and
14
(b) have regard to the interests of:
15
(i) the States and Territories; and
16
(ii) students undertaking, or proposing to undertake, higher
17
education; and
18
(c) consult the Research Minister about the proposed
19
appointments.
20
168 Functions
21
(1) The functions of the Panel are:
22
(a) to advise and make recommendations to the Minister or the
23
Research Minister:
24
(i) on making and varying; and
25
(ii) on other matters relating to;
26
the Higher Education Standards Framework, if requested by
27
that Minister or on the Panel's own initiative; and
28
Part 9 Higher Education Standards Panel
Division 1 Establishment and functions
Section 169
116 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
(b) to advise and make recommendations to TEQSA on matters
1
relating to the Higher Education Standards Framework, if
2
requested by TEQSA or on the Panel's own initiative.
3
(2) The Panel must consult interested parties when performing its
4
functions.
5
(3) The Panel may, by writing, establish advisory committees to assist
6
it in performing any of its functions.
7
(4) An instrument under subsection (3) is not a legislative instrument.
8
169 Panel has privileges and immunities of the Crown
9
The Panel has the privileges and immunities of the Crown in right
10
of the Commonwealth.
11
12
Higher Education Standards Panel Part 9
Appointment of Panel members Division 2
Section 170
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 117
Division 2--Appointment of Panel members
1
170 Appointment
2
(1) A Panel member is to be appointed by the Minister, by written
3
instrument, on a part-time basis.
4
Note:
A Panel member is eligible for reappointment: see the Acts
5
Interpretation Act 1901.
6
(2) A Commissioner cannot be appointed:
7
(a) as a Panel member; or
8
(b) to act as a Panel member.
9
(3) After consulting the Research Minister, the Minister must appoint
10
one of the Panel members to be the Panel Chair.
11
171 Term of appointment
12
(1) A Panel member holds office for the period specified in the
13
instrument of appointment. The period must not exceed 3 years.
14
(2) A Panel member cannot be appointed for more than 3 consecutive
15
periods.
16
172 Remuneration and allowances
17
(1) A Panel member is to be paid the remuneration that is determined
18
by the Remuneration Tribunal. If no determination of that
19
remuneration by the Tribunal is in operation, the Panel member is
20
to be paid the remuneration that is determined, in writing, by the
21
Minister.
22
(2) A Panel member is to be paid the allowances that are determined,
23
in writing, by the Minister.
24
(3) This section has effect subject to the Remuneration Tribunal Act
25
1973.
26
Part 9 Higher Education Standards Panel
Division 2 Appointment of Panel members
Section 173
118 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
173 Leave of absence
1
(1) The Minister may grant leave of absence to the Panel Chair on the
2
terms and conditions that the Minister determines.
3
(2) The Panel Chair may grant leave of absence to a Panel member on
4
the terms and conditions that the Panel Chair determines.
5
174 Outside employment
6
A Panel member must not engage in any paid employment that, in
7
the Minister's opinion, conflicts or may conflict with the proper
8
performance of his or her duties.
9
175 Disclosure of interests to the Minister
10
(1) A Panel member must give written notice to the Minister of all
11
interests, pecuniary or otherwise, that the Panel member has or
12
acquires that conflict or could conflict with the proper performance
13
of the Panel member's functions.
14
(2) The notice must be given to the Minister as soon as practicable
15
after the Panel member becomes aware of the potential for conflict
16
of interest.
17
176 Other terms and conditions
18
A Panel member holds office on the terms and conditions (if any)
19
in relation to matters not covered by this Act that are determined,
20
in writing, by the Minister.
21
177 Resignation
22
(1) A Panel member may resign his or her appointment by giving the
23
Minister a written resignation.
24
Note:
If the Panel Chair resigns, he or she also resigns his or her position as
25
a Panel member. This does not prevent him or her from being
26
reappointed only as a Panel member.
27
(2) A resignation takes effect on the day it is received by the Minister
28
or, if a later day is specified in the resignation, on that later day.
29
Higher Education Standards Panel Part 9
Appointment of Panel members Division 2
Section 178
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 119
178 Termination of appointment
1
The Minister may terminate the appointment of a Panel member:
2
(a) for misbehaviour or physical or mental incapacity; or
3
(b) if the Panel member:
4
(i) becomes bankrupt; or
5
(ii) applies to take the benefit of any law for the relief of
6
bankrupt or insolvent debtors; or
7
(iii) compounds with his or her creditors; or
8
(iv) makes an assignment of his or her remuneration for the
9
benefit of his or her creditors; or
10
(c) if the Panel member is absent, except on leave of absence,
11
from 3 consecutive meetings of the Panel; or
12
(d) if the Panel member engages in paid employment contrary to
13
section 174; or
14
(e) if the Panel member fails, without reasonable excuse, to
15
comply with section 175 or subsection 182(4).
16
179 Acting appointments
17
(1) The Minister may, by written instrument, appoint a person to act as
18
a Panel member:
19
(a) during a vacancy in the office of the Panel member (whether
20
or not an appointment has previously been made to the
21
office); or
22
(b) during any period, or during all periods, when the Panel
23
member:
24
(i) is absent from duty or from Australia; or
25
(ii) is, for any reason, unable to perform the duties of the
26
office.
27
(2) When appointing a person to act as a Panel member, the Minister
28
must have regard to the matters in subsection 167(2).
29
Note:
A Commissioner cannot be appointed to act as a Panel member (see
30
subsection 170(2)).
31
(3) Anything done by or in relation to a person purporting to act under
32
an appointment is not invalid merely because:
33
Part 9 Higher Education Standards Panel
Division 2 Appointment of Panel members
Section 179
120 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
(a) the occasion for the appointment had not arisen; or
1
(b) there was a defect or irregularity in connection with the
2
appointment; or
3
(c) the appointment had ceased to have effect; or
4
(d) the occasion to act had not arisen or had ceased.
5
Note:
For further provisions about acting appointments, see the Acts
6
Interpretation Act 1901.
7
8
Higher Education Standards Panel Part 9
Panel meetings Division 3
Section 180
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 121
Division 3--Panel meetings
1
180 Holding meetings
2
(1) The Panel Chair may convene such meetings as are necessary for
3
the efficient performance of the Panel's functions.
4
(2) The Panel Chair must convene a meeting of the Panel if requested
5
to do so by TEQSA.
6
(3) A Commissioner may attend all or part of a Panel meeting.
7
181 Quorum
8
At a meeting of the Panel, a quorum is constituted by a majority of
9
the Panel members.
10
182 Procedure of meetings
11
(1) The Minister may, by writing, determine matters relating to the
12
operation of the Panel.
13
(2) If no determination is in force for the purposes of subsection (1),
14
the Panel may operate in the way it determines.
15
(3) The Panel Chair must ensure that minutes of meetings are kept.
16
Disclosure of interest by a member
17
(4)
If:
18
(a) a Panel member has an interest, pecuniary or otherwise, in a
19
matter being considered, or about to be considered, at a
20
meeting; and
21
(b) the interest could conflict with the proper performance of the
22
Panel member's functions;
23
the Panel member must disclose that interest to the other Panel
24
members as soon as practicable.
25
Part 9 Higher Education Standards Panel
Division 3 Panel meetings
Section 182
122 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
Disclosure to be recorded in the minutes of the meeting
1
(5) Any disclosure under subsection (4), and any decision made by the
2
Panel in relation to the disclosure, must be recorded in the minutes
3
of the meeting.
4
Determination not a legislative instrument
5
(6) A determination made under subsection (1) is not a legislative
6
instrument.
7
8
Administrative law matters Part 10
Review of decisions Division 1
Section 183
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 123
Part 10--Administrative law matters
1
Division 1--Review of decisions
2
183 Reviewable decisions
3
For the purposes of this Act, each of the following decisions of
4
TEQSA is a reviewable decision:
5
Note 1:
Reviewable decisions of delegates of TEQSA may be reviewed by the
6
Administrative Appeals Tribunal following a process of internal
7
review by TEQSA.
8
Note 2:
Reviewable decisions not made by delegates may be reviewed by the
9
Administrative Appeals Tribunal (see section 187).
10
11
Reviewable decisions
A decision under paragraph 19(1)(a) that an application for registration in a particular
provider category is inappropriate
A decision under paragraph 19(1)(a) that it would be appropriate for an application
for registration to be in a particular provider category, when that provider category
differs from that sought by the applicant
A decision under subsection 21(3) to extend the time within which TEQSA may
decide an application for registration
A decision under section 21 to register an applicant for registration in a particular
provider category
A decision under section 21 to reject an application for registration
A decision under subsection 32(1) to impose a condition on a registration
A decision under subsection 32(2) to vary a condition imposed on a registration
A decision under section 36 to refuse to renew a registration
A decision under section 38 to refuse to change the category in which a registered
higher education provider is registered
A decision under section 41 to refuse to authorise a registered higher education
provider to self-accredit one or more courses of study
A decision under section 43 to reject an application to withdraw a registration
A decision under subsection 49(3) to extend the time within which TEQSA may
decide an application for accreditation
A decision under section 49 to reject an application for accreditation
A decision under subsection 53(1) to impose a condition on an accreditation
Part 10 Administrative law matters
Division 1 Review of decisions
Section 184
124 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
Reviewable decisions
A decision under subsection 53(2) to vary a condition imposed on an accreditation
A decision under section 56 to refuse to renew an accreditation
A decision under section 99 to shorten the period of an accreditation
A decision under section 99 to cancel an accreditation
A decision under section 100 to shorten the period of a registration
A decision under section 101 to cancel a registration
A decision under subsection 198(4) to enter details on the Register
184 Applying for internal review of reviewable decisions made by
1
delegates of TEQSA
2
(1) This section applies to a reviewable decision if the decision is
3
made by a delegate of TEQSA.
4
(2) A person affected by a reviewable decision who is dissatisfied with
5
the decision may apply to TEQSA for TEQSA to review the
6
decision.
7
(3) The application must:
8
(a) be in the approved form; and
9
(b) set out the reasons for the application; and
10
(c) be accompanied by the fee (if any) determined under
11
section 158 for a review under section 185.
12
Note:
The approved form could, for example, require verification by
13
statutory declaration of certain statements.
14
(4) The application must be made within:
15
(a) 30 days after the applicant is informed of the decision; or
16
(b) such longer period as TEQSA allows.
17
185 Internal review by TEQSA
18
(1) Upon receiving an application under section 184, TEQSA must
19
review the reviewable decision.
20
(2)
TEQSA
may:
21
(a) affirm, vary or revoke the reviewable decision; and
22
Administrative law matters Part 10
Review of decisions Division 1
Section 186
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 125
(b) if TEQSA revokes the decision, make such other decision as
1
TEQSA thinks appropriate.
2
(3) TEQSA's review must be done by:
3
(a) if the reviewable decision was made by a delegate who was a
4
member of the staff of TEQSA--another delegate who:
5
(i) is a Commissioner; or
6
(ii) occupies a position senior to that occupied by the
7
first-mentioned delegate; and
8
(b)
otherwise--TEQSA.
9
(4) TEQSA's decision on review has effect (except for the purposes of
10
section 183) as if it were made under the provision under which the
11
reviewable decision was made.
12
(5) TEQSA must, within 30 days of making its decision on review,
13
notify the applicant, in writing, of:
14
(a) the decision; and
15
(b) the reasons for the decision.
16
186 Deadline for internal review
17
(1) TEQSA must make its decision on review of a reviewable decision
18
within 90 days after receiving the application for review.
19
(2) TEQSA is taken, for the purposes of this Part, to have made a
20
decision under subsection 185(2) affirming the reviewable decision
21
if it has not notified the applicant of its decision on review before
22
the end of that 90-day period.
23
187 Review by the Administrative Appeals Tribunal
24
An application may be made to the Administrative Appeals
25
Tribunal for review of:
26
(a) a reviewable decision if the decision was not made by a
27
delegate of TEQSA; or
28
(b) a decision of TEQSA under subsection 185(2).
29
30
Part 10 Administrative law matters
Division 2 Information management
Section 188
126 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
Division 2--Information management
1
Subdivision A--Restriction on disclosure or use of information
2
188 Offence of unauthorised disclosure or use of information
3
(1) A person commits an offence if:
4
(a) the person obtains higher education information because he
5
or she is, or has been, any of the following (an entrusted
6
person):
7
(i)
a
Commissioner;
8
(ii) a Panel member;
9
(iii) the Chief Executive Officer;
10
(iv) a member of the staff of TEQSA;
11
(v) a person performing a service for TEQSA; and
12
(b)
the
person:
13
(i) discloses the information to another person; or
14
(ii) uses the information.
15
Penalty: Imprisonment for 2 years.
16
Exceptions
17
(2) Subsection (1) does not apply if:
18
(a) the disclosure or use is made for the purposes of this Act or
19
otherwise in connection with the performance of the person's
20
duties as an entrusted person; or
21
(b) the disclosure or use is required or authorised by or under a
22
law of the Commonwealth or a State or Territory.
23
Note:
A defendant bears an evidential burden in relation to a matter in
24
subsection (2) (see subsection 13.3(3) of the Criminal Code).
25
Administrative law matters Part 10
Information management Division 2
Section 189
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 127
Subdivision B--Information sharing
1
189 Disclosing information about breaches of regulatory
2
requirements
3
(1) TEQSA may disclose the kinds of higher education information
4
referred to in subsection (2) to:
5
(a) a person who holds any office or appointment under a law of
6
the Commonwealth, or under a law of a State or Territory; or
7
(b) a member, or special member, of the Australian Federal
8
Police (within the meaning of the Australian Federal Police
9
Act 1979); or
10
(c) a member of the police force, or police service, of a State or
11
Territory; or
12
(d)
an
employee:
13
(i) of a Commonwealth authority or of a State or Territory
14
authority; and
15
(ii) of a kind specified in the Information Guidelines for the
16
purposes of this section; or
17
(e) in the case of a registered provider (within the meaning of the
18
Education Services for Overseas Students Act 2000)--the
19
Fund Manager, or the operator of an applicable tuition
20
assurance scheme, within the meaning of that Act; or
21
(f) a regulatory authority of another country that has
22
responsibility relating to the quality or regulation of higher
23
education.
24
(2) The kinds of higher education information are as follows:
25
(a) information that relates to an offence, or possible offence,
26
against this Act, this Act's associated provisions or the
27
Education Services for Overseas Students Act 2000;
28
(b) information that relates to a contravention, or possible
29
contravention, of:
30
(i) this Act; or
31
(ii)
the
Education Services for Overseas Students Act 2000;
32
or
33
(iii)
the
Higher Education Support Act 2003; or
34
(iv) legislative instruments made under any of those Acts.
35
Part 10 Administrative law matters
Division 2 Information management
Section 190
128 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
190 Disclosing information about proposed cancellations of
1
registration
2
(1) TEQSA may advise the Minister of a State or Territory responsible
3
for higher education if:
4
(a) TEQSA has serious concerns about a registered higher
5
education provider for whom an accredited course is being
6
provided in the State or Territory; or
7
(b) TEQSA proposes to cancel the registration of a registered
8
higher education provider for whom an accredited course is
9
being provided in the State or Territory.
10
(2) If TEQSA advises the Minister of the State or Territory under
11
subsection (1), TEQSA may also advise:
12
(a) a person who holds any office or appointment under a law of
13
the Commonwealth, or under a law of the State or Territory
14
concerned; or
15
(b) employees of the Commonwealth of a kind specified in
16
regulations made for the purposes of this paragraph; or
17
(c) employees of the State or Territory of a kind specified in
18
regulations made for the purposes of this paragraph.
19
191 Disclosing information to Tertiary Admission Centres
20
TEQSA may advise a Tertiary Admission Centre if:
21
(a) TEQSA cancels the accreditation of a course of study; or
22
(b) TEQSA imposes a condition on the registration of a higher
23
education provider that restricts the number of students that
24
may enrol in a particular course of study accredited in
25
relation to the provider; or
26
(c) TEQSA cancels the registration of a registered higher
27
education provider.
28
192 Disclosing information to the Minister and Secretary
29
For the purposes of administering laws relating to higher
30
education, TEQSA may disclose higher education information to:
31
(a) the Minister; or
32
Administrative law matters Part 10
Information management Division 2
Section 193
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 129
(b) a person employed as a member of staff of the Minister under
1
section 13 or 20 of the Members of Parliament (Staff) Act
2
1984; or
3
(c)
the
Secretary.
4
193 Disclosing information to professional bodies etc.
5
TEQSA may disclose higher education information to a body
6
responsible for the regulation of an occupation in a State or
7
Territory.
8
194 Disclosing information to certain government bodies etc.
9
TEQSA may disclose higher education information to:
10
(a) a Commonwealth authority, or a State or Territory authority,
11
if:
12
(i) the authority is of a kind specified in the Information
13
Guidelines for the purposes of this section; and
14
(ii) TEQSA is satisfied that the disclosure is necessary to
15
enable or assist the authority to perform or exercise any
16
of the authority's functions or powers; or
17
(b) a Royal Commission.
18
195 Disclosing information under international cooperative
19
arrangements
20
TEQSA may disclose higher education information to a regulatory
21
authority of another country if:
22
(a) cooperative arrangements exist with that other authority or
23
country that relate to the assessment or regulation of higher
24
education; and
25
(b) the release of the information is consistent with those
26
arrangements.
27
196 Disclosing information to the public
28
TEQSA may disclose to the public higher education information
29
that relates to anything done, or omitted to be done, under this Act.
30
Part 10 Administrative law matters
Division 2 Information management
Section 197
130 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
197 Information about national security
1
Sections 193, 194, 195 and 196 do not apply to national security
2
information (within the meaning of the National Security
3
Information (Criminal and Civil Proceedings) Act 2004).
4
5
National Register of Higher Education Providers Part 11
Section 198
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 131
Part 11--National Register of Higher Education
1
Providers
2
3
198 National Register of Higher Education Providers
4
(1) TEQSA must establish and maintain a register of:
5
(a) registered higher education providers; and
6
(b) each entity that was a registered higher education provider
7
and whose registration has been cancelled other than because
8
of a reason set out in the Register Guidelines.
9
(2) The register is to be known as the National Register of Higher
10
Education Providers.
11
(3) The Register Guidelines may set out details that TEQSA must
12
enter on the Register in respect of each registered higher education
13
provider.
14
(4) Subsection (3) does not prevent TEQSA from entering other details
15
on the Register in respect of a registered higher education provider.
16
(5) The Register is to be made available for inspection on the internet.
17
18
Part 12 Miscellaneous
Section 199
132 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
Part 12--Miscellaneous
1
2
199 Delegation--general
3
(1) TEQSA may, by writing, delegate any or all of TEQSA's functions
4
and powers to:
5
(a) a Commissioner; or
6
(b) a member of the staff of TEQSA who holds the classification
7
of APS Executive Level 1 or higher, or an equivalent
8
classification; or
9
(c) a Commonwealth authority; or
10
(d) a person who holds any office or appointment under a law of
11
the Commonwealth.
12
Note 1:
This subsection extends, for example, to TEQSA's functions and
13
powers under the Education Services for Overseas Students Act 2000.
14
Note 2:
TEQSA may also subdelegate powers delegated to TEQSA under
15
section 170 of the Education Services for Overseas Students Act 2000.
16
Powers not delegable under subsection (1)
17
(2) Subsection (1) does not apply to the power to make any of the
18
following decisions:
19
(a) a decision under section 21 to grant or reject an application
20
for registration;
21
(b) a decision under section 32 to impose, vary or revoke a
22
condition on a registration;
23
(c) a decision under section 36 on an application for renewal of
24
registration;
25
(d) a decision under section 38 to change the category in which
26
the provider is registered;
27
(e) a decision under section 41 on an application to self-accredit
28
one or more courses of study;
29
(f) a decision under section 49 to grant or reject an application
30
for a course of study to be accredited;
31
(g) a decision under section 53 to impose, vary or revoke a
32
condition on an accreditation;
33
Miscellaneous Part 12
Section 200
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 133
(h) a decision under section 56 on an application for renewal of
1
the accreditation of a course of study;
2
(i) a decision under subsection 63(2) (about requiring
3
information etc.) to give a notice to a person;
4
(j) a decision under Division 1 of Part 7 (about cancelling
5
registration and other administrative sanctions);
6
(k) a decision to refer a matter to the Director of Public
7
Prosecutions for action in relation to a possible offence
8
against this Act or this Act's associated provisions;
9
(l) a decision to apply for a civil penalty order;
10
(m) a decision to seek an undertaking under Division 3 of Part 7;
11
(n) a decision to apply for an injunction under Division 4 of
12
Part 7;
13
(o) a determination under subsection 158(1) (about determining
14
fees);
15
(p) a decision to review a reviewable decision in a case covered
16
by paragraph 185(3)(b).
17
200 Delegation--powers delegable only to Commissioners
18
TEQSA may, by writing, delegate to a Commissioner TEQSA's
19
powers to make the following decisions:
20
(a) a decision under section 49 on an application for a course of
21
study to be accredited;
22
(b) a decision under section 53 to impose, vary or revoke a
23
condition imposed on an accreditation;
24
(c) a decision under section 56 on an application for renewal of
25
an accreditation.
26
201 Delegates must comply with directions
27
In exercising functions or powers under a delegation under
28
section 199 or 200, the delegate must comply with any written
29
directions of TEQSA.
30
Part 12 Miscellaneous
Section 202
134 Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011
202 Protection from criminal or civil actions
1
(1) No action, suit or proceeding (whether criminal or civil) lies
2
against a protected person in relation to anything done, or omitted
3
to be done, in good faith by the person:
4
(a) in accordance, or purportedly in accordance, with this Act; or
5
(b) in the performance, or purported performance, of TEQSA's
6
functions; or
7
(c) in the exercise, or purported exercise, of TEQSA's powers.
8
Note:
This section extends to, for example, a thing done in good faith in
9
accordance with a delegation under section 199 or 200.
10
(2)
The
protected persons are as follows:
11
(a)
the
Minister;
12
(b)
a
Commissioner;
13
(c) a member of the staff of TEQSA;
14
(d) a Commonwealth authority;
15
(e) a person who holds any office or appointment under a law of
16
the Commonwealth;
17
(f) a person performing a service for TEQSA.
18
203 Review of impact of Act
19
The Minister must, before 1 January 2016, cause a review to be
20
started of the impact on the higher education sector of this Act.
21
204 Guidelines
22
TEQSA may, by legislative instrument, make Guidelines, specified
23
in the second column of the table, providing for matters:
24
(a) required or permitted by the corresponding provision
25
mentioned in the third column of the table to be provided; or
26
(b) necessary or convenient to be provided for carrying out or
27
giving effect to that provision.
28
29
Guidelines
Item Guidelines
Provision
1
Information Guidelines
section 189
Miscellaneous Part 12
Section 205
Tertiary Education Quality and Standards Agency Bill 2011 No. , 2011 135
Guidelines
Item Guidelines
Provision
2
Register Guidelines
section 198
205 Regulations
1
The Governor-General may make regulations prescribing matters:
2
(a) required or permitted by this Act to be prescribed; or
3
(b) necessary or convenient to be prescribed for carrying out or
4
giving effect to this Act.
5