Go8 Submission to the TEQSA consultation on proposed changes to publication of regulatory decisions
The Group of Eight (Go8) welcomes the opportunity to offer feedback on the proposal put forward by the Tertiary Education Quality and Standards Agency (TEQSA) regarding the publication of regulatory decisions. The Go8 supports the principle of enhanced transparency and accountability in regulatory and quality assurance frameworks. At the same time, the Go8 maintains our previously-stated position that it is very important any such enhancements to those frameworks be made in a deliberative and considered way.
Please note that the comments and recommendations below represent the views of the Go8 network; member universities may also make their own, more detailed submissions.
The Go8 unambiguously and firmly supports the proposition that maximum protections should be in place for students in our higher education system.
Australia already has substantial - and highly effective - protections for domestic students as well as a system of world-leading protections for our overseas students. Both these systems for protection relate primarily to tuition and are a source of significant benefit to the reputation of Australia's higher education framework. The protections in place for overseas students, for example, already demand a significant level of compliance and require that information be provided to students prior to enrolment and commencement to protect their investment in a quality education and student experience.
The importance of maintaining Australia's hard-won reputation for excellence in higher education to our students cannot be overstated. Allowing regulatory decisions to be published before the affected parties have had an opportunity to access any review of that decisions would appear to remove any procedural fairness and diminish the scope for natural justice for providers.
In our view the proposal poses the very great risk of damaging Australia's domestic and international reputation. Such a proposal is also very likely to adversely affect a provider's existing student body; potentially without any basis.
Given the work that has been done to build and protect Australia's reputation in this sphere over many decades, this is an unacceptable risk given the possible gain appears minimal at best.
This proposal from TEQSA also poses a significant risk to the reputation of the Agency itself. As noted in the consultation paper, a similar mechanism for publication has been in place at the Australian Skills Quality Authority (ASQA) since mid-2016. It is not clear that this measure has been improved or is likely to improve the overall quality or regulation of the vocational education and training sector.
To support the proposal to publish regulatory decisions as outlined, TEQSA asserts a significant benefit will accrue to prospective higher education students arising from greater information by placing information on the National Register. On face value and in the absence of any evidence presented by TEQSA regarding the current use of the National Register by prospective students this would appear a weak justification. Indeed, there would be genuine and valid questions as to the empirical evidence used by TEQSA to support the proposition that prospective students or other stakeholders will benefit by publishing regulatory decisions on the National Register. For example, is TEQSA actively analysing the number of students and prospective students accessing the National Register for this purpose and the detail of the information accessed by stakeholder profile?
The firm view of the Go8 is that for a regulatory decision to be published under Division 1 of Part 10 of the Tertiary Education Quality and Standards Act 2011 (TEQSA Act):
- where no application for review has been lodged under subsection 184(4) of the TEQSA Act, the full period of 30 days for a review must first expire.
- where an application has been made under section 184 of the TEQSA Act, a decision (under section 185 of the TEQSA Act) on that application must be made prior to the decision being published (the deadline for decisions set out in section 186 of the TEQSA Act.)
In the event TEQSA adopts the proposal to publish this information ahead of any review process having run its course, the integrity of the regulatory process would be severely comrpomised. Should TEQSA feel that shortening the existing timeframes outlined here is vital to upholding the integrity of the regulatory framework, then shortening the period within which decisions must be made from 90 days might have a substantial impact.
Under the current Act, TEQSA is required to notify a provider of a decision on an application for review by the expiration of the 90-day period (subsection 186(1) refers). In cases where TEQSA does not notify the provider, the decision is automatically taken to have been affirmed.
The affect of this is to affirm all decisions of TEQSA in cases where it has not carried out reviews in a timely fashion. In any regulatory and quality assurance system where a mature regulatory agency seeks to work in partnership with sector participants, this kind of regulatory construction - in parallel with the proposal to publish decisions as they are made (and likely issue simultaneous media releases) that may very well be prejudicial to sector participants - is highly inappropriate.
A further concern is that TEQSA's proposal does not offer any relevant detail on the publication of decisions in the course of TEQSA's activity as an ESOS Agency under the Education Services for Overseas Students Act 2000. The current proposal from TEQSA does not appear to align with the mechanisms for review under the ESOS Act.
Further, the Go8 is also concerned about the publication of regulatory decisions where that publication is isolated from the context of the provider and the circumstances surrounding the decision. The proposal by TEQSA poses the risk of not offering any regulatory context and may result in disproportionate reputational damage to both the provider and the sector more broadly. The specific proposal to issue media releases following regulatory decisions is one aspect of the broader proposal that is likely to have a deleterious effect on the sector.
The Go8 recommends TEQSA does not proceed with any measures in the current proposal.
The Go8 maintains the view that improved risk-based regulation and quality assurance in partnership with industry participants is a more effective way of enhancing the quality and reputation of our sector.