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1
Higher Education (General Provisions) Bill 2003
HIGHER EDUCATION (GENERAL
PROVISIONS) BILL 2003
EXPLANATORY NOTES
Short Title of the Bill
The short title of the Bill is the Higher Education (General Provisions)
Bill 2003.
Policy Objectives of the Bill
The primary policy objectives of the Bill are to:
· uphold the standards of education delivered by higher education
institutions; and
· maintain public confidence in the higher education sector in the
State.
Reason that the proposed legislation is necessary
The National Protocols for Higher Education Approval Processes
(National Protocols) were approved by the Ministerial Council on
Education, Employment, Training and Youth Affairs (MCEETYA) on 21
March 2000. These National Protocols are a key element of a new national
quality assurance framework for Australian higher education. They have
been designed to ensure consistent criteria and standards for higher
education approval processes across Australia.
The Australian States and mainland Territories, which have
responsibility for managing higher education accreditation and approval
processes in their jurisdictions, have agreed to the adoption and
implementation of the National Protocols. Accordingly, to meet the
standards in the National Protocols, New South Wales has enacted new
legislation; Victoria, South Australia and the Australian Capital Territory
have made amendments to their legislation and guidelines; and Western
Australia is progressing legislation and guidelines.
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Higher Education (General Provisions) Bill 2003
In 2002, the Queensland Office of Higher Education, which assists the
Minister in administering the Act, reviewed the Act in this national context.
The review found that although the Act is mostly compliant with the
National Protocols, it required some amendment to be fully compliant.
The Bill gives effect to the recommendations of the review by providing
that the criteria in the National Protocols are to be considered in the
approval processes for higher education institutions.
Both the current legislation and the Bill deal only with higher education
institutions and do not provide for vocational education courses.
How the Policy Objectives will be Achieved
The higher education sector in Queensland is currently regulated by the
Higher Education (General Provisions) Act 1993 (the Act) and the Higher
Education (General Provisions) Regulation 1996 (the Regulation). The Bill
repeals the Act and provides an updated and more transparent approval
process for higher education institutions.
Establishment of, or Recognition as, a University
Part 2 of the Bill implements protocol 1 of the National Protocols. The
Minister is to have regard to the National Protocols when approving an
application to enable a higher education institution to be established or
recognised under an Act as a university.
The Bill also enables the Minister to review the university's operations
after the fifth anniversary of the establishment or recognition of the
university under an Act.
Overseas Higher Education Institutions
Currently, overseas higher education institutions (including overseas
universities) may be approved by the Minister to operate in Queensland.
However, the Minister must be satisfied that the institution has bona fide
accreditation in its country of origin. The Act does not provide for an
assessment of the comparability of the higher education to be delivered in
Queensland by the overseas institution to similar higher education courses
accredited in Australia. Further, there is no power for the Minister to
scrutinise the delivery arrangements, and there is no time limit on the
period of authorisation. Protocol 2 sets the criteria for the authorisation of
overseas institutions to operate in Australia. In particular, the National
Protocols require an assessment of the higher education courses for
comparability in requirements and learning outcomes with similar higher
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Higher Education (General Provisions) Bill 2003
education courses offered by Australian institutions, and an assessment of
the suitability of delivery arrangements.
The Bill provides for the assessment of applications for approval to
operate in Queensland according to the criteria outlined in the National
Protocols. For overseas higher education institutions to gain approval to
operate in Queensland under Part 3, the institution must submit an
operational plan to the Minister for approval. The applicant will be required
to provide a range of key details in the plan based on the relevant criteria
outlined in the National Protocols. The Bill also provides for a renewal
process whereby an overseas higher education institution must apply for
renewal after five years. This allows the Minister to have an ongoing role in
the operation of overseas higher education institutions operating in the
State.
Non-University Providers
The Bill implements protocol 3 of the National Protocols by enabling the
Minister to carry out assessment and approval functions for the
accreditation of higher education courses to be offered by non-university
providers.
The Minister may accredit a course offered by a non-university provider
for a period up to five years, after which time the provider must apply for
reaccreditation of the course.
The Bill provides, as a condition of on-going accreditation, that non-
university providers are required to submit an annual report to the Minister.
The aim of the report is to maintain up-to-date information for the purposes
of ensuring ongoing provider adherence to the relevant criteria and monitor
aspects of the provider's operations on behalf of the Minister. The
requirements to be addressed in the annual report will be based on the
criteria listed in the National Protocol and information included in the
guidelines made under the Bill.
There will also be a requirement for non-university providers to provide
particular data on courses that have been accredited by the Minister.
Interstate Universities
The Bill implements protocol 4 of the National Protocols by allowing the
Minister to investigate, if necessary, an interstate university that is
operating through an agent in Queensland.
Currently, the Act provides for the automatic recognition of the
operation of interstate universities in Queensland. Part 5 of the Bill
provides for the Minister to grant automatic approval to any interstate
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Higher Education (General Provisions) Bill 2003
universities that operate in Queensland through an agent only if the
university meets the strict application requirements. The application must
provide details of the interstate university's place of operation in the State
and details of the agent. The university must also provide an undertaking
that it will comply with the National Protocols by taking full responsibility
for the operation through an agent. A standard condition of the approval is
that the Minister is allowed to investigate the Queensland operations of an
interstate university by an agent if there is reasonable cause to believe the
operation is not complying with the National Protocols. The investigation
will only be conducted following consultation with the relevant interstate
Minister. The Minister may cancel the approval if the interstate university's
delivery of a course is not compliant with protocol 4.
Limiting use of the Title `University' and Conferral of Higher Education
Awards
The Bill continues to protect of the term `university' by prohibiting its
use except by institutions that are universities under the Act.
The Bill also prohibits the offering of courses leading to higher
education awards, and conferring of those awards, without the Minister's
approval.
Alternative Method of Achieving the Policy Objectives
There are no appropriate or reasonable alternative ways of achieving the
policy objectives. The MCEETYA commitment is to provide for
recognition of the National Protocols through legislation.
Estimated Cost for Government Implementation
Implementation of the proposed amendments will not result in any
additional costs to the Department of Education that cannot be met from
within the existing budget.
Consistency with Fundamental Legislative Principles
Aspects of the Bill that raise possible fundamental legislative principles
are outlined below.
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Higher Education (General Provisions) Bill 2003
Use of the National Protocols and Australian Qualifications Framework
(AQF)
The Parts of the Bill that provide for approvals of higher education
institutions (i.e. Parts 2 to 5) refer to the National Protocols as the key
document to which the Minister must refer when assessing applications.
The criteria contained in the National Protocols are used as the guiding
criteria for reaching decisions under the Act.
The Bill imposes an additional requirement on interstate universities,
that is, in order to be recognised, a university must be listed on the
Australian Qualifications Framework Register (see Schedule 2).
It is arguable that referring to the National Protocols and the Australian
Qualifications Framework does not have sufficient regard to the institution
of Parliament in that it allows for the delegation of legislative power and
does not subject the exercise of the delegated legislative power to the
scrutiny of the Legislative Assembly.
The management of the National Protocols and AQF are the
responsibility of MCEETYA. The Minister for Education is a member of
MCEETYA and is involved in the maintenance and operation of the
National Protocols and the AQF.
The National Protocols and the AQF are an integral part of a national
framework for higher education in Australia that ensures national
consistency.
As such, the provisions are justifiable given the status the national
framework and the fact that all states and territories recognise the National
Protocols and the AQF.
Making of Guidelines
Clause 84 of the Bill enables the Minister to make guidelines for the Act.
As the Minister, rather than the Legislative Assembly, has responsibility for
the making of these guidelines, it may be contended that this approach does
not have sufficient regard to the institution of Parliament.
The guidelines will include detailed information about administrative
requirements and how an applicant should deal with issues and supporting
material for each type of application under the Act. Therefore, the
guidelines will not be easily translated into a legislative format.
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Higher Education (General Provisions) Bill 2003
Reversal of the Onus of Proof
Clause 78 of the Bill effectively provides that an act or omission of a
person's representative (relating to a proceeding for an offence under the
Bill) is taken to have been done by the person, if the representative was
acting within the scope of the representative's authority. The person will
therefore be taken to have committed the relevant offence unless the person
can prove that the person could not, by the exercise of reasonable diligence,
have prevented the act or omission.
Clause 79 of the Bill provides that, if a corporation is convicted of an
offence against the legislation, each executive officer of the corporation is
taken to have committed the offence of failing to ensure that the
corporation complies with that provision. This clause therefore presumes
an executive officer of the corporation to be guilty until the officer can
prove that the officer took all reasonable steps to ensure the corporation
complied with the provision; or that the officer was not in a position to
influence the conduct of the corporation in relation to the offence.
These provisions effectively provide for the reversal of the onus of proof.
Given that the objects of the Bill are to uphold the standards of education
delivered by higher education institutions operating in Queensland and to
maintain public confidence in the higher education sector in the State, it is
appropriate that:
· persons be required to oversee the conduct of their
representatives and, in doing so, make reasonable efforts to
ensure that their employees and agents comply with the
requirements of the legislation;
· an executive officer, who is in a position to influence the conduct
of the corporation, be required to ensure that the corporation
complies with the legislation; and
· an executive officer who is responsible for a contravention of the
legislation, be accountable for his or her actions and not able to
`hide' behind the corporation.
As such, the provisions are warranted to ensure that there is effective
accountability at a corporate level.
Transitioning of Overseas Higher Education Institutions
Overseas higher education institutions are approved under Part 3 of the
Bill. Under the current Act holders of approvals to operate as foreign
institutions are effectively given an on-going approval on the basis that
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Higher Education (General Provisions) Bill 2003
their accreditation in their home jurisdiction remains valid. These
approvals will be revoked upon the commencement of the new Act, and
replaced with an automatic twelve-month approval to operate as an
overseas higher education institution under the new Act. Those overseas
providers wanting to continue operating past this twelve-month period will
be required to apply for renewal under the new Act.
The effect of the new legislative provisions will be to remove an existing
right held by the three overseas providers currently operating in
Queensland. These providers were approved prior to 2000 and
consequently have not undergone an assessment process according to the
National Protocols. There is a quality risk in permitting these providers to
continue operating outside the new nationally agreed framework. The new
approval process is therefore warranted to ensure the integrity of overseas
higher education institutions. The Bill provides for sufficient time for the
institutions to apply for renewal of an approval.
Transitioning of Interstate Non-University Providers
Higher education courses offered by non-university providers are
accredited under Part 4 of the Bill. Currently, interstate non-university
providers properly accredited in another state or territory are permitted to
operate in Queensland under the automatic recognition provided by the
definition of higher education in the Act. With the omission of the
definition from the new Act, this automatic recognition will no longer
apply, and interstate non-university providers will need to seek Ministerial
approval to operate in Queensland in the same way as local non-university
providers. By way of transition, interstate non-university providers will be
granted an automatic twelve-month approval to operate as a non-university
provider under the new Act. Those interstate providers wanting to continue
operating past this twelve-month period will then be required to apply for
accreditation under the new Act.
This change will remove the existing freedom to operate in Queensland
without approval. However, it will address the quality risk in the current
arrangement where interstate non-university providers are able to operate
in Queensland without any scrutiny of their operations. All other states and
territories have implemented, or are in the process of implementing, similar
systems. The new accreditation requirements contained in the Bill are
warranted to ensure integrity of the operation in Queensland of interstate
non-university providers. The Bill provides for sufficient time for the
providers to apply for accreditation.
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Higher Education (General Provisions) Bill 2003
Transitioning of Interstate Universities Operating through an Agent
Interstate universities are approved under Part 5 of the Bill. Currently,
interstate universities are permitted to operate in Queensland via an agency
arrangement without restriction. This system will end upon
commencement of the new Act. Current interstate universities operating in
Queensland through an agency arrangement will have three months after
the Act commences to apply to the Minister for approval of the
arrangement.
It is considered appropriate that the Minister approves interstate
universities operating through an agent to ensure that the delivery of a
higher education course complies with the National Protocols.
Consultation
In 2002, the Office of Higher Education held workshops for major
stakeholders to discuss the review of the Act. The stakeholders included all
non-university providers in Queensland and course-assessment panel
members (including representatives from Queensland Universities)
appointed under the Act.
In 2003, the following stakeholders were consulted on an exposure draft
of the Bill:
· Queensland University of Technology
· University of Queensland
· James Cook University
· Griffith University
· University of the Sunshine Coast
· Central Queensland University
· University of Southern Queensland
· Australian Catholic University
· Bond University
· Asian Pacific Institute
· Australian College of Theology
· Brisbane College of Theology
· Chartered Secretaries Australia
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Higher Education (General Provisions) Bill 2003
· Christian Heritage College
· ICI College
· Institute of Chartered Accountants in Australia
· International Management Centres Australia
· Nazarene Theological College
· Shafston International College
· Australian College of Natural Medicine
· Gestalt Therapy & Training Centre
· QANTM
· Queensland Baptist College of Ministries
· Queensland Institute of Business & Technology
· Royal Australian College of General Practitioners
· Russo Institute of Technology.
The following government departments and agencies were consulted in
relation to the Bill:
· Department of the Premier and Cabinet
· Queensland Treasury
· State Development
· Department of Employment and Training
· Department of Justice and Attorney-General
· Crown Law
· Department of Health
· Department of Primary Industries.
Interstate Ministers responsible for higher education in all mainland
states and territories were also consulted on an exposure draft of the Bill.
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Higher Education (General Provisions) Bill 2003
NOTES ON PROVISIONS
PART 1--PRELIMINARY
Division 1--Introduction
Clause 1 sets out the short title of the Bill.
Clause 2 provides for the commencement of the Act.
Clause 3 provides that the Act binds all persons including the State and
the Commonwealth and other States. However, nothing in the Act makes
the Commonwealth or a State liable to be prosecuted for an offence.
Division 2--Interpretation
Clause 4 provides that particular words used in the Act are defined in the
Dictionary in Schedule 2 (located at the end of the Bill).
Division 3--Objects
Clause 5 provides for the objects of the Bill. The objects set out in
subsection 5(1) are important for guiding the administration of the
legislation. These objects are:
· to uphold the standards of education delivered by higher
education institutions operating in Queensland; and
· to maintain public confidence in the higher education sector in
the State.
This clause also sets out the ways in which the objects of the Act are to
be achieved. The matters listed in subsection (2) are the principal
mechanisms that enable the objects of the Act to be achieved, namely:
· establishing a process for the establishment or recognition of a
university in the State;
· providing for the approval of the operation of overseas higher
education institutions in Queensland;
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Higher Education (General Provisions) Bill 2003
· providing for the accreditation of higher education courses
proposed to be offered by non-university providers;
· providing for the approval of the operation of interstate
universities under an agency arrangement in Queensland; and
· limiting the use of a title that consists of, or includes, the word
`university'.
PART 2--ESTABLISHMENT OF, AND OR
RECOGNITION AS, A UNIVERSITY
Division 1--Application for Minister's approval
Clause 6 provides for the procedural requirements for the Minister to
approve an application for a higher education institution to be established
or recognised under an Act. Once the Minister has approved an application,
an institution can be either established under its own enabling Act, or
recognised via an Act, as a university.
Subsection 6(2) identifies that the application is to be made in writing to
the Minister and is to be accompanied by a fee to be prescribed under a
regulation.
Clause 7 requires the Minister to establish a committee to consider an
application made under section 6. The committee must consist of three or
more persons who are appointed by the Minister. When considering the
appointment of a committee member the Minister must be satisfied that the
person has a substantial knowledge and experience of either academic
affairs, university management, the design development and delivery of
higher education courses or business management. The purpose is to
ensure that persons with relevant experience and knowledge consider
applications.
Division 2--Public notification of application
Clause 8 requires the committee to publish a notice about the application
as soon as practicable. This notice must be published on the same day, in a
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Higher Education (General Provisions) Bill 2003
newspaper circulating throughout Queensland and any regional newspaper
circulating generally in the region in which the institution is located or
proposed to be located. The notice must include certain information
including the name of the applicant; the institution's location or proposed
location; where the description statement for the application may be
inspected; the description statement is posted on the department's website;
the statement that anyone is able to make a submission to the committee
about the application; and how to properly make a submission. The notice
should also state the period during which submissions may be made. This
period must be at least 14 days after the publication of the notice.
Clause 9 requires the committee to prepare a description statement as
soon as practicable after the application is referred. The statement must be
available for inspection free of charge at the department's head office
during ordinary office hours. The statement must also be made available on
the department's web site. The statement is intended to provide information
to the community for the purpose of making a submission to the committee
regarding the application.
Clause 10 provides that a person has the right to make a submission to
the committee about the submission.
Clause 11 requires the committee to accept a submission if it is a
"properly made submission". Subsection (1) sets out the criteria that a
submission must meet in order to be a "properly made submission".
However, the committee may accept a submission even if it is not a
properly made submission.
Division 3--Recommendation by committee
Clause 12 provides that the committee must consider the extent to which
the proposal meets the relevant criteria in the National Protocols. These
criteria include:
· authorisation by law to award higher education qualifications
across a range of fields and to set standards for those
qualifications which are equivalent to Australian and
international standards;
· teaching and learning that engage with advanced knowledge and
inquiry;
· a culture of sustained scholarship extending from that which
informs inquiry and basic teaching and learning, to the creation
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Higher Education (General Provisions) Bill 2003
of new knowledge through research, and original creative
endeavour;
· commitment of teachers, researchers, course designers and
assessors to free inquiry and the systematic advancement of
knowledge;
· governance, procedural rules, organisation, admission policies,
financial arrangements and quality assurance processes, which
are underpinned by the values and goals outlined above, and
which are sufficient to ensure the integrity of the institution's
academic programs; and
· sufficient financial and other resources to enable the institution's
program to be delivered and sustained into the future.
Clause 13 enables the committee to request further information or
documents at any time from the point when the application is initially
received until the committee makes its recommendation. The committee
must give the applicant a minimum of 14 days to comply with the
committee's request. If the applicant fails to comply with the requirements
within the time required by the notice the applicant is taken to have
withdrawn the application.
Clause 14 states that after the committee has considered the application
the committee must provide a report to the Minister and to the applicant.
The report advises the Minister of the committee's recommendation as to
whether the university should be established or recognised, and any
conditions that the committee deems necessary. The recommendation
provided by the committee must include the reasons for the
recommendation. By providing the applicant with the report including
reasons, the applicant is informed of the recommendations that may affect
the application. The applicant may make representations to the Minister
under clause 15 about any conditions recommended in the report.
Clause 15 applies if the committee has recommended to the Minister to
grant the application subject to conditions. The applicant may make written
representations to the Minister within 14 days of receipt of the committee's
report.
Division 4--Decision of Minister
Clause 16 requires the Minister to either grant or refuse the application.
The Minister must consider the committee's report but is not bound by any
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Higher Education (General Provisions) Bill 2003
of the recommendations in the report. The Minister must be satisfied that
the institution will comply with the relevant criteria mentioned in the
National Protocols.
If the Minister decides to grant the application the Minister must as soon
as practicable provide the applicant with a notice of the decision. If the
Minister decides to refuse the application, the Minister must as soon as
practicable provide an information notice. The information notice for a
decision made by the Minister, is a notice that must state the decision made
by the Minister; the reasons for the decision; note that the person may
appeal the decision within 28 days; and note the way the person may
appeal against the decision.
If the Minister does not make a decision on the application within 12
months after its receipt, the Minister is taken to have decided to refuse the
application. However, subsection (8) provides that if the Minister and the
applicant agree under clause 17 to an agreed extended day by which the
decision is to be made, clause 16(7) is subject to clause 17.
The Minister's decision is only to approve the establishment or
recognition of a proposed university under an Act. Legislation must be
subsequently enacted to establish or recognise a university.
Clause 17 enables the Minister to extend timeframes in which to make a
decision because of the complexity of the issues that need to be considered
in reaching a decision. Extension of timeframes can only occur if, prior to
the day that is 12 months after the application was received by the Minister
(`final consideration day'), the Minister and the applicant agree in writing
on a new date (the `agreed extended day') by which the application is to be
decided. If by this `agreed extended day' the Minister has not decided an
application, the Minister is taken to have refused the application.
Clause 18 enables the Minister to impose conditions when granting an
application. These conditions must be relevant and reasonable. For
example, a condition may be imposed on a new university where the
assessment of the proposal is based on a plan (rather than an existing
institution) requiring a period of sponsorship or mentoring by an
established higher education institution. Other conditions may relate to:
· the conduct of teaching and learning;
· the conduct of research;
· governance arrangements, procedural rules, organisation,
admission policies and quality assurance systems; and
· financial and other resources.
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Higher Education (General Provisions) Bill 2003
The Minister must give the applicant as soon as practicable an
information notice about the decision to impose conditions. This is to
provide the applicant with an opportunity to appeal the decision of the
Minister to impose conditions.
Division 5--Review of university's operation
Clause 19 requires that the Minister must review a newly established or
recognised university after its fifth anniversary. The review will identify
whether the university is complying with the relevant criteria in the
National Protocols. This process is to ensure that newly established
universities continue to maintain high-level standards of higher education.
PART 3--OVERSEAS HIGHER EDUCATION
INSTITUTIONS
Division 1--Interpretation
Clause 20 provides definitions for the purpose of Part 3.
The term `operate' is defined to include the operation of an overseas
higher education institution in Queensland by means of an electronic
communication (e.g. the internet).
Clause 21 defines an operational plan for an overseas higher education
institution as a document that details the operation of the institution in
Queensland by reference to the relevant criteria in the National Protocols.
The plan must address the following nine `key details':
(a) the accreditation of the course;
(b) the institution's governing body (i.e. the applicant);
(c) the premises where the institution is to operate in Queensland;
(d) the facilities and resources for the operation, at the premises to
enable the institution to deliver the courses described in the
operational plan;
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Higher Education (General Provisions) Bill 2003
(e) if the course is be delivered through an agent of the institution,
the name and address of the agent
(f) the mode of delivery of education to be used in the operation
(e.g. internal education or distance education);
(g) the learning outcomes of the course to be offered by the
institution operation;
(h) the requirements of the course to achieve the learning outcomes.
This information may comprise of a document that outlines the
course structure and desired learning outcomes; and
(i) the level and name of the award that may be attained on
successful completion of the course.
Division 2--Preliminary
Clause 22 makes it an offence for a person to operate as an overseas
higher education institution in Queensland unless the person has gained the
Minister's approval under this part of the Act.
Clause 23 provides that if an overseas higher education institution has an
approval under this Part, the operational plan for the institution must be
made available for inspection free of change at the institution's premises in
Queensland during ordinary office hours (i.e. 9.00 am-5.00 pm).
Division 3--Applications for Approval
Clause 24 mandates the procedural requirements for an approval of an
overseas higher education institution to operate in Queensland. The
application must be made to the Minister in writing and include the
proposed operational plan for the institution. The application is also to be
accompanied by the prescribed fee.
Clause 25 requires the Minister to make a decision to grant, or refuse to
grant, the application. When making the decision the Minister must be
satisfied that the institution has complied with the relevant criteria
mentioned in the National Protocols. For example, the Minister may
consider the operational plan to determine whether the criteria have been
addressed.
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Higher Education (General Provisions) Bill 2003
The relevant criteria mentioned in the National Protocols include:
· that it is a bona fide institution, legally established in its country
of origin;
· that the courses offered have been properly accredited in the
provider's country of origin by an authority that, in the opinion of
the Minister, is the appropriate authority;
· where the standing of the institution's accreditation status is not
acceptable to the Minister, the Minister may require that the
proposed courses to be subject to a full accreditation process;
· the course or courses are to be comparable with the requirements
and learning outcomes of courses at the same level in a similar
field in Australia;
· that the delivery arrangements, including the arrangements for
academic oversight and quality assurance proposed by the
overseas institutions, are comparable to those offered by
accredited Australian providers; and
· that the appropriate financial and other arrangements exist to
permit the successful delivery of the course in the Australian
jurisdictions (i.e. Queensland).
Subsection (3) enables the Minister to examine the proposed operation
in Queensland when assessing the application.
Subsection (4) provides that if the Minister decides to grant the
application, the Minister must as soon as practicable provide the applicant
with notice of the decision. This notice is to include the term of approval
(clause 27) and that the Minister has approved the operational plan (clause
28).
Subsection (5) provides that if the Minister decides to refuse the
application, the Minister must as soon as practicable provide an
information notice.
Subsection (6) provides that if the Minister does not make a decision on
the application within 12 months after its receipt, the Minister is taken to
have decided to refuse the application. The Minister must as soon as
practicable provide an information notice under clause 87.
Subsection (7) provides that if the Minister and the applicant agree under
clause 26 to an agreed extended day by which the decision is to be made,
clause 25(6) is subject to clause 26.
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Higher Education (General Provisions) Bill 2003
Clause 26 enables the Minister to extend the decision-making period for
an application under clause 25. The extension is designed to allow for
evaluation of applications that are of a complex nature. Extension of
timeframes can only occur if, prior to the day that is 12 months after the
final application was received by the Minister (`final consideration day'),
the Minister and the applicant agree in writing on a new date (the `agreed
extended day') by which the application is to be decided. If by this agreed
extended day the Minister has not decided an application, the Minister is
taken to have refused the application.
Clause 27 provides that the term of approval for institutions to operate in
Queensland must not be more than 5 years. Clause 30 enables a holder of
an approval to renew the approval before the term the approval ends.
Clause 28 requires that if the Minister has given approval for the
institution to operate in Queensland, the Minister must endorse the plan
with the Minister's written approval and provide this endorsed plan to the
applicant.
Clause 29 enables the Minister to impose conditions when granting an
application. These conditions must be relevant and reasonable. Conditions
may apply to:
· the institution's governing body;
· the premises where the institution is to operate in Queensland;
· the facilities and resources, for the operation, at the premises;
· the agent and arrangement, if the operation is to be under an
agency arrangement;
· the mode of delivery of education to be used in the operation;
· the learning outcomes of the course to be offered by the
institution; and
· the requirements of the course to achieve the learning outcomes.
If the Minister decides to impose conditions, the Minister must as soon
as practicable provide the applicant with an information notice about the
decision to impose conditions.
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Higher Education (General Provisions) Bill 2003
Division 4--Renewal of Approvals
Clause 30 provides for the holder of an approval to apply for renewal
within the period starting 12 months and ending 9 months before the term of
the approval ends. This application must be in writing and be accompanied
by the fee prescribed under a regulation and the proposed operational plan
for the institution that is subject to the approval. The operational plan
submitted with the application for renewal is either the holder's current
operational plan or a new operational plan.
Subsection (3) provides that the Minister must consider the application
and decide to renew the approval or refuse to renew the approval. Under
subsection (4), the Minister may examine the operation of the institution in
Queensland when deciding the application.
Subsection (5) provides that the Minister may decide to renew the
approval only if the Minister is satisfied the institution is complying with
the relevant criteria mentioned in the National Protocols. Subsection (6)
provides that if the Minister decides to renew the approval, the Minister
must give notice of the decision to the applicant.
Subsection (7) provides that if the Minister decides to refuse the
application, the Minister must as soon as practicable provide an
information notice.
Subsection (8) provides that if the Minister does not make a decision on
the application within 1 year after its receipt, the Minister is taken to have
decided to refuse the application. The Minister must as soon as practicable
provide an information notice under clause 87.
Subsection (9) provides that if the Minister and the applicant agree under
clause 31 to an agreed extended day by which the decision is to be made,
clause 30(8) is subject to clause 31.
Clause 31 enables the Minister to extend the decision-making period for
an application under clause 30. The extension is designed to allow for
evaluation of applications that are of a complex nature. Extension of
timeframes can only occur if, prior to the day that is 1 year after the final
application was received by the Minister (`final consideration day'), the
Minister and the applicant agree in writing on a new date (the `agreed
extended day') that the application is to be decided. If by this agreed
extended day the Minister has not decided an application, the Minister is
taken to have refused the application.
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Clause 32 provides that the term of renewed approval for institutions to
operate in Queensland must not be more than 5 years.
Clause 33 requires that if the Minister has given approval for the
institution to operate in Queensland, the Minister must endorse the plan
with the Minister's written approval and provide this endorsed plan to the
applicant.
Clause 34 enables the Minister to impose conditions when granting an
application. These conditions must be relevant and reasonable. Conditions
may apply to:
· the institution's governing body;
· the premises where the institution is to operate in Queensland;
· the facilities and resources, for the operation, at the premises;
· the agent and arrangement, if the operation is to be under an
agency arrangement;
· the mode of delivery of education to be used in the operation;
· the learning outcomes of the course to be offered by the
institution; and
· the requirements of the course to achieve the learning outcomes.
If the Minister decides to impose conditions, the Minister must as soon
as practicable provide the applicant with an information notice about the
decision to impose conditions.
Clause 35 provides that if an applicant makes an application to renew
their approval within the specified period, their approval is considered to
continue until the Minister has made a decision for renewal. However, if
the applicant's renewal is refused, the current approval only continues until
the last day to appeal against the decision or an appeal from the decision
has been decided.
Subsection (2) provides that an approval cannot be continued if the
approval has been cancelled.
Division 5--Cancellation of Approvals
Clause 36 sets out the grounds for cancellation of an overseas higher
education institution's approval under Part 3. The approval can be
cancelled on the following grounds:
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· the institution is not complying, or has not complied with, the
relevant criteria mentioned in the national protocols;
· there has been a change to the key details in the operational plan
without the Minister's approval under clause 42; or
· the holder has contravened a condition of the approval imposed
under clause 29 or clause 34.
Clause 37 requires the Minister to give the overseas higher education
institution a show cause notice where the Minister reasonably believes a
ground under clause 36 exists to cancel an approval under this part. The
show cause notice must set out:
· the action the Minister proposes to take;
· the grounds for the proposed action;
· an outline of the facts and circumstances forming the basis for
the grounds;
· an invitation to the holder to show why the action proposed by
the Minister should not be taken.
To allow the holder of the approval sufficient time to respond, the show
cause period must be at least 30 days after the show cause notice is given to
the holder.
Clause 38 provides that a holder of an approval may make
representations in writing to a show cause notice issued under clause 37.
These submissions must be made within the show cause period.
Subsection (2) provides that the Minister must consider all written
submissions. This requirement ensures that the Minister gives
consideration to any documented submission by the approval holder.
Clause 39 sets out the circumstance in which the Minister must end the
show cause process without further action. The circumstance occurs when
the Minister has considered the written representations by the approval
holder and the Minister no longer believes the ground exists to cancel the
accreditation. In this situation, the Minister is further required to give
notice that no further action will be taken against the holder in respect of
the show cause notice.
Clause 40 provides that the Minister may decide to cancel approval
where:
· the Minister has considered the written submissions made by the
holder in response to a show cause notice, and still believes that
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grounds exist to cancel the accreditation and that cancellation is
still warranted; or
· the holder has not made any written submissions in response to
the show cause notice issued by the Minister.
Subsection (4) provides that where the Minister decides to cancel an
approval, the Minister is required to give the approval holder an
information notice to that effect as soon as is practicable.
Subsection (5) provides that a decision to cancel an approval takes effect
on:
· the last day to appeal against the decision under Part 6; or
· the day an appeal is decided under Part 6.
Division 6--Change to Key Details
Clause 41 enables an overseas higher education institution that has an
approval to operate in Queensland to apply to the Minister if there is a
change to the key detail mentioned in the operational plan. This application
must be in writing and be accompanied by the prescribed fee.
Subsection (2) provides that if there is a change to key details of the type
mentioned in clause 21(2)(d) or clause 21(2)(h), an application to the
Minister is only required in the following circumstances:
· the changes will have the effect of changing the learning
outcomes for the course offered by the institution under the
approval; or
· the changes will adversely affect the institution's ability to
deliver the learning outcomes outlined in the endorsed
operational plan.
Clause 42 requires the Minister to make a decision to grant, or refuse to
grant, the application.
Subsection (2) provides that the Minister must be satisfied that the
applicant will comply with the relevant criteria mentioned in the National
Protocols.
Subsection (3) provides that if the Minister decides to grant the
application, the Minister must as soon as practicable provide the applicant
with a notice of the decision (a `change notice'). The change notice must
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include the decision and note the day before which the change must be
effected (the `change day').
Subsection (4) provides that if the Minister decides to refuse the
application, the Minister must as soon as practicable provide an
information notice to the applicant.
Subsection (5) provides that if the Minister does not make a decision on
the application within 6 months after its receipt, the Minister is taken to
have decided to refuse the application. The Minister must as soon as
practicable provide an information notice to the applicant under clause 87.
Clause 43 provides that the holder of an approval under clause 42 must
return the operational plan to the Minister within 14 days after receiving
the notice. On receipt on this plan, the Minister must endorse the plan with
a written approval and forward the endorsed plan to the approval holder.
Division 7--Other Provisions
Clause 44 makes it an offence for overseas higher education institution
to confer, or hold out that they are authorised to confer, a higher education
award unless the institution has the Minister's approval to offer the course
leading to the award.
Subsection (2) makes it an offence for a person to hold out that an
overseas higher education institution is authorised to confer a higher
education award unless the institution is approved by the Minister to offer
the course leading to the award.
PART 4--NON- UNIVERSITY PROVIDERS
Division 1--Preliminary
Clause 45 makes it an offence for a non-university provider to offer a
higher education course unless the Minister accredits the course.
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Division 2--Applications for accreditation
Clause 46 provides for the procedural requirements of an application by
a non-university provider for accreditation of a course leading to a higher
education award. A non-university provider is defined as a person, other
than a university or overseas higher education institution, that provides, or
proposes to provide, a higher education course.
Subsection (2) provides that the application must be in writing and
provided to the Minister and accompanied by a fee to be prescribed under a
regulation.
Clause 47 requires the Minister to make a decision to grant, or refuse to
grant, the application. When making the decision the Minister must be
satisfied that the institution has complied with the relevant criteria
mentioned in the National Protocols.
The relevant criteria mentioned in the National Protocols include:
· a course design and content that satisfies the requirements set out
in the AQF for the award level;
· a course that is comparable in requirements and learning
outcomes to a course at the same level in a similar field at
Australian universities;
· delivery arrangements, including matters of institutional
governance, facilities, staffing, and student services that are
appropriate to higher education and enable successful delivery of
the course at the level proposed; and
· a provider with appropriate financial and other arrangements to
permit the successful delivery of the course, and is a fit and
proper person to accept responsibility for the course.
Subsection (3) enables the Minister to examine the proposed operation
in Queensland when assessing the application.
Subsection (4) provides that if the Minister decides to grant the
application, the Minister must as soon as practicable provide the applicant
with a notice of the decision. This notice is to include the term of
accreditation (clause 49).
Subsection (5) provides that if the Minister decides to refuse the
application, the Minister must as soon as practicable provide an
information notice.
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Subsection (6) provides that if the Minister does not make a decision on
the application within 1 year after its receipt, the Minister is taken to have
decided to refuse the application. The Minister must as soon as practicable
provide an information notice under clause 87.
However, subsection (7) provides that if the Minister and the applicant
agree under clause 48 to an agreed extended day by which the decision is to
be made, clause 47(6) is subject to clause 48.
Clause 48 enables the Minister to extend the decision-making period for
an application under clause 47. The extension is designed to allow for
evaluation of applications that are of a complex nature. Extension of
timeframes can only occur if, prior to the day that is 1 year after the final
application was received by the Minister (`final consideration day'), the
Minister and the applicant agree in writing on a new date (the `agreed
extended day') by which the application is to be decided. If by this agreed
extended day the Minister has not decided an application, the Minister is
taken to have refused the application, and the Minister is to provide an
information notice to the applicant under clause 87.
Clause 49 provides that the notice given to the applicant under section
47(4) states the term of approval for an accreditation. The term of approval
remains in force for not more than 5 years. The non-university provider
will have to reapply in accordance with clause 46 for accreditation of the
course at the end of the term of approval.
Clause 50 imposes conditions on a non-university provider once a
course has been accredited under clause 47. These conditions are that the
governing body of the non-university provider:
· allows the Minister to enter, at any reasonable time, a place to
examine the non-university provider's operation for the course at
the place; and
· complies with all reasonable requests by the Minister to give the
Minister information or records (or a copy of the records) that the
governing body is keeping, or has control of, that are appropriate.
The purpose is to allow the Minister to consider whether the course, and
the way of delivering it, is appropriate to the award. The Minister is to have
regard to relevant criteria in the National Protocols.
Clause 51 enables the Minister to impose conditions on the accreditation
that are relevant and reasonable. Conditions may apply to:
· the institution's governance structure;
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· the premises where the institution is to operate in Queensland;
· the delivery arrangements for the course, including facilities,
staffing, and student services;
· the financial arrangements for delivery of the course;
· the design and content of the course to be offered by the
institution;
· the mode of delivery of education to be used in the operation;
· the learning outcomes of the course to be offered by the
institution;
· the requirements of the course to achieve the learning outcomes.
If the Minister decides to impose conditions, the Minister must provide
an information notice to the applicant.
Division 3--Cancellation of accreditations
Clause 52 enables the Minister to cancel the accreditation of a course
leading to a higher education award offered by the non-university provider
in any of the following circumstances:
· where the course and the way of delivering it are no longer
appropriate to the type of award, having regard to the relevant
criteria mentioned in the national protocols; or
· the holder has contravened a condition of the accreditation (i.e.
conditions under either clause 50, 51 or 57); or
· the holder does not provide an annual report for the course under
clause 60.
Clause 53 requires the Minister to give the holder of accreditation (i.e. a
non-university provider) a show cause notice where the Minister
reasonably believes a ground exists under clause 52 to cancel the
accreditation. The show cause notice must set out:
· the action the Minister proposes to take;
· the grounds for the proposed action;
· an outline of the facts and circumstances forming the basis for
the grounds;
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· an invitation to the non-university provider to show why the
action proposed by the Minister should not be taken.
To allow the holder of the approval sufficient time to respond, the show
cause period must be at least 30 days after the show cause notice is given to
the non-university provider.
Clause 54 provides that a holder of an approval may make
representations in writing to a show cause notice issued under clause 53.
These submissions must be made within the show cause period.
Subsection (2) provides that the Minister must consider all written
submissions. This requirement ensures that the Minister gives
consideration to any documented submission by the holder.
Clause 55 sets out the circumstance in which the Minister must end the
show cause process without further action. This occurs if the Minister has
considered the written representations by the non-university provider, and
the Minister no longer believes that the ground exists to cancel the
accreditation. In this situation, the Minister is required to give notice that
no further action will be taken against the holder in respect of the show
cause notice.
Clause 56 provides that the Minister may decide to cancel the
accreditation where:
· the Minister has considered the written submissions made by the
non-university provider in response to a show cause notice, and
still believes that grounds exist to cancel the accreditation and
that cancellation is still warranted; or
· the non-university provider has not made any written
submissions in response to the show cause notice issued by the
Minister.
Subsection (4) provides that where the Minister decides to cancel an
accreditation, the Minister is required to give the non-university provider
an information notice to that effect as soon as is practicable.
Subsection (5) provides that a decision to cancel an accreditation takes
effect on:
· the last day to appeal against the decision under Part 6; or
· the day an appeal is decided under Part 6.
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Division 4--Changing conditions of accreditations
Clause 57 enables the Minister to change the conditions of an
accreditation imposed by the Minister when the course was initially
accredited, if there is reasonable basis to make the change. The Minister is
also able to add conditions to an accreditation. Before the Minister decides
to change the condition, the Minister must give a notice to the non-
university provider who holds the accreditation. This notice includes:
· the particulars of the proposed change; and
· that the non-university provider may make written submissions
to the Minister about the proposed change within a reasonable
period of at least 21 days. The period of time is to be stated in the
notice.
Subsection (2)(b) provides that the Minister must have regard to the
written submissions made to the Minister by the non-university provider
before the day stated in the notice.
Subsection (3) provides that if the Minister decided to change the
conditions, the Minister must provide the non-university provider with an
information notice about the decision.
Subsection (4) provides that the decision does not take effect until the
last day to appeal against the decision, or an appeal from the decision has
been decided.
Subsection (5) provides that the Minister may add conditions to an
accreditation that is not subject to conditions.
Division 5--Other provisions
Clause 58 makes it an offence for a non-university provider to confer, or
hold out that it is authorised to confer, a higher education award unless the
course leading to the award is an accredited course for the provider.
Subsection (2) makes it an offence for a person to hold out that a non-
university provider is authorised to confer a higher education award unless
the course leading to the award is an accredited course for the provider.
Clause 59 requires a non-university provider to provide the Minister
course survey data within 3 months after the day prescribed in regulation
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(the "relevant day'). The information is to be provided in the approved
form.
Clause 60 requires a non-university provider offering an accredited
course to provide to the Minister a written report (an `annual report'). The
annual report is to be given to the Minister on or before 31 May in each
year for the period from 1 January to 31 December of the previous year.
The report must contain information about the course and the way of
delivering it that will enable the Minister to determine, having regard to the
relevant criteria in the National Protocols, whether continued accreditation
of the course is justified. The type of information may include:
· the legal status of the provider;
· the financial status of the provider;
· the governance structure and arrangements for oversight of the
educational process;
· the premises where the provider operates;
· the facilities and resources for the operation at the premises;
· the level and name of the award that may be attained on
successful completion of the course;
· the mode of delivery of education to be used;
· the learning outcomes of the course or courses;
· the requirements of the course or courses to produce those
learning outcomes;
· staffing resources to deliver the course or courses.
PART 5--INTERSTATE UNIVERSITIES
Division 1--Preliminary
Clause 61 provides for an offence for a person to operate an interstate
university, under an agency arrangement, in Queensland unless the person
has the Minister's approval under section 63.
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Division 2--Applications for approval
Clause 62 provides that the governing body of an interstate university
may apply for the Minister's approval to enable the university to operate,
under an agency arrangement, in Queensland. An agency arrangement is
defined in Schedule 2 as an arrangement between an interstate university
and an educational institution established in Queensland under which the
institution delivers a higher education course in Queensland on behalf of
the university. For example, a New South Wales university may apply for
the Minister's approval to enable the university to operate through a non-
university provider in Queensland.
The application must be made to the Minister in writing and be
accompanied by:
· the name and address of the agent under the arrangement;
· the place of delivery under the arrangement. The delivery place is
defined in Schedule 2 to mean the place at which the higher
education course is delivered; and
· a written undertaking by the governing body that it will ensure
the delivery of a higher education course, under the arrangement,
complies with the relevant criteria mentioned in the National
Protocols.
The relevant criteria mentioned in the National Protocols include:
· quality and standards comparable to those on other campuses of
the institution;
· teaching by staff qualified at a level comparable to those on other
campuses of the institution;
· resources and facilities adequate for the delivery of the course;
and
· adequate measures to protect the welfare of students.
Clause 63 requires the Minister to automatically grant an application if
the application has strictly complied with requirements set out in clause
62(2). The Minister must as soon as practicable grant the application and
give a notice to the applicant that the application has been granted.
Clause 64 provides for standard conditions that apply once an approval
under section 63 has been granted. The conditions require that the agency
under the agency arrangement:
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· allows the Minister to enter at any reasonable time, the delivery
place under the arrangement; and
· complies with all reasonable requests by the Minister to give the
Minister information or records (or a copy of the records) the
agent is keeping, or has control of.
The purpose is to allow the Minister to consider whether the delivery of
the higher education course, and the way of delivering it, under the
arrangements complies with the relevant criteria in the National Protocols.
Division 3--Cancellation of approvals
Clause 65 sets out the grounds for cancellation of an approval for an
interstate university to operate, under an agency arrangement, in
Queensland. The approval may be cancelled on the following grounds:
· the relevant criteria mentioned in the National Protocols about
the delivery of a higher education course is not being complied
with under an agency arrangement; or
· the holder has contravened a condition of the approval.
Clause 66 requires the Minister to give the holder of an approval under
clause 63 a show cause notice where the Minister reasonably believes a
ground under clause 66 exists to cancel an accreditation. The show cause
notice must set out:
· the action the Minister proposes to take;
· the grounds for the proposed action;
· an outline of the facts and circumstances forming the basis for
the grounds;
· an invitation to the holder of the approval to show why the action
proposed by the Minister should not be taken.
To allow the holder of the approval sufficient time to respond, the show
cause period must at least 30 days after the show cause notice is given to
the holder.
Clause 67 provides that a holder of an approval may make
representations in writing to a show cause notice issued under clause 66.
These submissions must be made within the show cause period.
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Subsection (2) provides that the Minister must consider all written
submissions. This requirement ensures that the Minister gives
consideration to any documented submission by the approval holder.
Clause 68 sets out the circumstances in which the Minister must end the
show cause process without further action. The circumstance occurs when
the Minister has considered the written representations by the approval
holder, and the Minister no longer believes the ground exists to cancel the
accreditation. In this situation, the Minister is required to give notice that
no further action will be taken against the holder in respect of the show
cause notice.
Clause 69 provides that the Minister may decide to cancel approval
where:
· the Minister has considered the written submissions made by the
holder in response to a show cause notice, and still believes that
grounds exist to cancel the approval and that cancellation is still
warranted; or
· the holder has not made any written submissions at all in
response to the show cause notice issued by the Minister.
Subsection (4) provides that where the Minister decides to cancel an
approval, the Minister is required to give the approval holder an
information notice to that effect as soon as is practicable. The Minister is
also to give the agent a copy of the information notice.
Subsection (5) provides that a decision to cancel an approval effect on:
· the last day to appeal against the decision under Part 6; or
· the day an appeal is decided under Part 6.
Division 4--Impositions of conditions on approvals
Clause 70 enables the Minister to impose conditions on an approval
under clause 63 if there is a reasonable basis for the imposition. As an
approval is automatic under clause 63 if the requirements under clause
62(2) are met, the holder is given an opportunity to make written
submissions to the Minister about conditions that are subsequently
imposed by the Minister.
Under subsection (2) the Minister is required to give a notice to the
approval holder about the decision to impose conditions and informing the
holder of the opportunity to make written submissions. The Minister must
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have regard to the submissions if the submission is made before the day
stated in the notice.
Subsection (3) requires the Minister to provide the holder with an
information notice about a decision to impose conditions. This provides the
approval holder with another opportunity to have the decision to impose
conditions reviewed.
Subsection (4) provides that the decision to impose conditions does not
take effect until:
· the last day to appeal against the decision; or
· if an appeal has been lodged, the day the appeal is decided.
Division 5--Other provisions
Clause 71 makes it an offence for an interstate university operating in
Queensland, under an agency arrangement, to confer or hold out that the
university is authorised to confer, a higher education award unless the
university is approved, under clause 63, to offer the course leading to the
award.
Subsection 71(2) makes it an offence for a person to hold out that an
interstate university operating in Queensland under an agency arrangement
to confer or hold out that the university is authorised to confer, a higher
education award unless the university is approved, under clause 63, to offer
the course leading to the award.
PART 6--APPEALS
Clause 72 specifies that persons who are given, or entitled to be given,
an information notice for an original decision may appeal against the
decision under Part 6 of the Act. An appeal is made to the District Court.
Part 6 is to be read in conjunction with the provisions of the Uniform Civil
Procedure Rules 1999, which deal with appeals to the District Court.
Clause 73 specifies where an appeal may be started and the timeframes
for filing the notice of appeal. The court has the power to extend the
timeframes for filing the notice of appeal.
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Clause 74 specifies the powers that the District Court has in deciding an
appeal and provides that an appeal is by way of rehearing.
Clause 75 sets out the powers the court has when deciding the appeal.
The court may confirm the original decision; amend the original decision;
substitute another decision for the original decision; or set aside the
original decision and return the issue to the Minister with directions.
Subsection (2) specifically provides that if a court decides to substitute
another decision for the original decision, the court has the same powers as
the person who made the original decision. For example, the court has the
same powers as the Minister to approve an application under section 25
when hearing an appeal from a decision of the Minister to refuse to approve
an overseas higher education institution's application to operate in
Queensland.
PART 7--EVIDENCE AND LEGAL PROCEEDINGS
Division 1--Evidence
Clause 76 specifies those matters which do not have to be proved in a
proceeding under the Act, or which are considered to be evidence of those
matters.
Division 2--Proceedings
Clause 77 provides for offences under the Act to be dealt with as
summary offences and specifies the period within which proceedings for an
offence can be commenced.
Clause 78 specifies that an action or omission of a person's
representative, in relation to an offence against the Act, is taken to have
been done by the person, if the representative was acting within the scope
of the representative's authority. However, the person can utilise the
defence provided for under this provision and prove that they could not, by
the exercise of reasonable diligence, have prevented the act or omission.
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Clause 79 places an obligation on the executive officers of a corporation
to ensure that the corporation complies with the legislation. As such, this
provision creates an offence on the part of each executive officer in
situations where the corporation has committed an offence against this Act.
However, it is a defence for an executive officer to prove that he or she
exercised reasonable diligence to ensure the corporation complied with the
provision; or that they were not in a position to influence the conduct of the
corporation in relation to the offence.
PART 8--REGISTER
Clause 80 requires that the Minister maintain a register that captures
details of approvals of overseas higher education institutions; accredited
courses provided by non-university providers; and approvals of interstate
universities operating through an agent.
Subsections (3) to (5) set out the information that must be contained in
the register for each of these institutions.
Clause 81 requires the Minister make the register available to the public.
A fee may be prescribed under a regulation for the inspection of the register
and to copy the register. If such a fee is prescribed, a person must pay the
fee.
PART 9--MISCELLANEOUS
Clause 82 makes it an offence for person to use the title `university' in
relation to an education institution, education facility, school, college or
other place that delivers a course of education, unless it is a university.
Subsection (2) further provides that a person must not hold out an
educational institution, education facility, school, college or other place
that delivers a course of education, as being a university unless it is a
university. For example, a college that is not a university would commit an
offence if it calls its premises a `university'. This does not prevent a person
from using the term `university' for the purposes of naming a particular
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place (e.g. `University Bookshop' or `University Avenue'), if the place is
not an educational institution.
Subsection (3) provides for a specific exemption from the offences in
this clause for the education institution known as `University of the Third
Age'.
Clause 83 provides for protection from liability for the Minister for acts
done, or omissions made, honestly and without negligence under the Act.
The liability will instead attach to the State.
Clause 84 provides for the Minister to issue guidelines under this Act.
Subsection (2) provides for matters about which a guideline may be
made. However, guidelines are not limited to the matters set out in this
subsection.
The chief executive must keep a copy of a guideline:
· available for inspection at the head office of the department;
· available for inspection at any other place the chief executive
considers appropriate;
· available for supply to a person; and
· on the department internet site at www.education.qld.gov.au.
Inspection of the guidelines and taking extracts from the guidelines is to
be free of charge.
Clause 85 empowers that the Minister may delegate the Minister's
powers under this Act to a person that has the qualifications, experience or
standing appropriate to exercise the power.
Clause 86 requires that as soon as practicable after the end of each
financial year, the Minister is to prepare a report about the operation of this
Act during that year. The Minister must cause a copy of the report to be laid
before the Legislative Assembly.
Clause 87 clarifies that if the Minister is taken to have decided to refuse
to grant an application under the Act, the Minister is required to give the
applicant an information notice about the decision.
Clause 88 provides that the Minister may approve forms for use under
this Act.
Clause 89 empowers the Governor in Council to make regulations under
this Act.
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PART 10--REPEAL AND TRANSITIONAL PROVISIONS
Division 1--Repeal
Clause 90 repeals the Higher Education (General Provisions) Act 1993.
Division 2--Transitional provisions
Clause 91 provides for definitions of "commencement" and "repealed
Act" for the purposes of Division 2.
Clause 92 states that if an Act or document refers to the Higher
Education (General Provisions) Act 1993 the reference may be taken to be
a reference to the Bill (if the context permits).
Clause 93 provides that if a proposal is made under the repealed Act for
a university to be established or recognised in Queensland at the time this
Bill commences, the proposal is taken to be an application under section 6
of this Act.
Subsection (3) provides that sections 6(2)(c) and 19 do not apply to a
proposal made under the repealed Act for a university to be established or
recognised in Queensland. Therefore, no fee is required under section
6(2)(c) for such a proposal.
Clause 19 (Review of university's operation) of the Bill is not relevant to
the transitioning of a proposal for a university to be established or
recognised in Queensland made under the repealed Act. Therefore, clause
19 is excluded under subsection (3), as the review cannot operate until the
university is established or recognised. However, clause 19 will apply to an
application once it is approved under the Bill and the university is
established or recognised under an Act (i.e. the university will be subject to
a review after its fifth anniversary).
Clause 94 provides that if an institution held an approval to operate as a
foreign university under section 6 of the repealed Act, the approval is taken
to be an approval under section 25(2) of the Act (`continuing approval'). If
the current approval was subject to a condition, the continuing approval is
also subject to the condition.
The approval continues until the day that is one year after the
commencement, unless the approval is surrendered or cancelled. A holder
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of a continuing approval may apply to renew the approval before the expiry
of the continuing approval. Under clause 30 of the Bill, (which sets out the
requirements for applications for renewal), a holder of a continuing
approval needs to apply for renewal within three months after the
commencement of the Bill. This entails the preparation of an operational
plan for the overseas higher education institution and submitting the
operational plan with the application.
Subsection (6) provides that an operational plan under section 23 is not
required to be available for inspection by the holder of a continuing
approval until at least one year after the commencement of the Bill, as the
renewal does not commence until this time. For example, if a holder
applies for renewal, and the application is granted within the one-year
period after the commencement of the Bill, under clause 23 the operational
plan must be available for inspection after the one-year period has expired.
Clause 95 provides that if, at the commencement of the Bill, an
application has been made under part 4 of the repealed Act and a decision
on the application has not been made, the application is taken to be an
application for an approval made under section 24.
However, subsection (3) provides that the applicant is not required to pay
a fee or submit an operational plan for such a transitioned application.
Clause 96 provides that if a course has been accredited under section
10(2) the repealed Act and has not been cancelled at the time the Bill
commences, the course is taken to be an accreditation of the course under
clause 47(2) (the `continuing accreditation'). If the accreditation was
subject to a condition under the repealed Act, the continuing accreditation
will also be subject to the condition.
The continuing accreditation continues until the last day the current
accreditation expires unless the accreditation is surrendered or cancelled.
Clause 97 provides that if there is an existing application by a non-
university provider for accreditation that was made under section 10(2) of
the repealed Act, the application will become an application under section
46 of the Bill. However, the fee prescribed under clause 46(2)(c) does not
apply.
Clause 98 provides that an interstate non-university provider which
immediately before commencement of the Bill was offering a higher
education course in Queensland may continue to offer the course until one
year after the commencement of the Act (the "exemption period"), without
being liable for an offence under section 45 or 58. For example, a New
South Wales non-university provider offering a course in Queensland
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Higher Education (General Provisions) Bill 2003
before the commencement date will be able to continue to offer that course
for one year after the commencement of the Bill. During the one-year
period the provider must apply under clause 46 of the Bill for accreditation
of the higher education course to be able to continue to offer the course in
Queensland after the one-year period ends.
Subsection 98(4) provides that if the interstate non-university provider
makes application for accreditation in Queensland under clause 46, the
exemption period continues until the applicant is given notice of the
decision about the application.
Clause 99 provides that clauses 61 and 71 do not apply to an interstate
university operating in Queensland, under an agency agreement, for six
months after the commencement of the Bill. This enables an interstate
university already operating in Queensland to apply for approval within six
months after the commencement of the Bill. The interstate university will
not be committing an offence under the Bill by continuing to operate
during this six-month period.
However, subsection 99(4) provides that if the governing body of the
interstate university makes application for approval to operate in
Queensland under clause 62, the six-month exemption period continues
until the applicant is given notice of the decision about the application.
Clause 100 provides for the commencement and continuation of appeals
to the District Court under the repealed Act.
Clause 101 provides for the commencement or continuation of
proceedings for an offence against the repealed Act, as if the Bill had not
been commenced.
PART 11--AMENDMENTS OF ACTS
Clause 102 provides that Schedule 1 amends the legislation mentioned
in it.
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Higher Education (General Provisions) Bill 2003
SCHEDULE 1
Schedule 1 provides for consequential amendments to be made to certain
Acts to omit references to the Higher Education (General Provisions) Act
1993 and to insert references to the Higher Education (General Provisions)
Act 2003.
Amendments are also made to the Medical Practitioners Registration
Act 2001 and the Dental Practitioners Registration Act 2001 to repeal and
replace provisions which will be redundant as a consequence of the repeal
of section 8(3) of the Higher Education (General Provisions) Act 1993.
The new provision in the Medical Practitioners Registration Act 2001
makes it an offence for health practitioners (other than medical
practitioners and dentists) to use the title "doctor" unless they hold a
doctorate. To help consumers distinguish between these health practitioners
and medical practitioners, the provision also requires these practitioners,
when using the title "doctor" in or in connection with the provision of a
health service, to also indicate the doctorate held. The new provision in the
Dental Practitioners Registration Act 2001 makes it an offence for a
registrant to use the title "doctor" unless used in conjunction with other
specified titles (eg. dentist).
As a consequence of the repeal of section 8(3) of the current Act,
Schedule 1 repeals section 24A of the Veterinary Surgeons Act 1936.
SCHEDULE 2
Schedule 2 sets out the dictionary terms used in this Act.
© State of Queensland 2003