Australian College of Theology Ltd and Tertiary Education Quality and Standards Agency

Australian College of Theology Ltd and Tertiary Education Quality and Standards Agency [2024] AATA 3598 (11 October 2024)
Division:GENERAL DIVISION
File Number(s): 2021/4660
Re:Australian College of Theology Ltd
APPLICANT

Tertiary Education Quality and Standards AgencyAnd
RESPONDENT

DECISION
Tribunal:Member Lee Benjamin
Date:11 October 2024
Place:Brisbane

The Tribunal pursuant to subsection 43(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth):
(1)sets aside the decision under review; and
(2)remits the matter to the Respondent for reconsideration in accordance with the direction that the Applicant be registered as an Australian University, subject to the completion of the requirements of section 39 of the Tertiary Education Quality and Standards Agency Act 2011 (Cth) within 90 days.

...............................[SGD].........................................
Member Lee Benjamin
Catchwords
HIGHER EDUCATION REGULATION - Application to be registered as Australian University - TEQSA refusal - where issue is whether Applicant meets benchmark of world standard research output - where Tribunal satisfied Applicant currently meets standard - whether Tribunal should exercise its discretionary power - decision set aside and remitted
Legislation
Tertiary Education Quality and Standards Agency Act 2011 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Higher Education Support Act 2003 (Cth)
Australian Research Council Act 2001 (Cth)
Revised Explanatory Memorandum to the Higher Education Legislation Amendment (Provider Category Standard and Other Measures) Bill 2020
Secondary Materials
Administrative Appeals Tribunal Guideline, “Persons Giving Expert and Opinion Evidence”
Higher Education Standards Framework (Threshold Standard) 2021
ERA 2018 Evaluation Handbook
Coaldrake, “What’s In A Name? Review of the Higher Education Provider Category Standards”, Final Report, September 2019
Contents
Decision
REASONS FOR DECISION
WHAT IS THIS DECISION ABOUT?
WHAT HAPPENED?
WHAT QUESTIONS MUST BE ANSWERED?
Jurisdiction
Legislative Framework
TEQSA Act
2021 Threshold Standards
Research Determination
Approach in reviewing TEQSA’s Decision
WITNESSES
ACT’s witnesses
Professor Dalziel
Professor Omerod
Emeritus Professors Mayer and Mews
Mr Wells and Professor Flitman
Respondent’s witnesses
Emeritus Professor McLaren
Professor Siddle
Professor Hughes-Warrington
Does act meet the criteria for the “australian university” standard?
Is ACT’s research at or above “world standard” benchmark?
First primary contention - peer review exercise
Summary of peer review exercise
Second primary contention - Additional factors that support a conclusion that ACT’s research is at or above world standard
ACT’s governance framework for research
Strength of ACT’s research community
Engagement and impact of ACT’s researchers
Quality of the publications in which ACT’s research outputs are published
Volume of citations of ACT’s research
ACT’s success in obtaining funding
Comparisons of ACT’s performance to existing universities with a similar focus on religious studies and theology (benchmarking)
Summary of factors raised in ACT second primary contention

Third primary contention - Response to the Respondent’s concerns
Volume and concentration of ACT’s research
Definition of research
Qualitative representativeness of 30% sample
Differences between ACT’s peer review process and ERA process
Utility of benchmarking and bibliometrics
Summary of Respondent concerns

Does ACT currently undertake research at world standard?
Alternative argument - whether ACT undertakes, or will undertake, such research within 10-year period
Discretion to change act’s category
REQUIREMENT TO NOTIFY HIGHER EDUCATION MINISTERS
Respondent’s Proposed Approach
ACT Proposed Approach
DECISION
REASONS FOR DECISION
Member Lee Benjamin
11 October 2024
WHAT IS THIS DECISION ABOUT?

By application dated 9 July 2021, the Australian College of Theology (ACT) seeks review of a decision of the Respondent (TEQSA) made on 1 July 2021 and varied on 1 September 2022 under the Tertiary Education Quality and Standards Agency Act 2011 (Cth) (TEQSA Act). The decision was varied to change the provider category in which ACT is registered under subsection 38(1) of the TEQSA Act from Higher Education Provider to University College. In making the decision, TEQSA was not satisfied that ACT met the criteria in the Higher Education Framework (Threshold Standards) 2021 (Threshold Standards) to be categorised as an Australian University. The question before me is whether ACT meets the criteria for categorisation as an Australian University under the Threshold Standards.[1] On balance, I find the answer to this question to be, yes.
WHAT HAPPENED?[2]
[1] Respondent Statement of Facts, Issues and Contentions (RSFIC), p 1, para 1-4.
[2] The procedural history and background information pertaining to this matter is helpfully set out in the Statements of Facts, Issues and Contentions filed by the each of the parties, as well as the closing submissions filed by each of the parties. The Tribunal has been greatly assisted by the comprehensive nature of the submissions of both parties.
ACT is Australia’s largest provider of theological education.[3] It has enjoyed a long and distinguished history characterised by service of the Christian community and significant growth. Originally constituted in 1891, by 2020 it reached the point that it services some 3,200 students and 17 colleges, including a college in New Zealand.[4]
[3] Applicant Statement of Facts, Issues and Contentions (ASFIC), p 12, para 10.
[4] Exhibit A5, p 4, para 1.
In 2003, ACT was approved as a higher education provider under the Higher Education Support Act 2003 (Cth).[5]
[5] ASFIC, p 12, para 10.
Since 2011, ACT has been registered to provide higher education pursuant to the TEQSA Act, initially as a Higher Education Provider, then as an Institute of Higher Education and currently as a University College.[6] This is the second highest category under the statutory regime covering tertiary education.[7]
[6] Exhibit A5, p 4, para 2.
[7] ASFIC, p 1, para 2.
Since around 2016, ACT has been seeking to become registered as an Australian University.[8] It first applied to TEQSA to change its provider registration category to “Australian University of Specialisation” on 4 April 2016.[9] TEQSA took over three years to determine this application, before finally refusing it in July 2019.[10]
[8] Exhibit A5, p 4, para 3.
[9] ASFIC, p 12, para 12.
[10] ASFIC, p 12, para 12.
In August 2019, ACT applied to this Tribunal for review of TEQSA’s refusal (First Review Application).[11]
[11] ASFIC, p 12-13, para 12.
The First Review Application was resolved by consent on 18 September 2019 on the basis that ACT would make a fresh application under section 18 of the TEQSA Act so as to avoid an unnecessary dispute about the Tribunal’s jurisdiction. The parties then engaged in negotiations about the mechanics of a new decision which could be reviewed by the Tribunal. Those negotiations were ultimately overtaken by the introduction of new provider categories in the Threshold Standards in 2021. As TEQSA subsequently acknowledged, its assessment of ACT’s application “took too long”.[12]
[12] ASFIC, p 13, para 13.
On 12 March 2021, TEQSA wrote to ACT to inform it of its options with respect to the transition to the new provider categories.[13]
[13] ASFIC, p 13, para 14.
On 23 April 2021, ACT made a submission to TEQSA to be considered for the categories of University College and Australian University under the Threshold Standards.[14]
[14] ASFIC, p 13, para 15.
On 1 July 2021, TEQSA made a decision under section 38 of the TEQSA Act to change the provider category in which ACT was registered to Institute of Higher Education (that is, a lower category than either University College or Australian University), enclosing a Statement of Reasons. The Statement of Reasons relied on:[15]
(a)Standards B1.2.6 and B1.3.9 in relation to systemic support for scholarship and how scholarly activities and outcomes inform teaching, learning and professional practice (Scholarship Standards); and
(b)standards B1.2.5 and B1.3.8 in relation to mature and advanced processes for monitoring and quality assurance (paragraphs [14] to [25]) (QA Standards).
[15] ASFIC, p 13, para 16.
On 9 July 2021, ACT filed the application for review of decision which is presently before the Tribunal.
On 8 October 2021, the Tribunal directed TEQSA to advise ACT and the Tribunal if there are any further standards beyond the Scholarship Standards and the QA Standards which should be considered by the Tribunal in determining ACT’s application.[16]
[16] Exhibit A5, p 11, para 33.
On 22 October 2021, TEQSA advised that whether ACT meets criteria B1.3.16-B1.3.19 of the Threshold Standards was also in dispute.[17]
[17] Exhibit A5, p 11, para 34.
On or around 10 August 2022, TEQSA agreed to a consent order pursuant to subsection 26(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) providing for the alteration of the decision under review, such that the provider category in which ACT was registered became University College rather than Institute of Higher Education. ACT says that TEQSA’s agreement that ACT should become a University College therefore reflected an acceptance that ACT satisfied the Scholarship Standards and the QA Standards.[18]
[18] Exhibit A5, p 11, para 35.
On 26 August 2022, the Tribunal made an order consenting to the alteration of the decision, noting that the proceeding would continue as an application for review of the decision as altered.[19]
[19] Exhibit A5, p 11, para 36.
On 29 September 2022, TEQSA notified ACT of a decision made on 1 September 2022 that it had determined to change the provider category in which ACT is registered to University College (Altered Decision).[20]
[20] Exhibit A5, p 12, para 37.
It is common ground between the parties that ACT satisfies the legislative requirements to become a university set out in the Threshold Standards, with one exception.[21] The Respondent cites this exception is being “critical”, noting that undertaking research of the necessary quality is a defining feature of a university.[22] The Respondent contends that this consideration is, in fact, a “very big deal”:[23]
… A university is not just simply a benefit that [an] institution pays its dues and is entitled to as of right. It is a very, very significant status which reflects on Australia’s place in the international community, both in teaching and in research …
[21] Exhibit R2, p 2, para 4.
[22] Exhibit R2, p 2, para 4.
[23] Transcript, p 44, lines 20-23.
There is no quarrel between the parties regarding the importance of the decision that the Tribunal must make.
Relevantly, the Threshold Standard exception in question is the requirement of B1.3.16 to B1.3.19 of the Threshold Standards. Broadly speaking, those provisions require that ACT undertake research at or above “world standard” in the field of education in which it has authority to self-accredit courses, which, in this case, is Religious Studies.[24]
[24] Exhibit A5, p 4, para 4; RSFIC, p 2, para 6.
In these proceedings, ACT seeks to substantiate that its research is at or above world standard by relying on at least two forms of evidence:[25]
(a)A peer review analysis of a sample of its research output conducted by two religious studies experts, Emeritus Professor Constant Mews (Professor Mews) and Emeritus Professor Wendy Mayer (Professor Mayer); and
(b)An assessment of its research activities conducted by two consultants with experience in reviews of research performance generally, Mr Michael Wells and Professor Andrew Flitman.
[25] RSFIC, p 2, para 7.
ACT further points out that it has self-accrediting authority in one broad field of education, namely “Society and Culture”, in the narrow field of education “Philosophy and Religious Studies”, and in the detailed field “Religious Studies”. ACT is therefore not seeking to be, and would not be, a university offering a comprehensive range of courses similar to larger universities. Rather, if ACT’s application succeeds, it will become a university with a specialised focus within the meaning of the Threshold Standards.[26]
[26] ASFIC, p 10, para 4.
The Respondent’s objections to ACT being registered as an Australian University can be broadly summarised in the following terms:[27]
(a)First, the Respondent says that the research conducted at ACT is highly concentrated among a small cohort of staff in a small number of colleges;
(b)Second, the Respondent has concerns about ACT’s academic output into research and what it describes as “confessional scholarship”, which apparently results in the exclusion of lesser quality outputs from its research sample; and
(c)Third, the Respondent contends that ACT’s reliance on other indicators such as benchmarking and bibliometrics is misguided, and these measures are not a reliable indicator of world standard research.
[27] RSFIC, p 2, para 8. The Respondent’s objections are more fulsomely addressed in later paragraphs of these Reasons.
The hearing of this matter took place in Brisbane. At the hearing, the Tribunal heard concurrent evidence from the following persons:
(a)Religious experts:
(i)Professor Mayer;
(ii)Professor Mews; and
(iii)Professor James McLaren (Professor McLaren);
(b)Higher Education Systems experts:
(i)Michael Wells;
(ii)Professor Andrew Flitman (Professor Flitman);
(iii)Professor David Siddle (Professor Siddle); and
(iv)Emeritus Professor Marnie Hughes-Warrington (Professor Hughes-Warrington).
WHAT QUESTIONS MUST BE ANSWERED?
ACT seeks a review of a decision by the Respondent not to change ACT’s provider category to Australian University pursuant to section 38 of the TEQSA Act. The Respondent contends that the decision to change ACT’s provider category to University College, rather than Australian University, should be affirmed.
The primary issue before me is whether the correct or preferable decision is to change the ACT’s provider category to Australian University. I must be satisfied that, on the material before me, that ACT’s provider category should be changed in this way.[28]
[28] ASFIC, p 11, para 5.
In determining this issue, I must answer two questions:[29]
(a)First, whether ACT meets the criteria for the Australian University category set out in Part B1.3 of the Theshold Standards; and
(b)Second, whether I should exercise my discretion to change ACT’s provider category. I may proceed to exercise this discretion even if I am not satisfied that ACT has met the criteria in Part B1.3 of the Threshold Standards, having regard to TEQSA’s basic principles for regulation set out in sections 14 or 16 of the TEQSA Act.[30]
[29] ASFIC, p 11, para 6-9; Exhibit R2, p 1, para 2.
[30] TEQSA Act, section 13.
The crux of this matter effectively turns on how this first question is answered.
I must answer this question by giving due consideration to the following elements:
(a)Whether ACT currently undertakes research at or above “world standard” (meaning that B1.3.17 is therefore satisfied), which is measured using the so-called “best practice indicators”, that leads to the creation of new knowledge and original creative endeavour in the “Society and Culture” field of education;[31] and/or
(b)whether ACT will undertake such research within a period of at least 10 years (B1.3.16 of the Threshold Standards).[32]
[31] Exhibit R2, p 1, para 2.1.
[32] The Respondent does not accept ACT’s contention that this element is to be formulated this way. According to the Respondent, the criteria must be met at the time of entry into the Australian University category; it is not sufficient if it will be met within 10 years of such entry. It follows that there is no difference between the requirements of B1.3.16 and B1.3.17, and therefore, according to the Respondent, there is essentially only one substantive question to answer (see RSFIC, p 14, para 62).
It is important to note that regardless of how the first question is answered, the second question of how my discretion is to be utilised operates separately and independently from the first question. That is to say, regardless of whether I am satisfied that ACT meets the criteria for the Australian University category, it is ultimately a matter for me as to whether ACT should be duly categorised as an Australian University, subject to the other provisions of the TEQSA Act.[33]
[33] Including section 39.
At this juncture, I will address a further procedural requirement stemming from section 39 of the TEQSA Act. The section imposes an obligation on TEQSA to give ACT and the Minister of each relevant State and Territory responsible for higher education a written notice stating that TEQSA intends to make the decision for specified reasons and a reasonable opportunity to make representations to TEQSA in relation to the proposed decision.[34]
[34] Exhibit R2, p 2, para 3.
JURISDICTION
It is common ground between the parties that the Tribunal has jurisdiction to determine this application.[35]
[35] RSFIC, p 1, para 3; p 10, para 47.
The Altered Decision was made pursuant to section 38 of the TEQSA Act. It is therefore a reviewable decision within section 183 of the TEQSA Act. ACT says that in circumstances where the Altered Decision was made by TEQSA, not a delegate of TEQSA, the Tribunal has jurisdiction to review it.[36]
[36] Exhibit A5, p 12, para 40.
I readily accept the parties’ submissions with respect to jurisdiction. I am of the view (and find) that the Tribunal has jurisdiction to determine this application.
LEGISLATIVE FRAMEWORK
The establishment and regulation of universities has historically been a matter for the States and Territories.[37]
[37] Exhibit A5, p 13, para 45.
Since at least the early 2000s, however, universities have also been regulated and substantially funded by the Commonwealth, in three significant respects:[38]
(a)the Higher Education Support Act 2003 (Cth) provided for the funding of higher education;
(b)the Education Services for Overseas Students Act 2000 (Cth) provided for the provision of courses to overseas students;
(c)the Australian Research Council Act 2001 (Cth) provided for the establishment of the Australian Research Council (ARC) and the funding of research programs. Amongst other activities, the ARC has periodically conducted the national research assessment process known as the Excellent in Research for Australia (ERA) process. The ERA process was conducted most recently in 2018.[39]
[38] Exhibit A5, p 13-14, para 46.
[39] Annexure 1 to ASFIC provides an overview of the ERA process.
TEQSA Act
The TEQSA Act provides for the national regulation of higher education. Amongst other matters, the TEQSA Act established TEQSA to register providers, accredit courses of study and to regulate higher education using a quality-based standards regime known as the Higher Education Standards Framework. This regime includes the Threshold Standards, the first version of which was made in 2011 and a further version of which was made in 2015.[40]
[40] Exhibit A5, p 14-15, para 48.
In 2021, the TEQSA Act was amended and coincided with the introduction of the 2021 Threshold Standards.[41]
[41] Exhibit A5, p 15, para 48.
ACT highlights the following key elements of the TEQSA Act:[42]
(a)an entity must be registered before it can offer or confer regulated higher education awards. The maximum period an entity may be registered for is 7 years. Registration is then able to be renewed or extended for periods not exceeding 7 years;
(b)registered higher education providers must have their courses of study accredited before those courses can be provided in connection with regulated higher education awards. Some providers are authorised to self-accredit courses of study, namely providers registered in the Australian University provider category or those that TEQSA authorises to self-accredit one or more courses of study;
(c)TEQSA registers providers and accredits courses of study. TEQSA regulates higher education using principles relating to regulatory necessity, risk and proportionality, and using a standards-based quality framework; and
(d)the quality framework is a series of standards made by the Minister on the advice of the Higher Education Standards Panel.
[42] Exhibit A5, p 16-17, para 55.

The TEQSA Act contemplates that registered providers will be registered in a particular “provider category”. An entity seeking to become a higher education provider may apply “for registration within a particular provider category” per subsection 18(1). If TEQSA decides to grant an application for registration as a higher education provider, it must notify the applicant, in writing, of the provider category in which the applicant is registered and, if the category is not that which the applicant applied for, the reasons for deciding on that category: subsections 22(b)(i)-(ia). Section 38 of the TEQSA Act then empowers TEQSA to change the provider category in which a registered higher education provider is registered, on its own initiative or on application by the provider.[43]
[43] Exhibit A5, p 17, para 56.
The term “provider category” is defined as a provider category listed in the Threshold Standards: section 5. The 2021 Threshold Standards list four provider categories: Institute of Higher Education, University College, Australian University and Overseas University. The latter three categories are in a higher “tier” than the Institute of Higher Education category, in that the standards for registration in those categories include the standards for the Institute of Higher Education category plus additional standards.[44]
[44] Exhibit A5, p 17-18, para 57.
Before deciding to change (or not change) a provider’s provider category under section 38 of the TEQSA Act, TEQSA (and, in the instant case therefore, the Tribunal) “must have regard to the Threshold Standards”: subsection 38(2). Part B1 of the Threshold Standards sets out “criteria” for each of the provider categories, including, in Part B1.3, criteria for the Australian University category (one of which is that the provider meets the three criteria for the Institute of Higher Education category).[45]
[45] Exhibit A5, p 18, para 58.
However, ACT points out that neither section 38 of the TEQSA Act nor the Threshold Standards mandate that a provider must meet the criteria applicable to a provider category as a precondition to registration in that provider category. While those criteria are mandatory considerations, there remains a general discretion to change (or not change) a provider’s provider category regardless of whether the applicable standards are met. This discretion is indicated by the word “may” in subsection 38(1). This contrasts with the language of subsection 38(3) (“must have regard to the Threshold Standards”) and the language of other sections of the TEQSA Act that impose mandatory preconditions.[46]
[46] Exhibit A5, p 18, para 59.
The discretion must be exercised in accordance with the three “basic principles for regulation” set out in the TEQSA Act. Those principles are:[47]
(a)the principle of regulatory necessity: the exercise of the power must not burden the entity any more than is reasonably necessary (section 14);
(b)the principle of regulatory risk. The exercise of the power must have regard to:
(i)the entity’s history, including of scholarship, teaching, research, student experiences, financial status and capacity and compliance with relevant regulatory requirements including the TEQSA Act, Threshold Standards and other laws regulating education (Relevant Laws); and
(ii)matters relating to the risk of the entity not complying with those Relevant Laws in the future (section 15); and
(c)the principle of proportionate regulation: the exercise of power must be in proportion to any non-compliance or risk of future non-compliance by the entity with Relevant Laws (section 16).
[47] Exhibit A5, p 18-19, para 60.
2021 Threshold Standards
The 2021 Threshold Standards are comprised of two parts:[48]
(a)Part A headed “Standards for Higher Education”, which contains standards to be met by all providers of higher education; and
(b)Part B headed “Criteria for Higher Education Providers”, which contains standards applicable to each of the four categories of provider.
[48] Exhibit A5, p 19, para 61.
Part B1.3 provides for standards for providers in the Australian University category. There are 16 operative standards in total.[49]
[49] Exhibit A5, p 19, para 62.
The dispute in this case concerns criteria B1.3.16 and/or B1.3.17 (read with the definition in criterion B1.3.19). This part of the 2021 Threshold Standards relevantly provides as follows:[50]
[50] Exhibit A5, p 19-20, para 63.
Research requirements
The undertaking of research that leads to new knowledge and original creative endeavour and research training are fundamental to the status of a higher education provider as an ‘Australian University’.
Note: In assessing the research requirements in criteria B1.3.16-19, TEQSA may specify the matters to be considered in a legislative instrument. TEQSA will use existing national research benchmarking exercises where they are applicable. Where they are not applicable, TEQSA will benchmark against standard research indicators.
16. The higher education provider, within ten years after entry to the ‘Australian University’ category, undertakes research at or above one or both of the benchmark standards described in B1.3.19 that leads to the creation of new knowledge and original creative endeavour in:
a. at least three, or at least 50 per cent, of the broad (2-digit) fields of education in which it delivers courses of study, whichever is greater,
b. all broad (2-digit) fields of education in which it has authority to self-accredit, in the case of a university with a specialised focus.
17. Until the standard set out in criterion B1.3.16 is achieved, the provider undertakes research at or above one or both of the benchmark standards described in B1.3.19 that leads to the creation of new knowledge and original creative endeavour in:
a. at least three, or at least 30 per cent, of the broad (2-digit) fields of education in which it delivers courses of study, whichever is greater,
b. all broad (2-digit) fields of education in which it has authority to self-accredit, in the case of a university with a specialised focus.
Note: Once the standard set out in criterion B1.3.16 is achieved, the provider’s research requirements will thereafter be assessed against that standard and not criterion B1.3.17.
…
19. The benchmark standards for research are:
a. research that is ‘world standard’ measured using best practice indicators, and/or
b. research of national standing in fields specific to Australia, in the case of research that is not easily captured by existing standard indicators.
Both parties agree that ACT’s research is not in a field specific to Australia and that the benchmark standard in criterion B1.3.19(a) is applicable.[51]
[51] Exhibit A5, p 20, para 64.
Paragraph (b) of criteria B1.3.16 and B1.3.17 refer to a university with a specialised focus. This is defined as a university that has self-accrediting authority in only one or two broad (two-digit) fields of education. ACT has self-accrediting authority in one broad (one-digit) field of education, namely “Society and Culture” (two-digit code), in the narrow (four-digit) field of education Philosophy and Religious Studies (0917) and in the detailed field Religious Studies (091703). Thus, it seeks registration as a “university with a specialised focus”. ACT says that it follows that the relevant sub-criterion for each of criteria B1.3.16 and B1.3.17 is (b).[52]
[52] Exhibit A5, p 20-21, para 65.
ACT says that it follows from the above that:[53]
(a)criteria B1.3.16 and B1.3.17 will both be satisfied, or alternatively that B1.3.16 will be satisfied and B1.3.17 will no longer operate, if ACT currently undertakes research in the field of education Society and Culture at or above “world standard” which leads to the creation of new knowledge and original creative endeavour; and
(b)criterion B1.3.16 will also be satisfied if ACT does not currently undertake such research but will do so within the next 10 years.
[53] Exhibit A5, p 21, para 66.
Criteria B1.3.16 to B1.3.19 use a number of terms or concepts, including with respect to the term “research”. ACT contends that it is necessary for these to be explored further and provides seven submissions to this end.[54]
[54] Exhibit A5, p 21, para 67.
The first regards the concept of “research”. The term “research” is not defined in the TEQSA Act or the 2021 Threshold Standards. It is apparent, ACT says, that research refers to scholarship that creates new knowledge or uses existing knowledge in a new and creative way so as to generate new concepts, methodologies or understandings. It is fundamentally concerned with originality and creativity and is to be distinguished from other kinds of scholarship which merely apply or communicate existing knowledge. In essence, ACT says that while all research is scholarship, not all scholarship is research.[55]
[55] Exhibit A5, p 21-22, para 68.
ACT submits that the foregoing construction is supported by:[56]
(a)the preamble to criteria B1.3.16-B1.3.19, which refers to “research that leads to new knowledge and original creative endeavour”;
(b)extrinsic material - in particular, ACT refers to the Coaldrake Report,[57] which describes research in such terms, including by reference to the definition used in the ERA process. Specifically, the ERA 2018 Evaluation Handbook defines research as, “… the creation of new knowledge and/or the use of existing knowledge in a new and creative way to generate new concepts, methodologies, inventions and understandings. This could include the synthesis of and analysis of previous research to the extent that it is new and creative”; and
(c)the ordinary meaning of the concept of research in academic terms. In this regard, the parties’ religious studies experts all agreed that the ERA definition of research represented a standard definition.
[56] Exhibit A5, p 22, para 69.
[57] Coaldrake, “What’s In A Name? Review of the Higher Education Provider Category Standards”, Final Report, September 2019.
Given the religious studies experts’ views, I accept the above submissions as to the concept of “research”.
The second contention ACT draws to my attention is criteria B1.3.16 and B1.3.17, which refer to “broad (2-digit) fields of education”. This term is not defined. However, ACT says that it is apparent that it refers to the Australian Standard Classification of Education (ASCED) classification system, which defines the subject-matter of educational activity at various levels using broad (2-digit), narrow (4-digit) and detailed (6-digit) fields of education.[58]
[58] Exhibit A5, p 22, para 70.
ACT points out that the notion of “fields of education” is distinct to that of “fields of research”. ACT says that fields of research are classified according to the Australian and New Zealand Standard Research Classification (ANZSRC) system which itself identifies research activity into 2-digit, 4-digit and 6-digit fields. Relevantly, the ANZSRC classification system in force at the time of the 2018 ERA process is ANZSRC 2008. The current ANZSRC classification system is ANZSRC 2020.[59]
[59] Exhibit A5, p 22-23, para 71.
However, ACT says that while fields of education and fields of research are conceptually distinct, there is concordance between the two. For example, the 2-digit field of education “Society and Culture” concords with the 2-digit field of research “Philosophy and Religious Studies”.[60]
[60] Exhibit A5, p 23, para 72.
As noted earlier, ACT has authority to self-accredit in the detailed (6-digit) field of education of Religious Studies (091703), which falls within the narrow (4-digit) field of education Philosophy and Religious Studies (0917) within the broad (2-digit) field of education “Society and Culture” (2-digit code 09). This aligns with the narrow field of research “Religion and Religious Studies” (FoR 2202) under the ANZSRC 2008 classification system and the narrow fields of research “Religious studies” (FoR 5004) and “Theology” (5005) under the ANZSRC 2020.[61]
[61] Exhibit A5, p 23, para 73.
ACT contends that it will satisfy criteria B1.3.16 to B1.3.17 if it undertakes research at the requisite standard in the detailed (6-digit) field of education of Religious Studies (091703); and that this field of education covers the same subject-matter as the narrow field of research “Religion and Religious Studies” (FoR 2202) under ANZSRC 2008 and the narrow fields of research “Religious studies” (FoR 5004) and “Theology” (5005) under ANZSRC 2020.[62]
[62] Exhibit A5, p 23, para 74.
The third important concept relates to criterion B1.3.19(a), which deals with research that is “world standard”. This term is also undefined. ACT says that the proper construction of the term refers to a quality level that is at an international standard. This is opposed to a standard that is “top” of the world standard.[63]
[63] Exhibit A5, p 23-24, para 75.
In support of this contention, ACT says that it is apparent from the Coaldrake Report that the “world standard” terminology is adopted from the ERA process. Under the ERA process, units of evaluation are assigned a rating between 1 and 5 with a rating of 3 indicating “average performance at world standard” and ratings of 4 and 5 being above or well above world standard, respectively. ACT says that it naturally follows that being at world standard means something less than being top of world standard.[64]
[64] Exhibit A5, p 24, para 75.
In his evidence, Professor McLaren agreed that in the context of the ERA process, world standard reflected “what is deemed to be standard at the international level”.[65]
[65] Exhibit A5, p 24, para 75.
Fourth, ACT identifies that criteria B1.3.16 to B1.3.19 are concerned with quality, not volume. The benchmark standards in criterion B1.3.19 are, on their face, directed at the standard or quality of the research produced, rather than the amount or volume of research produced. This is reinforced, ACT contends, by the Revised Explanatory Memorandum to the Higher Education Legislation Amendment (Provider Category Standard and Other Measures) Bill 2020, which emphasises that, “these benchmarks are about quality rather than quantity or volume”[66].
[66] Exhibit A5, p 24, para 76.
Fifth, criterion B1.3.19(a) requires that the research be world standard “measured using best practice indicators”. ACT says that this contemplates the use of certain indicia (i.e., “indicators”) to assess whether a provider’s research output is at world standard and directs attention to those that are most reliable (and whose use would therefore be “best practice”).[67]
[67] Exhibit A5, p 24, para 77.
Sixth, criteria B1.3.16-B1.3.17 require that the provider “undertakes research” at the requisite level. ACT says that this directs attention to, and requires an assessment to be made of, the provider’s research output as a whole (within the relevant field(s) of education). ACT posits that this criteria could not sensibly be construed so that a provider who produces a single research output at or above world standard could be said to “undertake research” at or above world standard.[68]
[68] Exhibit A5, p 24-25, para 78.
Equally, ACT further says that the fact of some research outputs being below world standard would not negate a conclusion that a provider undertakes world standard research. Rather, what is required is a characterisation of the research output as a whole. ACT submits (and I agree) that the approach taken in the ERA process is instructive in this respect. Namely, under the ERA process, for a provider to achieve a rating at a particular point on the scale, the majority of the output from the unit of evaluation is normally expected to meet the standard for that rating point.[69]
[69] Exhibit A5, p 25, para 78.
Seventh, ACT contends that because the 2021 Threshold Standards apply to providers of all types and sizes, they must be construed with sufficient flexibility to provide appropriate standards for providers with a range of sizes, resourcing levels and demographics. They say it would be wrong to treat the circumstances of larger and highly resourced universities as constituting a benchmark that all providers must meet in order to satisfy the Threshold Standards.[70] To my mind, these contentions can easily be accepted, noting that ACT has a specialised focus.
[70] Exhibit A5, p 25, para 79.
Research Determination
Subsection 59A(1) of the TEQSA Act provides that, if TEQSA is considering the Threshold Standards, to the extent they relate to research, in relation to a registered higher education provider that has applied under section 38 to become an Australian University, it “must have regard to the quality of the research undertaken by the entity or provider”. Subsection 59A(2) further provides that, in doing so, TEQSA must have regard to any matters determined in an instrument in force under subsection 59A(7).[71]
[71] Exhibit A5, p 25, para 80.
Furthermore, there is an instrument in force under subsection 59A(7), namely the Research Determination. Thus, ACT says that section 59A requires TEQSA (and therefore the Tribunal) to have regard to the quality of the research undertaken by ACT and, in doing so, to the matters determined in the Research Determination.[72]
[72] Exhibit A5, p 25, para 81.
Clause 5 of the Research Determination stipulates that TEQSA must have regard to the following matters for the purposes of section 59A:[73]
[73] Exhibit A5, p 26, para 82.
(a) results from Excellence in Research for Australia and the Engagement and Impact Assessment or any successor evaluations in Australia, and from comparable national and international research assessment exercises;
(b) the volume of citations, and the quality of the publications in which the research output appeared;
(c) whether research outputs have been peer reviewed and, where peer review has occurred, the nature of the peer review process;
(d) outcomes from the prevailing practices for the measurement of research quality in a particular discipline;
(e) the regulated entity’s governance framework for research including:
(i) its policy framework for research;
(ii) its financial support for the pursuit of research;
(iii) whether and how the governance framework for research is implemented.
(f) the extent to which there is a research community at the regulated entity, including:
i. the number of researchers at the regulated entity and the proportion of time spent by those researchers on research at the regulated entity;
ii. the relationship between individual researchers and the regulated entity;
iii. the extent to which researchers are engaged in the research community at the regulated entity, and with their discipline in the national or international research community where relevant;
iv. the extent to which research at the regulated entity is current or recent; and
v. the supervisory and study environment for research activity at the regulated entity; and
(g) the success of the regulated entity in competitive research grant rounds and in obtaining other direct funding for research.
Evidently, the Research Determination provides indicators to be considered in assessing whether the research requirements in criteria B1.3.16 to B1.3.19 are met. Indeed, the first note under the heading “Research requirements” in the 2021 Threshold Standards contemplates that an instrument such as the Research Determination may be made.[74]
[74] Exhibit A5, p 26-27, para 83.
Approach in reviewing TEQSA’s Decision
I now turn to a threshold issue that has become apparent from the parties’ submissions, regarding the application of section 59A and whether it strictly applies in this case.
The Respondent contends that the provision does not apply because, in the instant case, ACT did not apply under section 38 to become an Australian University; rather, TEQSA considered whether to change ACT’s provider category on its own initiative.[75]
[75] Exhibit A5, p 27, para 84; RSFIC, para 28.
ACT says that this contention involves a strained, and ultimately incorrect, characterisation of the background to the present proceeding. TEQSA made its decision of 1 July 2021 following a submission by ACT dated 23 April 2021, in which ACT sought to be registered as an Australian University. ACT contends that that submission constituted an application under section 38 of the TEQSA Act. It follows that ACT applied under section 38 to change to the Australian University category within the meaning of subsection 59A(1)(b) with the result that the matters in the Research Determination are mandatory considerations.[76]
[76] Exhibit A5, p 27, para 85.

Ultimately, the Respondent does not appear to have pressed the application of section 59A in their closing submissions. In my view, ACT’s submissions on the application of section 59A are duly made out. ACT has further contended that, in any event, even if section 59A does not strictly apply, it is common ground between the parties that it is open to TEQSA, and therefore, the Tribunal, to take the matters in the Research Determination into account to the extent that they are relevant.[77]
[77] Exhibit A5, p 27, para 86.
To my mind, there is a clear approach to be adopted in deciding whether ACT should become an Australian University.
At the outset, I note that TEQSA’s power (and therefore the Tribunal’s power) provided in section 38 involves the exercise of a discretion. That discretion must be exercised “hav[ing] regard to the Threshold Standards”, although compliance with the Threshold Standards is not a pre-requisite to the exercise of the power. The power must also be exercised in compliance with the principles of regulatory necessity, reflecting risk and proportionate regulation.[78]
[78] Exhibit A5, p 28, para 93.
There is no dispute between the parties as to the scope of their dispute in relation to the Threshold Standards. The parties have assisted the Tribunal in this respect by way of extensive written submissions. As such, the only criteria of the Threshold Standards in dispute are criteria B1.3.16-B1.3.19. Accordingly, the key question that I must answer is whether ACT undertakes research at or above world standard, which is to be measured using best practice indicators in the field of education, Society and Culture, in which ACT has authority to self-accredit.[79]
[79] Exhibit A5, p 28, para 94.
Determining this issue requires consideration of ACT’s quality of research output, rather than its quantity. I am required to assess ACT’s quality of research output as a whole. To this end, ACT submits the fact that some of its research may be below world standard should not preclude a conclusion that ACT undertakes research at or above world standard. It will be sufficient that the majority of its research output is at or above world standard.[80]
[80] Exhibit A5, p 28-29, para 95.
The Theshold Standards therefore make it clear that the task before me is qualitative in nature. I am making an assessment of the quality of the research output, rather than considering any quantitative factors with respect to the same. In doing so, I should have regard to the following:[81]
(a)The matters listed in clause 5 of the Research Determination; and
(b)The quality of ACT’s research, being measured against the “best practice indicators”.
[81] Exhibit A5, p 29, para 96.
Overall, ACT submits that the best practice indicator of research quality in the area of religious studies is peer review. ACT contends that the parties’ religious studies and higher education experts were unanimous in this regard, and that this is also reflected in the ERA process, which in 2018 used peer review as the “core indicator” for the field of religious studies. While the ERA process also used other “contextual indicators” in this field (including research income and staff data), those indicators were only used to raise a rating (e.g. from 4 to 5), as opposed to lowering it.[82]
[82] Exhibit A5, p 29, para 97.
WITNESSES
The Tribunal had the benefit of receiving expert witness evidence. These witnesses were both eminent and highly qualified in their respective fields. I would generally characterise the evidence of all witnesses as cogent, clear and, in the main part, of great assistance to me in determining relevant matters.
As an ancillary point, I further note that the evidence of the two groups of witnesses, i.e., the religious experts and the higher education systems experts, was given concurrently, with each group on a separate hearing day. In hearing the evidence in this way, I have had regard to the Tribunal’s relevant guideline: “Persons giving expert and opinion evidence”. My view is that concurrent evidence is appropriate in circumstances where witnesses are dealing with contentious issues of great density, as is the case here. The concurrent delivery of the evidence allowed for exchanges between the witnesses that was of assistance in fleshing out the core issues in this matter. At this juncture, I will note that the Tribunal is grateful to ACT and the Respondent for organising and cooperating to have the witness evidence taken in this way. This greatly assisted me.
My primary task is to determine whether ACT’s research is at world standard. Fundamentally, this requires detailed analysis of, and clear reference to, the witness evidence.
The first group of witnesses were in the field of religious studies. The Tribunal received evidence from the following witnesses in this category:
(a)Professor Mayer, called by ACT;
(b)Professor Mews, called by ACT; and
(c)Professor McLaren, called by the Respondent.
At the outset, I note that of these witnesses, only Professors Mayer and Mews reviewed the ACT’s research publications.[83]
[83] Exhibit A5, p 29, para 99.
The second group of witnesses were higher education systems experts. The Tribunal received evidence from the following witnesses in this category:
(a)Mr Michael Wells, called by ACT;
(b)Professor Flitman, called by ACT;
(c)Professor Siddle, called by the Respondent; and
(d)Professor Hughes-Warrington, called by the Respondent.
Before I turn to answering the substantive questions required in this application, I wish to comment on the evidence given by each of the witnesses in a little more detail and specificity.
ACT’s witnesses
Professor Dalziel
Professor Dalziel is the Dean and CEO of ACT. While his academic background is in psychology, he also has expertise in management, education and religious studies, having formerly been the Dean of Education at Morling College and a Professor at the University of Divinity.[84]
[84] Exhibit A5, p 30, para 100.
Professor Dalziel’s testimony included evidence regarding ACT’s operations. Large parts of that evidence were not the subject of cross-examination. While Professor Dalziel was cross-examined at some length about the notion that ACT imported a quality filter into its definition of research, Professor Dalziel was clear that that was not the case.[85]
[85] Exhibit A5, p 30, para 102.
Professor Omerod
Professor Ormerod is a distinguished scholar in the area of religious studies and also has significant experience in assessing research performance, having been an ERA peer reviewer in religion and religious studies in 2010, 2012 and 2015. Amongst other positions, he was formerly a Professor of Theology at Australian Catholic University where he was a colleague of Professor McLaren. Professor McLaren agreed that Professor Ormerod was a respected scholar and, in Professor McLaren’s experience, a man of integrity.[86]
[86] Exhibit A5, p 30, para 103.
Professor Ormerod commenced employment as the Executive Officer (Research Quality) at ACT in November 2020. In that role, he was a member of ACT’s Research Department and, with Dr Edwina Murphy, classified ACT’s outputs as either scholarship or research.[87]
[87] Exhibit A5, p 31, para 104.
He was not required by the Respondent for cross-examination. ACT contends that his evidence should be accepted.
Emeritus Professors Mayer and Mews
At the outset, I will note the eminent qualifications held by both of these impressive expert witnesses:[88]
(a)Professor Mews holds a PhD in Medieval History (specialising in medieval theology) from the University of Oxford. He was a Professor at the Department of History at Monash University between 2008 and 2021, and served as a Director of the Centre for Religious Studies at Monash from 1995 to 2021, in which role he was responsible for promoting quality assurance within the Centre, and had regular involvement in ARC and ERA assessments since 2010. He was a Member of the AUQA Audit Committee reviewing the Melbourne College of Divinity, prior to it becoming the University of Divinity (UD) in 2012. He is an elected member of the Australian Academy of Humanities in religious studies;
(b)Professor Mayer has 35 years’ experience of research, research strategy and research policy in administration in the fields of religious studies and theology across both international and Australian universities and the Australian private theological education sector. She is an elected member of the Australian Academy of Humanities in religious studies. She was the Dean of Research Strategy for UD between 2020 and 2022. In that role, she was responsible for liaison with TEQSA regarding the standards relating to research in the 2021 Threshold Standards and ERA assessment criteria, as well as developing and implementing research governance and policy changes, and the development of internal research performance and research output benchmarks that both satisfy TEQSA and ARC requirements.
[88] Exhibit A5, p 31-32, para 107.
Professors Mayer and Mews are distinguished scholars in the field of religious studies and also have vast experience in assessing research, including in the context of the ERA process.[89]
[89] Exhibit A5, p 32, para 108.
I should also make mention of the diligence with which Professors Mayer and Mews prepared their evidence. Professor Mews read all of the 93 ACT research publications that comprised the 30% sample[90] provided to him (including 15 books). Similarly, Professor Mayer sampled all of the 93 ACT research publications.[91]
[90] The relevance of the 30% sample with respect to my conclusions about ACT’s research output is addressed below.
[91] Exhibit A5, p 32, para 109.
Generally speaking, Professors Mayer and Mews were of immense assistance to this Tribunal. In answering the questions put to them in examination/cross-examination, they gave responses which were, in my view, objective, considered and clear.
Mr Wells and Professor Flitman
Mr Wells and Professor Flitman gave evidence that addressed the peer review exercise undertaken by Professors Mayer and Mews. ACT characterises their evidence as corroborating Professors Mayer and Mews’ conclusions by way of a broader assessment of ACT’s operations and research performance.[92]
[92] Exhibit A5, p 32, para 111.
Mr Wells and Professor Flitman were well-qualified to give such evidence given their considerable expertise in higher education and research performance:[93]
(a)Mr Wells is a former Commissioner of TEQSA who was involved (among other things) in the development of the Threshold Standards and TEQSA’s regulatory risk framework and has since been engaged by TEQSA in an advisory capacity. He was also the senior executive most directly responsible for managing quality assurance processes, reporting and advice at the University of Melbourne between 2004 and 2011; and
(b)Professor Flitman is a former Deputy Vice Chancellor (Research) at Swinburne University, including nine months as Acting Vice Chancellor, and Dean of Science and Technology at Deakin University. He has undertaken independent reviews of research performance of Torrens University against pre-agreed targets set by TEQSA, and reviews of research ecosystems, organisational reviews of research support, institution and research centre performance and strategy development for a number of Australian universities.
[93] Exhibit A5, p 32-33, para 112.
Overall, as with Professors Mayer and Mews, both Mr Wells and Professor FIitman were witnesses of credit who assisted the Tribunal with cogent and carefully considered evidence.
With respect to the cross-examination of these witnesses, it was, to a large extent, focused on the bibliometric analysis contained in Mr Wells and Professor Flitman’s first report.[94]
Respondent’s witnesses
[94] Exhibit A5, p 33, para 114. Succinctly, the Respondent has posited that ACT’s reliance on bibliometrics as an area of concern. Bibliometrics are addressed below.
Emeritus Professor McLaren
Professor McLaren presented as a distinguished academic and in the main gave clear evidence. To my mind, he has distinguished expertise in the field of religious studies.
An obvious feature that contextualises his evidence, and one that has been the source of argument between ACT and the Respondent, is that he did not read or assess the publications comprising the 30% sample of ACT’s research output provided to Professors Mayer and Mews. He only reviewed publications that were not included in the 30% sample, namely the publications from 2021 that had been classified as scholarship according to ACT’s 2021 Research and Scholarship Report.[95]
[95] Exhibit A5, p 34, para 119.
ACT contends that, consequently, Professor McLaren’s evidence was too narrow in compass to be of assistance in this matter.[96]
[96] Exhibit A5, p 34, para 118.
Professor McLaren opined that ACT had misclassified research publications as scholarship; that the correct classification would “significantly increase” the number of research publications; that such an increase “significantly reduces the overall quality of the publication profile for the year”; and that “with the appropriate reclassification the majority of ACT publications do not meet the benchmark of ‘world standard’.”[97]
[97] Exhibit A5, p 34, para 121.
I agree with ACT that such evidence represents a relatively significant leap in logic. In reaching this conclusion, Professor McLaren, according to ACT:[98]
(a)did not identify which of the publications referred to in ACT’s 2021 Research and Scholarship Report had in fact been misclassified;
(b)did not explain why he considered that particular publications were properly classified as research rather than scholarship;
(c)did not review any ACT publications other than those listed as scholarship in the 2021 Research and Scholarship Report (such as those from 2016-2020, or those from 2021 that were classified as research); and
(d)according to ACT, is overall simply not in a position to say whether the majority of ACT’s research publications meet the benchmark of world standard.
[98] Exhibit A5, p 34-35, para 122.
The Respondent contends that such criticism of Professor McLaren is unfounded and a mischaracterisation of the Respondent’s role.[99]
[99] Exhibit R2, p 7, para 23.
The Respondent says that it is not their role to undertake their own review of ACT’s research output. The onus is on ACT as the party seeking a change of provider category to provide sufficient evidence to demonstrate that it meets the relevant requirements of the Threshold Standards. Accordingly, the Respondent says it was entirely appropriate for Professor McLaren to consider ACT’s evidence in the manner that he did, rather than him as “choosing” not to undertake a comprehensive review. He was not asked to do so, nor was that his role in the context of the present proceedings.[100]
[100] Exhibit R2, p 7, para 24.
The Respondent further argues that it is also a mischaracterisation to say that Professor McLaren only reviewed publications that were not included in the 30% sample of research output provided to Professors Mayer and Mews. In cross-examination, Professor McLaren emphasised that, in expressing his opinion, he was not purporting to undertake a comprehensive review of ACT’s research output. Rather, he was seeking to verify what he saw as a significant limitation of ACT’s overall approach to the classification of research.[101]
[101] Exhibit R2, p 7, 25.
Respectfully, the Respondent’s position is entirely inadequate. It does nothing to address the heart of what ACT is contending. The issue with regards to Professor McLaren’s evidence is how such a stark conclusion can be reached - i.e., that there was a “significant limitation” in ACT’s overall approach to classifying research - in circumstances where the 30% was not even read, much less properly assessed or considered.
The foregoing point is further apparent when the Respondent’s role is given closer attention. As correctly highlighted by ACT, the Respondent is not adopting a neutral position in this application. They are making a positive contention that the decision under review should be affirmed.[102] In preparing to articulate this position, the Respondent requested Professor McLaren to opine on whether ACT’s research met the benchmark standard in criterion B1.3.19. The Respondent sought Professor McLaren’s review of ACT’s research output and opinion of the same.[103] In his report, Professor McLaren expressed opinions about the overall quality of ACT’s research.[104]
[102] Exhibit A6, p 15, para 37-38.
[103] Exhibit A6, p 15, para 39.
[104] Exhibit A6, p 16, para 41.
For all these reasons, the Respondent’s objection is not properly made out. It appears the Respondent wants to have its cake and eat it too, insofar as Professor McLaren’s evidence is concerned. It cannot stand that the Respondent makes a positive assertion regarding ACT’s research output, while at the same time contending that the proper interrogation of where that assertion stems from should be considered unfair or untoward.
Professor Siddle
Professor Siddle’s academic background is in psychology.[105]
[105] Exhibit A5, p 35, para 125.
At the hearing, he acknowledged that he is not an expert in theology or religious studies, and was not in a position to dispute the evidence of Professors Mayer and Mews. Thus, he accepted that ACT was producing research that was contributing to new knowledge and that such research was at world standard. He also concluded that ACT has supporting mechanisms in place to ensure continuity and consistency in research at the current level, and has an appropriate supervisory and study environment.[106]
[106] Exhibit A5, p 35-36, para 125.
Despite this evidence, Professor Siddle concluded that ACT’s research activities were “overly concentrated” and lacking in “scale”.[107]
[107] Exhibit A5, p 36, para 126.
With respect to Professor Siddle’s conclusion, ACT contends that Professor Siddle was at times inconsistent in his evidence:[108]
(a)as Professor Siddle acknowledged in cross-examination (but had not made clear in his reports), there is no legislative requirement that Australian Universities produce research at a particular volume or achieve particular levels of productivity or concentration of research effort;
(b)Professor Siddle’s view of ACT’s research output was therefore based on what he subjectively expected a university to produce. Professor Siddle summarised his opinion as being that, “the volume of research being produced by ACT was not what I expected of an Australian university”; and
(c)even assuming that such expectations were appropriate, Professor Siddle’s concerns that his expectations were not met failed to have regard to all of the available data or involved inconsistencies. Notably, in his second report, Professor Siddle pointed to the fact that ACT’s weighted publication output per year per staff full-time equivalent (FTE) was from 1.14 to 1.44 over 2017-2021. In cross-examination he stated that “In my experience, that productivity is low”. Yet in his first report, he had stated that a weighted publication score of 1.0 per staff FTE would be consistent with what is expected of an institution with research activity at minimum scale. When asked about these apparently inconsistent positions, he was unable to reconcile them.
[108] Exhibit A5, p 36-37, para 127.
The Respondent contends that ACT’s criticisms above of Professor Siddle’s evidence are unjustified.[109] In responding to such criticism, the Respondent makes several key points.
[109] Exhibit R2, p 8, para 28.
First, Professor Siddle made a number of concessions about the role of volume and concentration in research output under the regulatory regime, but maintained that ACT’s productivity would place it at or towards the very bottom of the existing universities. Meanwhile, ACT’s research concentration would, if he were the head of ACT, “keep me awake at night” because of the risk it posed to ACT’s research profile.[110]
[110] Exhibit R2, p 8, para 29.

Second, although ACT seeks to dismiss Professor Siddle’s views as simply subjective opinion, such a characterisation ignores the objective factual basis for the concerns identified by Professor Siddle. It also fails to acknowledge that, as an eminent and experienced expert in university governance and administration (and one of the authors of the 2015 Threshold Standards), Professor Siddle’s opinion as to the expectations of an Australian university ought to be entitled to significant weight.[111]
[111] Exhibit R2, p 8, para 30.
Third, the Respondent does not accept that Professor Siddle’s views involved inconsistencies insofar as the weighted publication output is concerned.[112]
[112] Exhibit R2, p 8, para 31.
Fourth, the Respondent takes issue with ACT’s contention that, when asked about the apparent inconsistency, Professor Siddle “did not suggest they could be reconciled”. The Respondent notes that in fact it was never put to Professor Siddle that the opinions were in any way inconsistent, and therefore needing to be reconciled.[113]
[113] Exhibit R2, p 8, para 32.
In my view, the key issue with Professor Siddle’s evidence is whether there is an inconsistency with his first report in relation to this matter and the oral evidence. On one hand, his oral evidence was that ACT’s weighted publication output was “low”; while on the other hand in his first report he opined that an institution with research activity, at minimum scale, would be expected to have a weighted publication score of 1.0 per staff FTE.[114]
[114] Exhibit A6, p 16, para 44.
To my mind, it is context that is important here. Is the statement that ACT’s productivity is “low” intended to convey that it is below the minimum level expected of a university?[115] It seems to me that this is the only way the apparent inconsistency in Professor Siddle’s testimony can be reconciled, given Professor Siddle’s evidence that 1.0 is the minimal requirement. With that in mind, I accept ACT’s view that this would suggest that the meaning of “low” in this context is “above but at the lower end” of the minimal scale.[116]
[115] Exhibit A6, p 16-17, para 45.
[116] Exhibit A6, p 16-17, para 45.
This ultimately begs the question, to what extent was ACT not performing as Professor Siddle would, in his own subjective view, expect of an Australian University? If ACT is scoring higher than average with respect to the minimal requirements of existing universities, it would appear that ACT has in actual fact achieved a somewhat remarkable feat in this regard, given that, as ACT aptly points out, it does not yet enjoy the status of a university and the funding that comes with such a status.[117]
[117] Exhibit A6, p 16-17, para 45.
Professor Hughes-Warrington
ACT contends that Professor Hughes-Warrington’s evidence was problematic in a number of respects.[118]
[118] Exhibit A5, p 37, para 128.
First, ACT submits that much of the material in Professor Hughes-Warrington’s reports fails to engage with the peer review processes undertaken by Professors Mayer and Mews. ACT points out that Professor Hughes-Warrington had not cited the reports of Professors Mayer or Mews in preparing her first report. Professor Hughes-Warrington prepared a second report to address those reports. Professor Hughes-Warrington did this by adding to her first report a new section 12 headed “Response to the Expert Reports of Emeritus Professor Mayer, and Emeritus Professor Mews”.[119]
[119] Exhibit A5, p 37, para 129.
Second, ACT posits that Professor Hughes-Warrington’s reports are based in no small part on an alleged absence of evidence about standards that are not in issue in this proceeding. Professor Hughes-Warrington states that her assessment is “based upon the consideration of all sections relating to research in the [Threshold Standards]” and expressly references standards 4.1.1 and 6.3.2.g in Part A of the Threshold Standards. In my view, this is not relevant to the Tribunal’s consideration in circumstances where the only issues in dispute concern criteria B1.3.16-B1.3.19. Given that Professor Hughes-Warrington’s reports do not address the criteria in issue, ACT invites me to proceed on the basis that these standards are satisfied.[120]
[120] Exhibit A5, p 37, para 131.
ACT has raised further concerns with Professor Hughes-Warrington’s oral evidence, which I will now consider.
The key thrust of Professor Hughes-Warrington’s oral evidence concerned differences between ACT’s peer review exercise and the ERA process. ACT argues that she had difficulty in distinguishing between form and substance, often elevated the former over the latter and, in doing so, at times lacked objectivity.[121]
[121] Exhibit A5, p 38, para 132.
ERA is a national research assessment exercise conducted by the ARC across all areas of research, involving many people communicating through an online platform known as SEER. In light of this, ACT submits that it is “simply not possible” for ACT fully to replicate that process when:[122]
(a)as a non-university, it is not eligible to participate in that process; and
(b)the context is proceedings in the Tribunal and the decision-maker is the Tribunal rather than the ARC or a Research Evaluation Committee (REC) convened by the ARC.
[122] Exhibit A5, p 38, para 133.
ACT further contends that it was also unnecessary for it to precisely replicate the ERA process, because the ERA process itself is not an indicator of the quality of a provider’s research. ACT says the key indicator, which is best practice in the field of religious studies, used in the ERA process and also provided for by clause 5(c) of the Research Determination, is peer review.[123]
[123] Exhibit A5, p 38, para 134.
Because of this, ACT submits that Professor Hughes-Warrington was asking the wrong question by focussing on whether there were differences between the peer review process conducted by Professors Mayer and Mews and the ERA process. ACT says the issue is not whether there was any difference between the ERA process and that adopted here but whether such a departure was significant in the sense of precluding a conclusion that ACT undertakes research at the requisite standard.[124]
[124] Exhibit A5, p 38, para 135.
During cross-examination, Professor Hughes-Warrington was asked to focus on issues of substance rather than form. ACT highlights a number of the Professor’s answers that they say are unsatisfactory:[125]
(a)Despite not referring to this in her reports, Professor Hughes-Warrington introduced and then repeatedly emphasised the notion that ACT had not submitted a 2-page explanatory statement of the kind submitted in the ERA process; and
(b)Professor Hughes-Warrington then stated that the explanatory statement was a quality indicator used in the ERA process, and further suggested that a failure to provide the explanatory statement would result in a unit of evaluation not being rated.
[125] Exhibit A5, p 38-39, para 136-137.
ACT, correctly in my view, points out that this explanation was unsatisfactory on a multitude of levels:[126]
(a)First, it is incorrect that a 2-page explanatory statement is, in and of itself, a quality indicator used in the ERA process. It is clear from the 2018 ERA handbooks that the 2-page explanatory statement is not itself an indicator, although it might contain information about the applicable indicators;
(b)Second, the suggestion that a failure to provide the explanatory statement would result in a unit of evaluation not being rated was far-fetched. The 2018 ERA Submission Guidelines record that the consequence of providing a non-complying explanatory statement is simply that “ARC staff will remove it and request the institution submit a corrected version”. Ultimately, the ARC has a discretion as to how to deal with the provision of incomplete information. When Professor Hughes-Warrington was pressed on whether it was likely that failure to provide a 2-page explanatory statement would result in a unit of evaluation not being rated, ACT says she evaded the question by stating, “I’m not - I’m not being asked what’s likely; I’m being asked what’s the threshold standard.”
(c)Third, Professor Hughes-Warrington’s evidence ignored that ACT has submitted a significant body of information - far more than could be contained in a 2-page explanatory statement - to the Tribunal through the affidavits of Professors Dalziel and Ormerod.
[126] Exhibit A5, p 39, para 138.
Relevantly, I note that Mr Wells and Professor Flitman both opined that the existence or absence of a 2-page explanatory statement was immaterial to the Tribunal’s consideration having regard to the material that the ACT has provided.[127]
[127] Exhibit A5, p 40, para 139.
For their part, the Respondent takes issue with ACT’s assertion that Professor Hughes-Warrington had “difficulty distinguishing between form and substance”, stating that this contention is without foundation.[128]
[128] Exhibit R2, p 8-9, para 33.
The Respondent says that the whole tenor of Professor Hughes-Warrington’s evidence was that, in the assessment of research quality in accordance with best practice indicators such as the ERA process, substance cannot be separated from form. That is because it is only when that assessment is undertaken in the context of a clear, objective and robust process that the result will be fair and reliable for all participants.[129]
[129] Exhibit R2, p 9, para 34.
Accordingly, the Respondent argues that it is wrong to suggest that Professor Hughes-Warrington was “asking the wrong question” by focussing on the differences between the process undertaken by Professors Mews and Mayer and the ERA process. On the contrary, the Respondent says that that is the right question, having regard to both the requirement to demonstrate research at world standard “using best practice indicators”, as well as the rigor that all of the experts accepted was embodied in the ERA process.[130]
[130] Exhibit R2, p 9, para 35.
The Respondent’s argument that substance and form are impossible to be separated is, in my view, not made out. If that is the case, why then (as ACT also identifies) would it be that the ERA process did not need to be strictly followed?[131] If it was the case that form was of superior importance, as Professor Hughes-Warrington appeared to suggest, then the ERA process would be strictly prescriptive in nature, rather than a framework to be followed. This very concession was made by the Respondent at the hearing:[132]
… we’re not suggesting that any departure from the ERA process, no matter how small, means that the research can’t satisfy this standard. We say it’s important to look at what part of that process hasn’t been complied with and think about how significant that is …
…
in this particular discipline the peer review of a kind undertaken in the ERA process, as far as possible, that is best practice…
[131] Exhibit A6, p 17, para 46.
[132] Exhibit A6, p 13, para 32.
Ultimately, despite the Respondent’s concessions, the issue with Professor Hughes-Warrington’s evidence is the erroneous focus on formative differences between the ERA process and ACT’s peer review assessment process. I do not accept that a failure to strictly follow the ERA process results in ACT’s peer review assessment process being properly characterised as something other than best practice.
DOES ACT MEET THE CRITERIA FOR THE “AUSTRALIAN UNIVERSITY” STANDARD?
The central issue I must consider is whether ACT meets the criteria for the Australian University category set out in Part B1.3 of the Threshold Standards.
In doing so, I must have regard to this criterion, although I note that it may not determinative.[133]
[133] TEQSA Act, s 38(1A), (2).
All courses currently offered by ACT are within the detailed field of education of Religious Studies, for which ACT has self-accrediting authority under the TEQSA Act.[134]
[134] ASFIC, p 12, para 11.
Within the field of Religious Studies, ACT has three academic Departments, incorporating ten main Fields of Study. The Departments are:[135]
(a)the Department of Bible and Languages, covering Fields in New Testament, Old Testament and Languages;
(b)the Department of Christian Thought and History, covering fields of Church History, Integrative Studies, Philosophy and Ethics and Theology; and
(c)the Department of Ministry and Practice, covering fields of Developmental and Educational Ministry, Evangelism and Missiology, and Pastoral and Church-focussed Ministry.
[135] ASFIC, p 12, para 11(a)-(c).
There are 16 operative Australian University criteria.[136] However, in this matter, only two criteria remain in issue (B1.3.16/B1.3.17 of the Threshold Standards):[137]
(a)Whether ACT is currently undertaking research at or above the benchmark standard of “world standard” that leads to the creation of new knowledge and original creative endeavour; and/or
(b)whether ACT will undertake such research within a period of at least 10 years.
[136] B1.3 of the Threshold Standards lists 19 items. However, ACT highlights that points 14 and 19 are definitional, and point 18 is an exception that is not relevant in the instant matter (ASFIC, p 11).
[137] ASFIC, p 11, para 8.
I will now address each of these in turn.
I have already noted that the Respondent disagrees with ACT’s interpretation of B1.3.16/B1.3.17 of the Threshold Standards, as they contend that the standard has to be met at the time the entity is an Australian University, as opposed to within 10 years. Ultimately, it appears that ACT are relying on this second criteria as an alternate argument. Accordingly, I will first address the primary issue of whether ACT’s research is “currently” at or above the “world standard” benchmark.
IS ACT’S RESEARCH AT OR ABOVE “WORLD STANDARD” BENCHMARK?
ACT contends that it currently undertakes research at or above world standard in satisfaction of criteria B1.3.16-B1.3.17 of the Threshold Standards.[138]
[138] Exhibit A5, p 40, para 141.
ACT’s submission comprises of the following three primary contentions:[139]
(a)First, the peer review exercise undertaken by Professor Mayer and Mews, in which they concluded that ACT’s research was at world standard, was sufficient and appropriate;
(b)Second, there are further “additional factors” that ACT says supports its conclusion that it currently undertakes research at or above world standard; and
(c)Third, that the Respondent’s submissions do not, on balance, undermine ACT’s position.
[139] Exhibit A5, p 40, para 142.
First primary contention - peer review exercise
ACT contends that the best practice indicator of research quality in the area of religious studies is peer review. Clause 5(c) of the Research Determination requires regard to be had to “whether research outputs have been peer reviewed and, where peer review has occurred, the nature of the peer review process”.[140]
[140] Exhibit A5, p 40-41, para 143.
Accordingly, ACT says they engaged Professors Mayer and Mews to review its research outputs. ACT says, and I agree, that Professors Mayer and Mews were distinguished academics in the areas of religious studies and theology and well-qualified to undertake this exercise.[141]
[141] Exhibit A5, p 41, para 144.
ACT’s peer review process output involved the following:[142]
[142] Exhibit A5, p 41-42, para 145.
(a)ACT reviewed its publications during a 6-year period, from 2016-2021, to identify those that were research (as distinct from another kind of scholarship, sometimes described internally at ACT as “confessional scholarship”). This exercise was undertaken by two ACT staff who are themselves distinguished scholars, namely Professor Ormerod and Dr Edwina Murphy. This exercise identified 317 research outputs over the period 2016 to 2021;
(b)ACT then identified a sample of 30% of the research outputs, which they say was representative in that it included at least one publication from every college and publications across different sub-disciplines within the field of religious studies;
(c)ACT then provided to Professors Mayer and Mews (inter alia):
(i)Professor Dalziel’s Third Affidavit;
(ii)a table listing ACT’s 317 research publications during the period 2016-2021;
(iii)a list and the full text of a 30% sample of those publications during the period 2016-2021, comprising 93 research publications; and
(d)ACT asked Professors Mayer and Mews (inter alia) what ERA rank they would give the ACT based on the methods of the most recent ERA exercise for religious studies.
It is important to note, as pointed out by ACT, that the above process undertaken closely mirrored the ERA peer review process in several key respects. These include:[143]
(a)the 2018 ERA process assessed the participating institutions’ research over a 6-year period;
(b)participating institutions were required to identify and ensure that the outputs submitted for evaluation met the definition of research; and
(c)for peer review disciplines such as religious studies:
(i)participating institutions were required to nominate a 30% sample from a representative sample of the institution’s eligible researchers; and
(ii)that sample was then provided to the members of the REC assigned to the unit of evaluation and to at least two peer reviewers, who were asked to read a target number of outputs (usually around 10 and not more than 25) and write a report to the REC.
[143] Exhibit A5, p 42, para 146.
Furthermore, it appears that both Professors Mews and Mayer were extremely detailed and comprehensive in their approach.
Professor Mews read all of the 93 ACT research publications that comprised the 30% sample provided to him. He also reviewed the titles and places of publication of the remaining 70% to check that the 30% sample was representative.[144]
[144] Exhibit A5, p 43, para 147.
Professor Mayer sampled all of the 93 ACT research publications, and also reviewed the topics and places of publication of the other publications not included in the 30% sample.[145]
[145] Exhibit A5, p 43, para 148.
Both Professor Mews and Professor Mayer concluded that the sample would have been assessed at the ERA 3 (i.e., “world standard”) level in the ERA.[146]
[146] Exhibit A5, p 43, para 149.
In particular, Professor Mews found:[147]
(a)of the 15 books reviewed in detail, Professor Mews was “struck by their intellectual range and authority (certainly of world standard)”;
(b)as to the book chapters, he was “impressed by the frequency of publication with UK, US and continental houses of the highest calibre… I do not personally know these ACT scholars, but I am impressed with these publications”;
(c)all journals submitted for evaluation would qualify for ERA 3 standard; and
(d)overall, he was “confident that these submissions fully merit evaluation of research activity at ERA 3 (World Standard) level” and stated that, “in my judgment the ACT outputs provided to me are of such a consistent quality, that they certainly merit ACT being classified as an institution that produces outputs worthy of World Standard ERA 3 classification”. At the hearing, this was confirmed in Professor Mews’ oral evidence, when he confirmed that the [classification] was “strongly a 3” and that he was “genuinely impressed”.
[147] Exhibit A5, p 43-44, para 150.
Meanwhile, Professor Mayer concluded that:[148]
(a)the sample on average is of world standard (ERA 3), and the majority of the sample can be said to strongly meet that requirement;
(b)in only one instance did the sample “barely meet” world standard and could in fact be assessed at below world standard;
(c)one other instance might have properly been classed as scholarship rather than research; and
(d)overall, the sample, on average, is of world standard in terms of research quality. Had ACT been assessed under the now-suspended ERA 2023 round, it would have, on the basis of the evidence presented, achieved a score of 3.[149]
[148] Exhibit A5, p 44, para 151.
[149] The score of “3” in this context being ERA 3 (at world standard).

In light of the above, the Respondent contends that ERA is a more structured, detailed and holistic assessment than the process adopted by ACT. The Respondent points to the evidence of the higher education experts, who appeared to agree that ERA is a more structured, detailed and holistic assessment than the review undertaken by Professors Mews and Mayer. Professor Flitman agreed ERA is a multi-stage process involving multiple people from multiple disciplines, which is broader than simply looking at the peer-review sample and working out a score.[243] Professor Siddle also emphasised how:[244]
the quite elaborate, elegant procedures that have been set up for ERA have been designed to get a genuine insight into the quality of research across different fields of research. They’ve been designed to provide more information than just a peer assessment of the outputs.
[243] Exhibit R2, p 18, para 55.
[244] Exhibit R2, p 18, para 55.
Further, the Respondent drew my attention that both Professor Hughes-Warrington and Professor Siddle highlighted the importance of the way in which the ERA process is guided by the application of transparent, consistent rules to ensure an even playing field in the consideration of whether an institution meets the relevant standard.[245]
[245] Exhibit R2, p 18, para 56.
Given the above, the Respondent posits that it is impossible to compare the outcome of the ERA process with the assessment undertaken by Professors Mews and Mayer. Professor McLaren emphasised how they are “two quite contradictory - or quite contrary approaches” and could not readily be compared. He also stated that the process undertaken by ACT “cannot substitute [for] the ERA process”.[246]
[246] Exhibit R2, p 18, para 57.
Professor Mayer was unable to comment on the difference a closer adherence to the ERA process might have made, stating: “I can only comment on what we were asked to do as expert witnesses by - you know, in relation to this matter”. Professor Mews also acknowledged that the “processes are necessarily different in that you are in a different space of assessment”, although he thought that they were not substantive enough to raise a question about “the principles that were followed in that process”. However, he conceded that the ERA process was “not my area of expertise”.[247]
[247] Exhibit R2, p 18-19, para 58.
The Respondent has raised extensive submissions on the apparent differences between the ERA process and the process adopted by ACT. In properly contextualising this issue to the question at hand, of whether ACT meets the requisite standard of “world standard”, two matters require further attention:
(a)The extent of the relevance of the ERA process itself; and
(b)The extent to which ACT’s approach in fact differed from the ERA process.
ACT submits that the ERA process itself is not an indicator of the quality of a provider’s research. Clause 5(a) of the Research Determination provides that results from ERA are an indicator (not the ERA process itself) and there are no such results available to be considered in this case. The key indicator, which is best practice in the field of religious studies, used in the ERA process and also provided for by cl 5(c) of the Research Determination, is peer review.[248]
[248] Exhibit A5, p 69, para 249.
ACT says that it is not necessary for a non-university, such as ACT, and who is not eligible to participate in the ERA process, to precisely replicate that process to demonstrate compliance with criteria B1.3.16 to B1.3.19. What matters, according to ACT, is that their peer review exercise is sufficiently reliable to support a conclusion by the Tribunal that ACT undertakes research at the requisite standard.[249]
[249] Exhibit A5, p 69, para 250.
Consequently, as the Respondent ultimately acknowledged, the issue is not whether there was any departure from the ERA process but whether such a departure was significant; i.e., whether it precludes a conclusion that ACT undertakes research at the requisite standard.[250]
[250] Exhibit A5, p 69, para 251.
With this in mind, ACT submits that the differences between ACT’s peer review process and the ERA process do not undermine the conclusion that ACT undertakes research at world standard. In fact, ACT says that the peer review exercise undertaken by ACT is in several respects more rigorous than that undertaken during an ERA process.[251]
[251] Exhibit A5, p 69, para 252.
ACT has drawn a clear comparison between their process and the ERA process. ACT says it is apparent from the ERA process that in peer review disciplines such as religious studies its key characteristics are, as a matter of substance, as follows:[252]
[252] Exhibit A6, p 24-25, para 73.
(a)Peer review - the core indicator is peer review. While other contextual indicators are relevant, they are used only to raise a rating, not to lower it;
(b)As to “what is reviewed”, it is:
(i)research (not scholarship that is not research);
(ii)a substantial, representative proportion of that research - evident from the requirement that institutions nominate a 30% representative sample for peer review;
(iii)as nominated by the institution - participating institutions both identify their research publications and nominate the 30% sample for review;
(iv)over a substantial period of time - evident from the 6-year reference period; and
(v)that has a nexus to the institution’s current or recent staff - evident from the rules concerning staff affiliation, particularly the requirement for eligible researchers to have an affiliation with the institution on the census date.
(c)As to who undertakes the review:
(i)there is more than one reviewer - evident from the requirement that there be at least two peer reviewers with REC members also reviewing a sample to cover any gaps in the peer review;
(ii)the reviewers have expertise in the discipline; and
(iii)the reviewers must be independent of the institution whose research they are reviewing - evident from the rules concerning conflicts of interest;
(d)As to the test applied:
(i)the ultimate question is how the research compares to “world standard”;
(ii)this measures research quality (not scale or productivity); and
(iii)it involves a characterisation of the outputs as a whole - evident from the fact that it normally suffices that the majority of the output meets the standard for the rating point.
In the instant case, ACT says the peer review exercise undertaken by Professors Mayer and Mews replicated the requirements:[253]
[253] Exhibit A6, p 25-26, para 74.
(a)First, plainly, Professors Mayer and Mews conducted a peer review;
(b)Second, as to what Professors Mayer and Mews reviewed:
(i)ACT identified its research outputs over a 6-year period and nominated a 30% sample for peer review;
(ii)the publications that ACT identified as comprising its research output were almost entirely comprised of publications by staff that had a current or recent association with ACT. Of ACT’s 317 research publications, only 24 were published by staff who did not have a current association with ACT and only one of those was included in the 30% sample; and
(iii)Professors Mayer and Mews undertook a detailed review of the 30% sample;
(c)Third, as to who undertook the review exercise:
(i)there was more than one reviewer;
(ii)Professors Mayer and Mews are experts in the field; and
(iii)Professors Mayer and Mews are independent of ACT.
(d)Fourth, Professors Mayer and Mews evidently applied the correct “world standard” test from the ERA process.
ACT says, and I agree, that there is no merit in the Respondent’s contention that ACT’s peer review exercise was insufficiently close to that in ERA. To the contrary, ACT says, and I agree, that the exercise undertaken replicated the substance or the essential elements of the peer review process used in ERA.[254]
[254] Exhibit A6, p 26, para 75.
Overall, ACT contends, and I accept, that this conclusion is supported by the expert evidence. Professors Mayer and Mews both gave evidence that the exercise undertaken was consistent with ERA and that they did not have any concerns about its reliability. Further, as ACT points out, Professor Flitman and Mr Wells disagreed that ERA was a more detailed and comprehensive assessment than that undertaken by ACT and gave evidence to the effect that ACT’s process was in fact more detailed in many respects.[255]
[255] Exhibit A6, p 26-27, para 76.
Utility of benchmarking and bibliometrics
The Respondent correctly notes that ACT has acknowledged that bibliometrics and benchmarking are not “best practice indicators” of world standard research, and that ACT seeks to rely on the bibliometric analysis of Mr Wells and Professor Flitman, and the benchmarking evidence put forward by Professor Dalziel, as a “supplementary form of assessment”.[256]
[256] Exhibit R2, p 19, para 59.
The Respondent contends that the evidence adduced about the bibliometrics and benchmarking exercises should not be given any weight at all.[257]
[257] Exhibit R2, p 19, para 60.
I have already dealt with the issue of benchmarking above. In so doing, I have found, and re-emphasise again, that I have no difficulty in accepting the role of benchmarking, in circumstances where ACT has not, to my mind, overstated its role as ancillary/supplementary in nature.
I now turn to deal with the Respondent’s contentions around bibliometrics.
The Respondent says that the bibliometric analysis contained in the opinions of Mr Wells and Professor Flitman contains the following fundamental difficulties:[258]
(a)First, all of the experts (save for Mr Wells and Professor Flitman) agreed that bibliometrics had no role to play in the context of peer review, particularly in the humanities. Professor Mayer described it as “a flawed technique” that was “not relevant in a peer review discipline.” The Respondent characterised Professor McLaren as being equally emphatic. Professor Mews said he would be “very cautious about it” while Professor Siddle said he didn’t see any role for it in humanities fields. Professor Hughes-Warrington stated: “As a matter of principle, they are just not appropriate at all for the consideration of peer reviewed disciplines” and explained that it was unfair to rely on bibliometrics in the humanities because those fields primarily produced books, and those are not captured by bibliometric databases;
(b)Second, the specific analysis conducted by Mr Wells and Professor Flitman had, according to the Respondent, on Professor Flitman’s own evidence, significant limitations. First, it did not include two out of the three main categories of research output considered as part of the ERA process (books and book chapters). Second, the Respondent says it did not speak to the quality of individual outputs published by ACT (because it was undertaken at the journal level). Finally, it did not include all of the journals in which ACT publishes (because only around half of them were included in the relevant databases), and included journals that would not be eligible for inclusion in an ERA assessment (because they were not on the ERA approved list); and
(c)Third, the Respondent says that the above noted limitations are so significant that it renders the bibliometrics analysis as entirely unhelpful. The Respondent points out that Professor Siddle explained: “I don’t actually agree with the proposition that measurement reduces uncertainty. It’s the information is what is – what reduces uncertainty.” As such, the Respondent submits that if information is incomplete, indirect and unreliable, it only serves to increase the uncertainty associated with the use that information, and is apt to create a misleading impression of the true position.
[258] Exhibit R2, p 19-20, para 61.
ACT advances a similar position with respect to bibliometrics as it did to benchmarking, namely that despite the limitations associated with bibliometrics, it is a valuable supplementary form of assessment that provides some objective data to inform the Tribunal’s consideration of the matters in cl 5(b) of the Research Determination.[259]
[259] Exhibit A5, p 81, para 296.
On the material before me, I do not have any difficulty accepting ACT’s position on the role that bibliometrics plays, again noting ACT has not overstated its role, as a purely ancillary/supplementary factor. They have not based their argument on bibliometrics being a “best practice indicator”. ACT is proffering, correctly in my view, that benchmarking and bibliometrics acts to supplement other evidence, and ultimately reinforces it.[260]
[260] Exhibit A5, p 81, para 297.
Summary of Respondent concerns
As noted above, the Respondent’s primary concerns are with respect to the conduct of the peer review exercise and whether the ERA process was sufficiently followed.
ACT’s departures from the ERA process were not substantial or material enough to be fatal to a finding that their research output was at “world standard”. I have already found that the ERA process is not a mechanism that is strictly prescriptive. The fact that ACT deviated from the same during the peer review process is not, in this case, antonymic to ACT satisfying the threshold of “world standard”. Moreover, I have found the peer review process undertaken to be satisfactory.
Given that ACT has adequately responded to the Respondent’s concerns, this ultimately supports a finding that ACT’s research output is at “world standard”.
Does ACT currently undertake research at world standard?
I am required to answer two questions in determining this application. The first is whether ACT meets the criteria for the Australian University category set out in Part B1.3 of the Theshold Standards. The second is whether, regardless of how I answer the first question, I should exercise my discretion to change ACT’s category to Australian University. The primary contention ACT has advanced with respect to whether they meet the criteria for Australian University is that they currently have a research output that is at the required “world standard”.
Based on the evidence before me, I am satisfied (and find) that ACT is currently undertaking research at or above “world standard”. In line with the three primary contentions ACT has advanced in support of this, I base my finding on the following points:
(a)The peer-review exercise undertaken by Professors Mews and Mayer was sufficient and appropriate;
(b)The additional factors proffered by ACT are, overall, supportive of a finding that ACT is conducting research at or above “world standard”; and
(c)The Respondent’s objections, though appropriate to some extent, do not weigh strongly enough to upend a finding that ACT is conducting research at or above “world standard”.
ALTERNATIVE ARGUMENT - WHETHER ACT UNDERTAKES, OR WILL UNDERTAKE, SUCH RESEARCH WITHIN 10-YEAR PERIOD
Given my finding that ACT presently meets criterion B1.3.16-B1.3.19, that is, that it currently undertakes research at or above “world standard”, I do not consider it necessary to address ACT’s alternative argument that it satisfied criterion B1.3.16-B1.3.19 by virtue of it being able to meet the requirement of “world standard” within 10 years.
DISCRETION TO CHANGE ACT’S CATEGORY
I have already said that section 38 of the TEQSA Act confers a discretionary power on me. In light of their extensive submissions and evidence proffered, ACT submits that I should exercise my discretion to register ACT as an Australian University.[261] The Respondent says that the discretion favours refusing the ACT registration as a university.
[261] Exhibit A5, p 84, para 314.
The discretion under section 38 falls to be exercised in one of two circumstances.
If I am satisfied (as ACT submits I should be) that ACT satisfies criteria in B1.3.16-B1.3.19, then I may exercise my discretion to register the ACT as an Australian University. ACT says that there are “overwhelming” reasons as to why I should exercise my discretion in this way, and there is no sound reason to exercise the discretion differently in this first circumstance.[262]
[262] Exhibit A5, p 84, para 316.
The Respondent contends that even if I am satisfied that ACT meets the Threshold Standards, there are still “powerful reasons” not to exercise my discretion in ACT’s favour.[263] In support of this contention, the Respondent submits:[264]
(a)There is significant uncertainty surrounding ACT’s classification of outputs as research, and whether the 30% sample is properly representative of ACT’s research as a whole;
(b)There are significant differences between the process followed by Professor Mews and Professor Meyer and that undertaken under ERA, such as inclusion of outputs that would not have been eligible under ERA, and failure to comply with the ERA rules;
(c)No weight can be placed on the bibliometric and benchmarking evidence put forward on behalf of ACT;
(d)Important changes that have been made by ACT to broaden and strengthen its research focus are only recent; and
(e)Professor Siddle has identified serious concerns as to the scale and concentration of ACT’s research.
[263] Exhibit R2, p 31, para 98.
[264] Exhibit R2, p 31-32, para 99.
The Respondent’s submissions with respect to this second question mirror their contentions already addressed in my answer to the first question. Effectively, the Respondent’s objections have each been dealt with, and I have found that they do not weigh sufficiently against a finding that ACT’s research is at “world standard”.
In summary, having regard to the parties’ submissions, and the evidence before me, I find that there are compelling reasons to exercise the discretion in ACT’s favour. Accordingly, I find that ACT should be registered as an Australian University. In exercising my discretion, I have had due regard to the principles contained in sections 14-16 of the TEQSA Act, and find that a consideration of those principles supports the exercising of the discretion in this way.
REQUIREMENT TO NOTIFY HIGHER EDUCATION MINISTERS
I have found that ACT should be registered as an Australian University. However, I am mindful that the requirement of section 39 of the TEQSA Act must be satisfied before this can happen.[265]
[265] Exhibit R2, p 32, para 101.
Section 39 of the TEQSA Act provides:[266]
[266] Exhibit R2, p 32-33, para 102.
39 Consultation—change relates to use of “university”
(1) This section applies if:
(a) TEQSA proposes to make a decision under subsection 38(1) to change the provider category in which a registered higher education provider is registered; and
(b) the provider’s current provider category, or the proposed provider category, is either the “Australian University” or “Overseas University” provider category.
(2) Before doing so, TEQSA must give the provider and the Minister for each relevant State and Territory responsible for higher education:
(a) a written notice stating that TEQSA intends to make the decision for specified reasons; and
(b) a reasonable opportunity to make representations to TEQSA in relation to the proposed decision.
(3) TEQSA must have regard to any representations received under subsection (2).
The Respondent says that in this case, section 39 would apply because ACT’s “proposed provider category” would be Australian University. The Respondent notes that the reference in subsection 39(1) to “TEQSA” proposing to make a decision under subsection 38(1) would include this Tribunal, conducting a review of a subsection 38(1) decision under section 183 of the TEQSA Act.
The Respondent further contends that by subsection 39(2), each State and Territory higher education Minister (as well as the provider) must be given written notice of the intention to make the decision “for specified reasons”, and a “reasonable opportunity” to make representations in relation to that decision:[267]
(a)the requirement that the notice of the decision include “specified reasons” for the proposed decision could be satisfied by providing a draft of the proposed reasons, or a summary of the proposed decision that is sufficient to explain why it is considered that ACT meets the requirements for registration; and
(b)A “reasonable opportunity” to make representations is a period that is objectively appropriate or suitable, having regard to the circumstances of the case. The Respondent notes that when Avondale became registered as an Australian University in July 2021, State and Territory Ministers were asked to provide a response within 4 weeks.
[267] Exhibit R2, p 33, para 104.

Furthermore, the Respondent submits that per subsection 39(3), TEQSA (again, including the Tribunal on a review) must “have regard” to any representations received. This requires the Tribunal to read, identify, understand and evaluate those representations. The Respondent says that the Tribunal would commit error if it were to ignore, overlook or misunderstand relevant facts or materials, or a substantial and clearly articulated argument.[268]
[268] Exhibit R2, p 33, para 105.
Respondent’s Proposed Approach
The Respondent suggests that one possible approach in the situation outlined above is for the Tribunal to direct TEQSA to provide the necessary notices to the State and Territory Ministers, having provided the parties with draft reasons for a decision or other material that can form the “specified reasons” for the proposed decision as required by subsection 39(2)(a). Whether any further steps would be required after notification (and if so, what) would therefore depend on whether any State or Territory Ministers wished to make representations, and the content of any representations.[269]
[269] Exhibit R2, p 33, para 106.
ACT Proposed Approach
ACT agrees that section 39 of the TEQSA Act requires that, before making a decision to change a provider’s category to Australian University, TEQSA must give the provider and Minister for each relevant State and Territory responsible for higher education a written notice stating that TEQSA intends to make the decision for specified reasons and a reasonable opportunity to make representations to TEQSA in relation to the proposed decision.[270]
[270] Exhibit A6, p 39, para 121.
Therefore, ACT contends that in properly constructing the effect of subsection 39(2) and (3) of the TEQSA Act, the Tribunal must:[271]
[271] Exhibit A6, p 39, para 122.
(a)provide ACT and the relevant Ministers with a written notice:
(i)stating that it intends to make a decision registering the ACT as an Australian University; and
(ii)specifying its reasons;
(b)give the ACT and the relevant Ministers a "reasonable opportunity" to make representations to the Tribunal in relation to that proposed decision; and
(c)not "make the decision" to register the ACT as a University until:
(i)the reasonable opportunity to make representations has been provided; and
(ii)the Tribunal has had regard to any representations received within that time.
ACT says that the Respondent’s proposal that the Tribunal issue its reasons to the ACT and relevant Ministers in draft or summary form appears unnecessary and may give rise to uncertainty as to whether the reasons provided constitute “specified reasons” within the meaning of subsection 39(2).[272]
[272] Exhibit A6, p 39, para 123.
Rather, ACT submits that it would be consistent with the statutory scheme of section 39 for the Tribunal to:[273]
[273] Exhibit A6, p 40, para 124.
(a)provide the parties with written notice of the intention to make the decision registering the ACT as an Australian University and written reasons;
(b)direct TEQSA to:
(i)serve notices of the intention to make the decision and reasons (subsection 39(2)(a)) and specifying the time which the Tribunal considers amounts to a reasonable opportunity within which to make representations (subsection 39(2)(b)) to ACT and the relevant Ministers;
(ii)provide the Tribunal with copies of the notices so issued and any representations received in response by the due date,
(c)after the reasonable opportunity to make representations has passed:
(i)if no representations are received, proceed to make orders on the papers registering ACT as a University with reasons in conformity with subsections 43(2), (2B) of the AAT Act;
(ii)if only representations neutral to or supportive of ACT being registered as a University are received, proceed to make orders on the papers registering ACT as a University with reasons in conformity with subsections 43(2), (2B) of the AAT Act; and
(d)if any representations not supportive of ACT being registered as a University are received, list the matter for a directions hearing to determine the necessary steps for ACT to be given a fair and reasonable opportunity to respond to any such representations.
While I appreciate the parties’ submissions in relation to dealing with the formalities in section 39 (including the ministerial consultation requirements), I do not agree that their respective proposed approaches are feasible in the present case. The Administrative Appeals Tribunal will shortly cease to exist. In these circumstances, I consider it desirable and efficient for the matter to be remitted to the Respondent to manage the procedural steps in section 39 of the TEQSA Act, rather than keep the matter on foot, to transition to the Administrative Review Tribunal.
Accordingly, I remit the matter to TEQSA for reconsideration in accordance with a direction that ACT be registered as an Australian University, subject to the completion of the requirements of section 39 of the TEQSA Act within 90 days.
DECISION
The Tribunal pursuant to subsection 43(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth):
(1)sets aside the decision under review; and
(2)remits the matter to the Respondent for reconsideration in accordance with the direction that the Applicant be registered as an Australian University, subject to the completion of the requirements of section 39 of the Tertiary Education Quality and Standards Agency Act 2011 (Cth) within 90 days.
I certify that the preceding 305 (three hundred and five) paragraphs are a true copy of the reasons for the decision herein of Member Lee Benjamin.
...............[SGD]....................
Associate
Dated: 11 October 2024
Dates of Hearing:   15 December 2023;
18-19 December 2023;
27 March 2024
Representatives for Applicant:                 Mr J McKenna KC of Counsel
Mr A O’Brien of Counsel
Instructed by Minter Ellison
Representatives for Respondent:              Mr Graeme Hill SC of Counsel
Mr Stephen Rebikoff SC of Counsel
Instructed by Australian Government Solicitor
ANNEXURE A

EXHIBIT DESCRIPTION OF EVIDENCE PARTY DATE OF DOCUMENT DATE RECEIVED

Exh 1.
Joint Hearing Book

·     Part A, Section 1-4;

·     Part B, Section 1-3; and

·     Supplementary Statement of Michael James Wells (dated 11 December 2023)
- - 27/09/2023

Exh 2. Document of Corrections of Professor Dalziel Affidavit
A
- 15/12/2023

Exh 3. Current Version of the Constitution of the Australian College of Theology -

Exh 4. ERA Handbook for witnesses A - 27/03/2024

A1. Applicant Supplementary Bundle of Authorities
A

-

14/12/2023

A2. Applicant Supplementary Bundle of Documents
(containing documents 1-11)

A3. Applicant List of Material and Bundle of Documents referred to in Applicant Opening - 15/12/2023

A4. Applicant Further Bundle of Documents 20/12/2023

A5. Applicant Closing Submissions 19/02/2024

A6. Applicant Reply Submissions 21/03/2024

A7. Applicant Further Supplementary Bundle of Authorities - 26/03/2024

R1. Joint Bundle of Authorities filed by Respondent
R
- 27/09/2023

R2. Respondent Closing Submissions 12/03/2024

R3. Respondent List of Materials - 25/03/2024

R4. Respondent Supplementary Bundle of Authorities - 25/03/2024

[2024] AATA 3598

11 October 2024

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Expert Evidence

Remedies

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
Exh 1.	Joint Hearing Book · Part A, Section 1-4; · Part B, Section 1-3; and · Supplementary Statement of Michael James Wells (dated 11 December 2023)	-	-	27/09/2023
Exh 2.	Document of Corrections of Professor Dalziel Affidavit	A	-	15/12/2023
Exh 3.	Current Version of the Constitution of the Australian College of Theology	A	-	15/12/2023
Exh 4.	ERA Handbook for witnesses	A	-	27/03/2024
A1.	Applicant Supplementary Bundle of Authorities	A	-	14/12/2023
A2.	Applicant Supplementary Bundle of Documents (containing documents 1-11)			14/12/2023
A3.	Applicant List of Material and Bundle of Documents referred to in Applicant Opening			-	15/12/2023
A4.	Applicant Further Bundle of Documents			20/12/2023
A5.	Applicant Closing Submissions		19/02/2024
A6.	Applicant Reply Submissions		21/03/2024
A7.	Applicant Further Supplementary Bundle of Authorities		-	26/03/2024
R1.	Joint Bundle of Authorities filed by Respondent	R	-	27/09/2023
R2.	Respondent Closing Submissions		12/03/2024
R3.	Respondent List of Materials		-	25/03/2024
R4.	Respondent Supplementary Bundle of Authorities		-	25/03/2024