SAE Institute Pty Ltd and Tertiary Education Quality and Standards Agency - [2023] AATA 4250

SAE Institute Pty Ltd and Tertiary Education Quality and Standards Agency [2023] AATA 4250 (22 December 2023)
Division: GENERAL DIVISION
File Number(s):2021/5494
Re:SAE Institute Pty Ltd
APPLICANT

Tertiary Education Quality and Standards AgencyAnd
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:22 December 2023
Place:Brisbane

The Tribunal sets aside the decision under review and in substitution decides that pursuant to section 38 of the Tertiary Education Quality Standards Agency Act 2011 (Cth) the Applicant’s provider category is changed to University College.
....................................[SGD]....................................
Member D Mitchell

CATCHWORDS
TERTIARY EDUCATION REGISTRATION – application to change provider registration category - whether the Applicant can be registered as a University College – compliance with the Higher Education Standards Framework (Threshold Standards) 2021 (Cth) – a relevant rather than mandatory consideration – whether there is a discretion that is applied when deciding whether to change a provider category – decision under review set aside and substituted
LEGISLATION
Education Services for Overseas Student Act 2000 (Cth)
Higher Education Standards Framework (Threshold Standards) 2015 (Cth)
Higher Education Standards Framework (Threshold Standards) 2021 (Cth)
National Vocational Education and Training Regulator Act 2001 (Cth)
Standards and Other Measures) Act 2021 (Cth)
Tertiary Education Quality and Standards Agency Act 2011 (Cth)
Threshold Standards and Higher Education Legislation Amendment (Provider Category)
CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Fruigtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
Re Barque Institute Pty Ltd and Tertiary Education Quality and Standards Agency [2020] AATA 70
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Secondary Materials
Explanatory Statement Tertiary Education Quality and Standards Agency Act 2011 (Cth) – Higher Education Standards Framework (Threshold Standards) 2021
REASONS FOR DECISION
Member D Mitchell
22 December 2023
INTRODUCTION

On 23 April 2021, SAE Institute Pty Ltd (the Applicant) made an application to the Respondent to be considered for registration in the category of University College under the new Threshold Standards[1] which were to come into force on 1 July 2021.[2]
[1] Higher Education Standards Framework (Threshold Standards) 2021 (Cth).
[2] Exhibit 1, T Documents, T20, pages 47529-927, Submission documents for University College category, submitted by Mr Patrick Nellestein, Higher Education Compliance Manager of the Applicant to the Respondent’s Portal.
On 1 July 2021, the Respondent made a decision to change the Applicant’s provider category to Institute of Higher Education rather than University College.[3]
[3] Exhibit 1, T Documents, T 2, pages 10-24, Reviewable Decision.
On 22 July 2021, the Applicant made an Application for Review of a Decision to the Tribunal seeking review of the Respondent’s decision.[4]
[4] Exhibit 1, T Documents, T1, pages 1-9, Application for Review.
BACKGROUND
The Applicant was established in 1976 as a dedicated school of audio engineering.[5]
[5]
In 2001 the Applicant was registered to deliver vocational education and training courses under the National Vocational Education and Training Regulator Act 2001 (Cth).[6]
[6]
In 2007, the Applicant was registered as a higher education provider under the State-based regime then in place in New South Wales[7] and became registered as a higher education provider under the Tertiary Education Quality and Standards Agency Act 2011 (Cth) (TEQSA Act) upon its commencement.
[7]
In 2013 the Applicant’s registration was renewed under the TEQSA Act for seven years in the provider category of Higher Education Provider.[8]
[8]
In around 2013, the Applicant was also reregistered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) under the Education Services for Overseas Student Act 2000 (Cth) (ESOS Act).[9]
[9]
On 6 November 2019, the Applicant’s registration in the category of Higher Education Provider was renewed by the Respondent under section 36 of the TEQSA Act for 7 years.[10]
[10]
On 16 December 2020, pursuant to section 41 of the TEQSA Act, the Respondent authorised the Applicant to self-accredit a number of its courses of study at Australian Qualification Framework (AQF) levels 5, 6 and 7.[11]
[11]
Following a review of the Higher Education Provider Category Standards previously set out in the Higher Education Standards Framework (Threshold Standards) 2015 (Cth), the number of provider categories was decreased from six to four, renaming the categories, amending the criteria for entry into each category and introducing a new category for non-university providers (which was named the University College category) with a track record of high quality student outcomes.[12]
[12] Joint Bundle of Authorities, Tab 17, Coaldrake Report “What’s In a Name? Review of the Higher Education Provider Category Standards”, Final Report, September 2019.
On 12 March 2021, the Respondent sent a letter to all registered higher education providers to advise of its plans in relation to the implementation of the review recommendations set out in new Threshold Standards.[13] The new Threshold Standards were prescribed in the Higher Education Standards Framework (Threshold Standards) 2021 (Cth) (Threshold Standards).
[13] Exhibit 1, T Documents, T28, page 48234 at [3.1], Brief to TEQSA Commission with attachment.
On 16 March 2021, the Respondent sent a letter to the Applicant advising of the options for new provider categories and inviting it to make a submission for consideration in the University College category.[14]
[14] Exhibit 1, T Documents, T28, page 48234 at [3.2], Brief to TEQSA Commission with attachment.
On 23 April 2021, the Applicant made an application to the Respondent to be considered for registration in the category of University College under the new Threshold Standards.[15]
[15] Exhibit 1, T Documents, T20, pages 47529-927, Submission documents for University College category, submitted by Mr Patrick Nellestein, Higher Education Compliance Manger of the Applicant uploaded to the Respondent’s Portal.
Pursuant to section 58 of the TEQSA Act the new Threshold Standards were issued and came into effect on 1 July 2021.[16]
[16] See section 2(1), item 2 of the Threshold Standards and Higher Education Legislation Amendment (Provider Category Standards and Other Measures) Act 2021 (Cth).
On 1 July 2021, the Respondent decided to change the Applicant’s provider category from Higher Education Provider to Institute of Higher Education. The Respondent was not satisfied that the Applicant met the requirements for entry into the University College category.[17]
[17] Exhibit 1, T2, pages 10-24, Reviewable Decision.
The Respondent’s decision set out that it was not satisfied that the Applicant had met the following criteria for categorisation as a University College:[18]
(a)a history of successful delivery with strong student outcomes (B1.2.4);
(b)mature and advanced processes for monitoring quality assurance of delivery of all courses of study (B1.2.5); and
(c)evidence of systematic support for scholarship activities and outcomes that inform teaching and learning and make a contribution to the advancement and dissemination of knowledge (B1.2.6).
[18] Exhibit 1, T2, page 13, Reviewable Decision.
On 22 July 2021, the Applicant made an Application for Review of a Decision to the Tribunal seeking review of the Respondent’s decision.[19]
[19] Exhibit 1, T Documents, T1, pages 1-9, Application for Review.
As of 8 September 2022, the Applicant delivered accredited programs at undergraduate and postgraduate level to approximately 2,400 students in the broad area of creative arts and industries at six Australian campuses and a campus in Dubai.[20]
[20]
Ahead of the Hearing in this matter the Applicant filed:
-A Statement of Issues, Facts and Contentions dated 14 June 2023.[21]
-Affidavits of Luke McMillan affirmed on 8 September 2022[22] and 24 May 2023.[23]
-Expert Report of Michael Wells dated 7 February 2023.[24]
-
Joint Expert Report of Michael Wells and Emeritus Professor Mike Calford dated

9 June 2023.[25]
[21]    Exhibit 2, Joint Hearing Book, Tab 2, pages 10-38, Applicant’s Statement of Issues, Facts and Contentions.
[22]    Exhibit 2, Joint Hearing Book, Tab 4, pages 58-386, Affidavit of Luke McMillan affirmed 8 September 2022.
[23]    Exhibit 2, Joint Hearing Book, Tab 5, pages 387-414, Affidavit of Luck McMillian affirmed 8 September 2022.
[24]    Exhibit 2, Joint Hearing Book, Tab 7, pages 445-486, Expert Report of Michael Wells.
[25]    Exhibit 2, Joint Hearing Book, Tab 9, pages 634-687, Joint Expert Report of Michael Wells and Emeritus Professor Mike Calford.
Ahead of the Hearing in this matter the Respondent filed:
-A Statement of Facts, Issues and Contentions dated 12 July 2023.[26]
-Expert Report of Professor Elizabeth Deane dated 1 July 2022.[27]
-Expert Report of Professor Elizabeth Deane dated 22 March 2023 with attachments.[28]
[26]    Exhibit 2, Joint Hearing Book, Tab 3, pages 39-57, Respondent’s Statement of Facts, Issues and Contentions.
[27]    Exhibit 2, Joint Hearing Book, Tab 6, pages 415-444, Expert Report of Professor Elizabeth Deane.
[28]    Exhibit 2, Joint Hearing Book, Tab 8, 8.1-8.5, pages 487-633, Expert Report of Professor Elizabeth Deane and attachments.
On 17 July 2023, the parties filed a joint Expert Report of Michael Wells, Emeritus Professor Mike Calford and Professor Elizabeth Deane.[29]
[29] Exhibit 2, Joint Hearing Book, Tab 10, pages 688-690, Joint Expert Report of Michael Wells, Emeritus Professor Mike Calford and Professor Elizabeth Deane.
On 23 and 24 August 2023, a Hearing was conducted in this matter. The Applicant was represented by Mr Saul Holt KC, senior counsel and Mr Dan Fuller, junior counsel, instructed by Mr Tom Fletcher of Minter Ellison. The Respondent was represented by

Ms Brenda Tronson, of counsel, instructed by Mr Ryan Harvey of the Australian Government Solicitor. At the Hearing, Mr Wells, Emeritus Professor Calford and Professor Deane gave concurrent evidence.[30] Mr McMillian was not called to give evidence as the Respondent did not seek to cross examine him – as such the matters outlined in his affidavits were not challenged.[31]
[30] Transcript, pages 31-133.
[31] Transcript, page 10.
On 1 September 2023, the parties in response to questions raised by the Tribunal at the Hearing provided submissions on statutory construction regarding the interaction between initial registration, renewal and change of provider category.[32]
[32] Applicant’s note on interaction between registration and change of provider category and Respondent’s further submissions on statutory construction.
ISSUES
The issue before the Tribunal is whether the decision to change the Applicant’s provider category to Institute of Higher Education rather than to University College, is the correct and preferrable decision based on the evidence before it.[33]
[33] See: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419; 2 ALD 60 at 68-69; Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [35]-[38], [98] and [141]-[143]; Fruigtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at [51] and Re Barque Institute Pty ltd and Tertiary Education Quality and Standards Agency [2020] AATA 70.
To determine that issue, the Tribunal must consider:
(a)Whether the Applicant meets the criteria for the University College category set out in Part B1.2 of the Threshold Standards.[34] While there are twelve criteria set out in Part B1.2, the parties agree that the only criteria in issue are whether the Applicant meets the following:[35]
(i)Criterion B1.2.4: has a history of at least five years of successful delivery with strong student outcomes.
(ii)Criterion B1.2.5: has mature and advanced processes for the design, delivery, accreditation, monitoring, quality assurance, review and improvement of courses of study and the maintenance of academic integrity.
(iii)Criterion B1.2.6: demonstrates systematic support for scholarship and demonstrates scholarly activities and outcomes that inform teaching, learning, and professional practice, and make a contribution to the advancement and dissemination of knowledge.
(b)If the Tribunal finds that the Applicant does not meet the University College Criteria,[36] whether there is discretion to change the Applicant’s provider category and if so whether it should exercise that discretion in favour of the Applicant.
[34]    Sections 38(1A) and 38(2) of the TEQSA Act.
[35]    Exhibit 1, T Documents, T2, pages 10-11, paragraphs 4-5, Applicant’s Statement of Issues, Facts and Contentions and T3, pages 46-47, paragraph 46, Respondent’s Statement of Facts, Issue and Contentions.
[36]    It was not contended by the Respondent that should the Tribunal find that the Applicant did meet the University College Criteria it should not exercise the discretion in section 38 of the TEQSA Act to change the Applicant’s provider category.
THE LAW
The TEQSA Act provides the framework for the national regulation of higher education. The objects of the TEQSA Act are set out in section 3 as being:
(a)     to provide for national consistency in the regulation of higher education; and
(b)to regulate higher education using:
(i)    a standards-based quality framework; and
(ii)    principles relating to regulatory necessity, risk and proportionality; and
(c)to protect and enhance:
(i)    Australia's reputation for quality higher education and training services; and
(ii)    Australia's international competitiveness in the higher education sector; and
(iii)   excellence, diversity and innovation in higher education in Australia; and
(d)to encourage and promote a higher education system that is appropriate to meet Australia's social and economic needs for a highly educated and skilled population; and
(e)to protect students undertaking, or proposing to undertake, higher education in Australia by requiring the provision of quality higher education; and
(f)to ensure students undertaking, or proposing to undertake, higher education, have access to information relating to higher education in Australia; and
(g)to protect and enhance the academic integrity of courses provided by higher education providers by prohibiting academic cheating services.
Part 2 of the TEQSA Act outlines the principles for regulation that the Respondent must comply with. The basic principles for regulation are set in section 13 of the TEQSA Act requiring that in exercising a power under the TEQSA Act the Respondent must comply with the principles of regulatory necessity, reflecting risk and proportionate regulation.
Section 18 of the TEQSA Act provides that a regulated entity who is, or intends to become, a higher education provider may apply to the Respondent for registration within a particular provider category.
Section 21 of the TEQSA Act provides that the Respondent may grant the application for registration if it is satisfied amongst other things that the applicant meets the Threshold Standards.[37] Registration is granted for a period not exceeding 7 years.[38]
[37] Section 21(1) of the TEQSA Act.
[38] Section 21(6) of the TEQSA Act.
Section 38 of the TEQSA Act outlines the requirements that must be met in order for a provider registration category to be changed as follows:
38 Changing provider registration category
(1)TEQSA may change the provider category in which a registered higher education provider is registered:
(a)   on its own initiative; or
(b)   on application by the provider.
(1A) In relation to an application under paragraph (1)(b), if TEQSA considers that the provider category in which the provider is registered should not be changed, TEQSA may decide not to change that category.
(2)However, before making a decision under subsection (1) or (1A) TEQSA must have regard to the Threshold Standards.
(3)A registered higher education provider's application must be:
(a)   in the approved form; and
(b)   accompanied by any information, documents and assistance that TEQSA requests; and
(c)   accompanied by the fee determined under section 158 for an application under this section.
Section 5 of the TEQSA Act provides the following relevant definitions:
higher education provider means:
(a)a constitutional corporation that offers or confers a regulated higher education award; or
(b)a corporation that:
(i) offers or confers a regulated higher education award; and
(ii) is established by or under a law of the Commonwealth or a Territory; or
(c)a person who offers or confers a regulated higher education award for the completion of a course of study provided wholly or partly in a Territory.
provider category means a provider category listed in the Threshold Standards.
Threshold Standards means the Threshold Standards made under paragraph 58(1)(a).
Section 58(1) of the TEQSA Act provides that:
(1)The Minister may, by legislative instrument, make the following standards that make up the Higher Education Standards Framework:
(a) the Threshold Standards;
(b) other standards against which the quality of higher education can be assessed.
The Higher Education Standard Framework (Threshold Standards) 2021 (Cth) (Threshold Standards) were made pursuant to section 58 of the TEQSA Act.
Section 6 of the Threshold Standards provides that the provider categories for the purpose of the definition in section 5 of the TEQSA Act are:
(a)   Institute of Higher Education
(b)   University College
(c)   Australian University, and
(d)   Overseas University.
The Threshold Standards comprise of:[39]
[39] Schedule 1 to the Threshold Standards sets out the Higher Education Threshold Standards: Higher Education Threshold Standards to the Threshold Standards.
Part A: Standards for Higher Education
These Standards represent the minimum acceptable requirements for the provision of higher education in or from Australia by higher education providers registered under the TEQSA Act.
Part B: Criteria for Higher Education Providers
These criteria enable categorisation of different types of higher education providers according to certain characteristics; and whether a provider is responsible for self-accreditation of a course(s) of study it delivers.
It is accepted in this matter that the Applicant meets the Part A Standards for Higher Education criteria set out in the Threshold Standards.
Part B: Criteria for Higher Education Providers of the Threshold Standards sets out:
PART B: Criteria for Higher Education Providers
B1 Criteria for Higher Education Provider Categories
All providers of higher education must meet the requirements of Part A and satisfy the requirements set out under the ‘Institute of Higher Education’ category in order to gain registration by TEQSA.
Higher education providers may seek approval within a particular provider category under subsection 18(1) (applying for registration) or section 38 (change of category) of the TEQSA Act. The four provider categories are:
·       ‘Institute of Higher Education’
·       ‘University College’
·       ‘Australian University’
·       ‘Overseas University’.
The provider category of each higher education provider will be detailed on the National Register of Higher Education Providers (administered by TEQSA).
B1.1     ‘Institute of Higher Education’ Category
A higher education provider registered in the category offers an Australian higher education qualification and/or an overseas higher education qualification.
1.The higher education provider meets the requirements of Part A, has a clearly articulated higher education purpose that includes a commitment to free intellectual inquiry, and offers at least one accredited course of study.
2.The higher education provider’s academic and teaching staff are active in scholarship that informs their teaching, and active in research when engaged in research student supervision, supported by the provider.
3.The higher education provider features its TEQSA Provider Identification and provider category on relevant public material.
B1.2     ‘University College’ Category
A higher education provider registered in the category offers an Australian higher education qualification and/or an overseas higher education qualification.
The higher education provider:
1.satisfies the criteria for the ‘Institute of Higher Education’ category
2.demonstrates a mature level of development and a track record of compliance against each applicable criterion B1.2.3-10 below
3.has authority to self-accredit at least 70 per cent of its total courses of study, at the time of application to TEQSA
4.has a history of at least five years of successful delivery with strong student outcomes. Student outcomes can be measured against a variety of sources acceptable to TEQSA
5.has mature and advanced processes for the design, delivery, accreditation, monitoring, quality assurance, review and improvement of courses of study, and the maintenance of academic integrity
6.demonstrates systematic support for scholarship and demonstrates scholarly activities and outcomes that inform teaching, learning, and professional practice, and make a contribution to the advancement and dissemination of knowledge
7.identifies and implements good practices and advances in teaching and learning, and shares those practices with the higher education sector more broadly
8.has sufficient depth of academic leadership and expertise, in the fields of education it delivers, to guide teaching, learning, and academic governance
9.demonstrates engagement with employers, industry, and the professions in the areas in which it offers courses of study. This engagement may include, but is not limited to, curriculum development, work-integrated learning, and research partnerships
10.in the fields of education in which it offers courses of study, demonstrates civic leadership through engagement with its communities and a commitment to social responsibility
11.is not required to position itself to apply for registration in the Australian University category, but may elect to do so, and
12.if it chooses to use the ‘University College’ title, must use it in full, and not abbreviate it to ‘University’.
…

The purpose of the Threshold Standards is expressed in the Explanatory Statement to the Higher Education Standards Framework (Threshold Standards) 2021 (Cth) as follows:[40]
[40] Explanatory Statement -Tertiary Education Quality and Standards Agency Act 2011 (Cth) - Higher Education Standards Framework (Threshold Standards) 2021.
The purpose of the Instrument is to define new Threshold Standards. The Threshold Standards are established by subsection 58(1)(a) of the TEQSA Act and set the requirements that a higher education provider must meet, and continue to meet, in order to be registered by TEQSA to operate in Australia. They provide the basis for the regulation of Australian higher education providers by TEQSA. The Threshold Standards ensure that the barrier to entry into the higher education sector is set sufficiently high to underpin and protect the quality and reputation of the sector as a whole. They also establish a solid basis of operational quality and integrity from which all providers can continue to build excellence and diversity.
The Threshold Standards also serve other broader purposes in Australian higher education including:
·     an articulation of the expectations for provision of higher education in Australia as:
-   a guide to the quality of educational experiences that students should expect
-   a reference for international comparisons of the provision of higher education
-   a reference for other interested parties; and
·     a model framework which higher education providers can themselves apply for the internal monitoring, quality assurance and quality improvement of their higher education activities.
CONSIDERATION
Having considered the evidence and contentions before it, the Tribunal acknowledges that the issues in this application are not straight forward and notes that the TEQSA Act has not been subject to a great deal of review by the Courts or Tribunal.
The crux of the matter comes down to whether the discretion provided by section 38 of the TEQSA Act should be exercised to change the Applicant’s higher education provider category to University College.
Both parties agree that section 38 of the TEQSA Act provides the Respondent and as such the Tribunal standing in their shoes with a discretion to change the Applicant’s provider registration category having regard to the Threshold Standards.[41]
[41] Transcript, pages 5 and 170.
In regard to the criteria in the Threshold Standards that are in dispute, the Applicant contended that it meets the requirements of Part B1.2 of the Threshold Standards and that the discretion should be exercised in its favour. The Respondent did not contend or make submissions that if the Tribunal was satisfied that the Applicant met the Threshold Standards the discretion not to change its provider category should be exercised.[42]
[42] Transcript, page 170.
The Respondent however contended that while it accepted that the Applicant was close to meeting each of the criteria, it did not meet those criteria. As such, the Respondent contended that regard should be had to the failures in the three categories cumulatively and as a whole and that the better decision would be to exercise the discretion not to grant the registration in the new category.[43]
[43] Transcript, page 175.
The Applicant acknowledged the importance of the Threshold Standards and submitted that should the Tribunal find that it did not meet the criteria in question, it should only exercise the discretion to grant it registration in the new category if it was satisfied that there was not a rank failure to meet those criteria.[44]
[44] Transcript, pages 144-147.
The Tribunal notes that the construction of section 38 of the TEQSA Act provides a discretion to approve[45] or refuse[46] a change of provider registration category after having regards to the Threshold Standards.
[45] Section 38(1) of the TEQSA Act.
[46] Section 38(1A) of the TEQSA Act.
While regard must be had to the Threshold Standards in deciding whether to exercise the discretion in section 38 of the TEQSA Act, the Tribunal is not constrained to having to be satisfied that the Applicant meets the applicable Threshold Standards. It is necessary to consider the Threshold Standards, however they are not mandatory requirements that must be met before the discretion in section 38(1) of the TEQSA Act can be exercised.
In this matter the criteria in question have been narrowed somewhat by the parties and as such relate to criteria B1.2.4, B1.2.5 and B.1.2.6 or parts thereof of Part B1.2 of the Threshold Standards. Based on the evidence before it, the Tribunal accepts that the Applicant meets Part A, Part B1.1 and the parts of Part B1.2 of the Threshold Standards that are not in dispute.
The Tribunal notes that the criterion set out in Part B1.2.2 of the Threshold Standards requires that a higher education provider “demonstrates a mature level of development and a track record of compliance against each applicable criterion B1.2.3-10”. As such in considering the criteria of Part B1.2 of the Threshold Standards that are in dispute, the Tribunal has also considered the requirements of criterion B1.2.2.
The Applicant contended that when construing the criteria in Part B1.2 of the Threshold Standards it should be kept in mind that:[47]
(a)First, the 2021 Threshold Standards form part of what is described in the TEQSA Act as a ‘standards-based quality framework’ for regulating higher education providers.[48]That description, and the regulatory principles set out in paragraph 28 above, do not lend themselves to a view that any part of the 2021 Threshold Standards imposes standards of perfection, or requires a provider to have attained best practice by reference to a comparative analysis with other providers in the sector (an exercise that would be contrary to the notion of a ‘standards-based quality framework’). As TEQSA’s Risk Assessment Framework recognises,[49] a provider may meet the Threshold Standards even if not all risks to compliance have been controlled or eliminated, or if there is room for continuous improvement.
(b)Second, because the Threshold Standards apply to providers of all types and sizes, they must be construed such that they constitute appropriate quality standards for providers with a range of sizes, resourcing levels and demographics. It would therefore be wrong to treat one kind of provider (for example, highly resourced and exclusive providers) as constituting a benchmark that all providers must meet in order to meet the Threshold Standards.
[47]    Applicant’s Closing Submissions, page 9, paragraph 29. At the Hearing the Applicant noted that its Closing Submissions incorporated its Statement of Facts, Issue and Contentions found in Exhibit 2, Joint Hearing Book, Tab 2, pages 10-38: see Transcript, page 137.
[48]    Section 3(b)(i) of the TEQSA Act.
[49]
The Respondent contended that it is clear from the Threshold Standards and the relating extrinsic material that University Colleges are meant to be high-quality non-university education providers with a track records of high-quality student outcomes.[50]
[50] Transcript, pages 172-173 and Exhibit 2, Joint Hearing Book, Tab 3, page 49, paragraphs 58-66, Respondent’s Statement of Facts, Issues and Contentions.
The Tribunal understands the important function provided by the Respondent pursuant to the TEQSA Act and that the need for the objectives of the TEQSA Act to be met, through regulation, is in the best interests of the higher education sector and students.
As such, the Tribunal will in turn, work through each of the criteria in dispute. In doing so the Tribunal has considered the large quantity of evidence before it, which includes (but is not limited to), the T Documents filed by the Respondent, the unchallenged affidavit evidence of Dr McMillian as General Manager of the Applicant (which includes a large volume of attachments), expert reports and evidence provided under affirmation at the Hearing by Mr Wells, Emeritus Professor Calford and Professor Deane (collectively the expert witnesses). The Tribunal considers that the expert witnesses gave both individual and concurrent evidence in a respectful and considered manner at the Hearing.
For context with regards to the expert witnesses the Tribunal acknowledges their vast experience and relevant backgrounds and notes that:
(c)Mr Wells was a founding Commissioner of the Respondent who was involved (among other things) in the development of the Threshold Standards and the Respondent’s regulatory risk framework and has since been engaged by the Respondent in an advisory capacity.[51]
(d)Emeritus Professor Calford has among other things, held senior leadership roles included Acting Vice-Chancellor, Provost and Deputy Vice-Chancellor at the Australian National University, University of Tasmania and University of Newcastle, and has been a director, board member and committee member of numerous research and other institutes and organisations.[52]
(e)Professor Deane has extensive experience in university management and governance at a number of Australian universities and has acted in governance roles for a number of higher education private providers. She also has significant experience as a quality assurance, registration and discipline reviewer both nationally and internationally.[53]
[51]    Applicant’s Closing Submissions, page 10, paragraph 33 sighting Exhibit 2, Joint Hearing Book, Tab 7, page 484, Expert Report of Michael Wells.
[52]    Applicant’s Closing Submissions, page 10, paragraph 33 sighting Exhibit 2, Joint Hearing Book, Tab 9, pages 659-664, Joint Expert Report of Michael Wells and Emeritus Professor Mike Calford.
[53]    Exhibit 2, Joint Hearing Book, Tab 3, Respondent’s Statement of Facts, Issues and Contentions, page 7, paragraph 39 sighting Tab 6, pages 521-523, Expert Report of Professor Elizabeth Deane.
The Tribunal will not outline the detailed reports[54] and evidence provided by the expert witnesses at the Hearing[55] or the extensive evidence provided by the Affidavits dated

8 September 2022 and 24 May 2023[56] of Dr McMillan. The Tribunal notes that the parties contentions set out below largely capture and summarises that evidence.
[54]    As provided by Exhibit 2, Joint Hearing Book, Tab 6-10, pages 415-690, Expert Reports.
[55]    Transcript, pages 31-133.
[56]    As provided by Exhibit 2, Joint Hearing Book, Tab 4-5, pages 58-414, Affidavits of Mr McMillan.
It would be remiss of the Tribunal not to acknowledge the level of detail provided by

Dr McMillan of which, provided the Tribunal with context and understanding of the Applicant’s operations.
The Tribunal makes the findings set out below in context of the following uncontested background:
(a)The Applicant commenced operating in 1976[57] and has been a registered higher education provider since 2003.[58]
[57]    Exhibit 2, Joint Hearing Book, Tab 4, page 65, paragraph 13, Affidavit of Mr McMillan.
[58]    Exhibit 2, Joint Hearing Book, Tab 4, page 65, paragraph 17, Affidavit of Mr McMillan.
(b)The Applicant became registered as a higher education provider under the TEQSA Act upon its commencement.
(c)The Applicant is the sixth-largest provider of creative industries and media programs in Australia and one of the largest providers of undergraduate creative arts programs.[59]
[59]    Exhibit 2, Joint Hearing Book, Tab 4, pages 70-71, paragraphs 40-42, Affidavit of Mr McMillan.
(d)The Applicant has a significant proportion of students who are first in their family to study at a higher education provider,[60] as well as a higher proportion of students with a disability and low socio-economic status.[61]
[60]    Exhibit 2, Joint Hearing Book, Tab 4, pages 193-195, paragraphs 339-343, Affidavit of Mr McMillan.
[61]    Exhibit 2, Joint Hearing Book, Tab 4, pages 194-195, paragraphs 343-344, Affidavit of Mr McMillan.
(e)In 2013, the Applicant’s registration was renewed under the TEQSA Act for seven years in the provider category of Higher Education Provider with no conditions.[62]
[62]
(f)In November 2019, the Respondent renewed the Applicant’s registration as a higher education provider for the maximum period of seven years with no conditions.[63]
[63]    Exhibit 2, Joint Hearing Book, Tab 4, page 67, paragraph 29, Affidavit of Mr McMillan.
(g)On 16 December 2020, the Respondent granted the Applicant self-accrediting authority in six fields of education across two broad fields of education, which included all of its undergraduate courses.[64] The Respondent granted the Applicant self-accrediting authority on the basis that it was satisfied that the Applicant met the Criteria for Seeking Authority for Self-Accreditation of Courses of Study of the Higher Education Standards Framework (Threshold Standards) 2015 (Cth).[65]
[64]    Exhibit 1, T Documents, T17, pages 47460-47488, Decision to grant the Applicant self-accreditation authority and Exhibit 2, Joint Hearing Book, Tab 4, pages 67-69, paragraphs 30-31, Affidavit of Mr McMillan.
[65]    Exhibit 1, T Documents, T17, page 47461, Decision to grant the Applicant self-accreditation authority.
(h)Since 2012, the Respondent has made positive decisions on all of the Applicant’s (re)accreditation and re-registration assessments such that it has:[66]
(i)twice renewed the Applicant’s registration for a period of seven years without conditions;
(ii)accredited 27 courses of study for seven years without conditions;
(iii)accredited two short courses for the maximum allowable period without conditions;
(iv)renewed the accreditation of 18 courses of study for seven years without conditions; and
(v)renewed the accreditation of two courses in teach out without conditions.
(i)The Applicant has taken or committed to taking a number of steps to address the concerns raised by the Respondent and Professor Deane, as set out in the affidavits of Dr McMillian and in the Annexure to the Applicant’s Closing Submissions.[67]
B1.2.4 – strong student outcomes
[66]    Exhibit 1, T Documents, T17, page 47463, Decision to grant the Applicant self-accreditation authority.
[67]    Applicant’s Closing Submissions, page 10, paragraph 32 and Annexure, pages 37-38.
Criterion B1.2.4 of Part B1.2 of the Threshold Standards requires that the higher education provider:
has a history of at least five years of successful delivery with strong student outcomes. Student outcomes can be measured against a variety of sources acceptable to TEQSA.
It is noted that in the Joint Expert Report outlining the points of agreement and disagreement between the experts:[68]
[68] Exhibit 2, Joint Hearing Book, Tab 10, pages 688-689, Joint Expert Report.
(a)it was agreed that:
(i)a number of indicators need to be used to assess “strong student outcomes”;
(ii)analysis needs to include assessment against self as well as assessment against the sector/comparators;
(iii)more weight should be given to non-survey-based data;
(iv)the Applicant is demonstrating improvement with respect to attrition indicators; and
(v)the Applicant has put in place strategies to support improvements in student outcomes.
(b)Mr Wells and Emeritus Professor Calford are of the opinion that:
(i)the Applicant was currently providing strong student outcomes on a mix of measures;
(ii)successful student outcomes should be judged by the Threshold Criteria rather than sector averages;
(iii)universities need to be scoped into the analysis, as all institutions, regardless of category need to meet the Threshold Standards and on this basis the Applicant is performing well above a significant number of those institutions;
(iv)the selected university colleges are not appropriate benchmarks given their specialised and unique context, including longevity and high level of historical government funding; and
(v)greater emphasis needs to be placed on the context of institutional operations.
(c)Professor Deane is of the opinion that:
(i)the Applicant, across a range of indicators, is performing around the average, sometimes above, sometimes below, compared with Non-University Higher Education Institutes (NUHEIs) and Higher Education (HE) sector averages and selected comparator institutions;
(ii)the Applicant needs to demonstrate ongoing, sustained improvements in the selected indicators before the outcomes can be called strong;
(iii)outcomes need to be benchmarked to both NUHEI and HE sector averages (which includes Universities) but with a focus on benchmarking comparator NUHEI institutions with similar Fields of Education (FoE) courses;
(iv)selected University Colleges, as the aspirational category offering courses in the same FoE, should be included as comparators;
(v)historical funding is not directly or demonstrably relevant;
(vi)this is difficult to assess but there is demonstrable head room for the Applicant to improve outcomes. The inclusion of 4, 6 and 9-years completion data addresses delays in completion often seen in disadvantaged groups; and
(vii)the Applicant, had not, as yet, documented outcomes that inform teaching but has in place the foundation for doing so.
Criterion B1.2.4 of Part B1.2 of the Threshold Standards is where the most divergence between the parties contentions and the expert witnesses opinions in this matter lie. The Applicant relying on the evidence of Dr McMillan, Mr Wells and Emeritus Professor Calford contends that it has a history of at least five years of successful delivery with strong student outcomes, on the basis that when considering relevant factors and comparators it sits either around or above most. The Respondent relying on the evidence of Professor Deane contended that when considering the relevant factors and comparators the Applicant sat around average of which, in her view does not show a history of strong student outcomes.
The Applicant outlined their contentions in relation to this criterion as follows:[69]
[69]    Applicant’s Closing Submissions, pages 12-22, paragraphs 12-71.
SAE meets the criterion
45.There is no dispute that SAE has a history of at least five years of successful delivery. That history is evident:
a.SAE has operated successfully for over 45 years, approximately 20 of those as a higher education provider (see paragraph 10 above);
b.SAE is today one of the largest providers of creative arts and media programs in Australia (see paragraph 10 above);
c.SAE has strong industry partnerships and recognition, as is evidenced by the letters of support it has received for its University College application from three significant industry partners (see paragraph 14 above);
d.SAE has a track record for innovation, including delivering the first practical audio engineering and higher education games development courses in Australia;
e.SAE has a strong regulatory history, including the successful accreditation and re- accreditation by TEQSA of 45 courses since 2012 for the maximum statutory period (see paragraph 79 below); and
f.this strong regulatory history culminated in SAE being re-registered for the maximum statutory period in 2019 and receiving self-accrediting authority in 2020 (see paragraphs 10 and 12 above).
46.As set out in paragraph 12 above, the criteria for TEQSA to be satisfied that it was appropriate for SAE to be granted self-accrediting authority included that SAE had ‘a history over at least five years of successful delivery of the course(s) of study for which self-accrediting authority is sought, which is supported by evidence of student success ... referenced against credible national or international comparators’. TEQSA was satisfied that SAE met this criterion. The situation has not worsened since then – on the contrary, Dr McMillan’s evidence shows that SAE’s student performance metrics have generally improved or stayed about the same, notwithstanding the impact of COVID-19 on some of those metrics (particularly those relating to student experience).
47.Mr Wells and Professor Calford (and Dr McMillan) have compared appropriate metrics of SAE’s student outcomes against non-university higher education institutions (NUHEIs) and the higher education sector as a whole (including universities). Those comparisons show that in many metrics, SAE’s student outcomes compare favourably with other providers, including being at or above the level of several providers in the Australian University category, to which an identical criterion to B1.2.4 applies. In particular:
a.SAE’s attrition rates as reported by the Department of Education are significantly below (i.e. better than) the national average rate for NUHEIs, and have been for four of the last five years. SAE’s attrition rates in 2019 (the last year not affected by the COVID-19 pandemic) were also better than approximately one-third of universities and two-thirds of non-universities. That is so notwithstanding that the calculation of SAE's attrition rates are likely to be affected adversely by its trimester model. Further, SAE’s attrition rates have improved in the order of 25% over the last five years. In cross-examination, Professor Deane acknowledged (eventually) that even she was satisfied that SAE’s attrition performance amounted to ‘strong student outcomes’ over the last three years. This again highlights just how limited the differences are between the experts’ views;
b.SAE’s four-year completion rates as reported by TEQSA for the last three reported cohorts are above the total for NUHEIs (domestic students), and those for the preceding three cohorts were not substantially below. In any event, in the opinions of Mr Wells and Professor Calford, this completion rate data is not a reliable basis for comparing student outcomes;
c.Further, SAE’s progression rates as defined by the Department exceeded those of between one-third and three-quarters of universities in 2019, 2020 and 2021 (notwithstanding the last two of those years being affected by COVID-19). Again, SAE’s progression rates have improved significantly in recent years. Professor Deane does not address progression rates and had to acknowledge that this was a ‘gap’ in her analysis; and
d.SAE’s student experience metrics have been above – and in 2020 were well above – those for all higher education providers and those in the Creative Arts and Computing and Information Systems study areas over the past four reported years, with particular significant metrics (including skills development, learner engagement, teacher quality, student support and learning resources) also being well above those of all NUHEIs over the past four reported years. SAE's overall Student Experience Survey results were better than almost all Australian universities in 2021, and most Australian universities in 2018-19. The fact that SAE’s student experience results remained high during the COVID-19 pandemic, in which other providers’ student experience results typically dropped sharply, attests to the high regard in which SAE is held by its students.
48.The only measure in which, on Mr Wells’ and Professor Calford’s analysis, SAE’s student performance appeared to fall below the average of comparable institutions in a material way is in reported graduate employment outcomes as measured by Quality Indicators for Learning and Teaching (QILT) data. However, the most recent QILT data (which Professor Deane accepted) shows approximately 96.1% of the former SAE students surveyed either in employment or in further study. Professor Calford’s unchallenged evidence was that SAE was above the average for both NUHEIs and university providers in 22 of the 24 QILT scales and only marginally below in the other two, and that in his opinion this amounted to ‘extremely strong performance’. Professor Deane agreed that this was a strong student outcome.
49.Further, it is necessary to contextualise even the bare employment results:
a.First, SAE’s full-time employment rates are still comparable to or better than those of several universities in the Creative Arts study area.
b.Second, SAE graduates appear to find either full-time employment or full-time further study at a combined rate that is above a number of the public universities. Professor Deane’s analysis does not take into account full-time further study as a positive graduate outcome.
c.Third, the QILT data has several shortcomings as a measure of a provider’s performance:
(i)     it does not take into account different student demographics and characteristics, noting that SAE’s student demographic is such that it may be expected to be comparatively harder for SAE to achieve higher student performance results;
(ii)    the relevant surveys are implemented four to six months after graduation, at which time many graduates are still transitioning to the labour market. Professor Deane accepted in cross-examination that this was an ‘arbitrary’ timeframe;
(iii)   it is not a measure that necessarily reflects on the quality of teaching and learning at the institution; and
(iv)   creative arts is the field with consistently the lowest rates of full-time employment post-graduation, and in which formal qualifications tend to be less important in obtaining work.
50.Qualitative surveys of SAE graduates have returned positive results. For example, in a 2021 survey of SAE graduates, 81% of those who responded agreed or strongly agreed that SAE equipped them with technical skills, and 75% agreed or strongly agreed that SAE equipped them with professional skills. Graduate satisfaction by at least one metric also exceeded the national average in the Creative Arts and Computing and Information Systems study areas in 2020-21. SAE’s employability strategies also benchmark highly, including against universities.
51.There are substantial areas of agreement between the experts on this criterion. In the Joint Expert Report, the experts agree that SAE has been demonstrating improvement with respect to attrition indicators, and has put in place strategies to support improvements in student outcomes. Professor Deane does not dispute that SAE has a track record of at least five years of successful delivery – in those circumstances, and in circumstances where Dr McMillan was not cross-examined, TEQSA’s opening to the contrary has no evidential foundation. Professor Deane also accepts in the Second Deane Report that SAE:
a.‘has a long history of delivery of higher education programs, with no history of regulatory problems’;
b.‘shows continuing improvement in attrition’ and had no issue with the last three years of attrition data (which she confirmed in cross-examination);
c.has an attrition rate better than one existing University College (Alphacrucius College); and
d.‘has put in place a range of strategies to support student success’.
52.Professor Deane also accepts that a provider’s strategies to support student success ‘are important inputs into the system and should be considered in the overall context of analysis of institution performance’, and that in relation to employment rates there are ‘significant factors outside the control of SAE influencing this outcome’.
53.Professor Deane made further significant concessions on this criterion in her opening presentation and in cross-examination. In particular, Professor Deane:
a.agreed that she did not take issue with any of the calculations performed by Mr Wells and Emeritus Professor Calford;
b.accepted that SAE ‘largely sits close’ to the sector average and had been improving;
c.walked back from her use of the National Institute of Dramatic Art (NIDA) and the Australian Film, Television and Radio School (AFTRS) as comparators, characterising them instead as having ‘aspirational’ outcomes, which she accepted it was not necessary for a provider to meet before they could be regarded as having strong student outcomes;
d.accepted that it was appropriate to consider Australian Universities in the analysis of strong student outcomes, but that she did not feel she had the expertise or knew enough about university data to comment on SAE’s student outcomes in comparison with Australian Universities;
e.agreed that she performed no analysis of student progression, despite it being an important measure of student outcomes and one in which SAE had better results than three-quarters of universities; and
f.as set out in paragraph 39 above, accepted that it was necessary to consider the institutional context and student demographics in evaluating student outcomes.
54.In light of these concessions, it is difficult to identify a rational basis for any remaining disagreement that Professor Deane has with Mr Wells and Emeritus Professor Calford. On any reasonable assessment, SAE has strong student outcomes on attrition, progression, graduate outcomes and student experience.
55.The disagreement (to the extent that it truly exists) appears to reduce to the proposition that SAE does not exceed the average student outcomes of her preferred comparator institutions on all of the metrics she identifies as being relevant. However, the focus on averages is flawed:
a.as a matter of the proper construction of the criterion, for the reasons in paragraph 41 above; and
b.as a matter of logic, because it would imply that half of the providers in a given category would not have strong student outcomes when compared against their peers in the same category – which would have the absurd result that those providers do not meet what TEQSA says are the criteria for being admitted to the category.
56.Further, despite recognising in the First Deane Report that strong student outcomes would ‘[a]rguably’ be demonstrated by ‘achieving at least sector average on employment, completion and attrition levels closer to the sector average and preferably above’ (emphasis added), in the Second Deane Report Professor Deane says that ‘[a]rguably being at sector average does not demonstrate strong student outcomes’. This shift in opinion is unexplained, and remained unexplained after cross-examination.
57.To the extent TEQSA seeks to maintain reliance on Professor Deane’s data analysis despite her concessions, SAE submits for completeness that there are five reasons why that approach is flawed.
58.First, Professor Deane’s comparisons do not include Australian Universities other than in one attrition calculation (where two Australian Universities are included) and one student feedback calculation (where four Australian Universities are included). But, as Professor Deane conceded, it is not appropriate to exclude Australian Universities from the comparison given that, as set out in paragraph 47 above, an identical criterion to B1.2.4 applies for registration in that provider category. The exclusion of Australian Universities would result in a different (and, in this case, higher) standard being applied for entry to the University College category than for entry to the Australian University category. This cannot have been intended, especially when it is apparent, for example from criterion B1.2.11 and the criteria for a greenfield University College in B1.2.13 to B1.2.18, that the Australian University category is at a higher level in the hierarchy of provider categories. It would also result in the exclusion of the category of provider that, as Mr Wells said, teaches over 90% of higher education students in Australia.
59.Professor Deane’s evidence in cross-examination, that she did not 'feel expert enough' or have sufficient knowledge of university data to perform the relevant comparisons, casts serious doubt on the validity of Professor Deane’s analysis as a whole.
60.Second, to the extent Professor Deane seeks to compare SAE against University Colleges, those are an unstable and arbitrary comparator. They are an unstable comparator because, in circumstances where at the time of the experts’ reports there were only five University Colleges, the reference points for a given indicator can be expected to change significantly whenever any new provider enters the University College provider category. An analysis performed by reference to a tiny sample size is statistically less reliable. University Colleges are also an arbitrary comparator because the standard to be applied to a given provider depends on the coincidence of the order in which they are assessed for entry to the category.
61.For example, if SAE had its application to change provider category assessed before NIDA and AFTRS, the comparison on Professor Deane’s logic would be entirely different. Similarly, Professor Deane’s approach could not apply to the first entrant to the University College provider category, or to any entrant delivering courses in a field of education not delivered by the existing University Colleges (which currently deliver courses in narrow fields relating to creative arts and theology). This is particularly problematic in circumstances where all self-accrediting non-university providers (including SAE, NIDA and AFTRS) were invited to apply to the University College provider category at the same time, such that the order of admission to the category was entirely within TEQSA’s control. The instability and arbitrariness of Professor Deane’s approach tells against it being a proper approach to the application of criterion B1.2.4.
62.Third, it is also arbitrary to select appropriate comparators by reference to only one characteristic – field of education (Creative Arts or IT) – without considering other characteristics such as the provider’s size, student demographic and/or level of funding. On the face of it, those other characteristics are also relevant to identifying what counts as ‘strong’ student outcomes in a provider’s context. Professor Deane does not explain why she says field of education provides the only touchstone of comparison.
63.Fourth, NIDA and AFTRS are, in any event, inappropriate comparators because:
a.they have rigorous selection criteria and are heavily oversubscribed, with the result that only the highest-performing students are admitted;
b.they receive substantial government funding over and above course fees to which SAE does not have access;
c.their enrolments are more heavily weighted toward programs at higher AQF levels; and
d.their courses, while having some overlap with SAE’s, have a different focus – on dramatic arts in the case of NIDA, and media arts in the case of AFTRS, compared with animation, games design, graphic design and music in the case of SAE. As Mr Wells described them, NIDA and AFTRS are more accurately described as ‘elite arts training academies’ than typical higher education providers in the creative arts field.
64.If NIDA and AFTRS were appropriate comparators, the practical consequence would be that it is almost impossible for any other provider in the Creative Arts field of education to enter the University College category. Certainly no provider without similarly selective admission processes and funding could enter. In turn, that would have the consequence of favouring elite, selective and highly funded institutions (which are able to achieve higher student outcomes for those reasons) over providers such as SAE that have a larger student cohort, serve a much wider student demographic and receive no equivalent funding. That is antithetical to the concept of a ‘standards-based quality framework’.
65.It is surprising that the regulator of the higher education sector would be advancing a position that is plainly contrary to the promotion of equality, diversity and fairness in the higher education system including access to higher education for more diverse student populations. Indeed, one of the objects of the TEQSA Act is to protect and enhance ‘excellence, diversity and innovation in higher education in Australia’. And the Coaldrake Report, relied upon by TEQSA, described the provider category that has become the University College category as being in part to facilitate diversity, differentiation, innovation and expansion of the higher education sector.
66.For these reasons, the evidence of Mr Wells and Professor Calford (and Dr McMillan) should be preferred to that of Professor Deane. On Mr Wells’ and Professor Calford’s approach, having regard to SAE’s institutional context, SAE’s student outcomes can fairly be described as strong, coupled with its (unchallenged) history of successful delivery, over at least five years.
67.In any event, even using Professor Deane’s selected range of comparator institutions, the Second Deane Report identifies that most of SAE’s student performance metrics are comparable to or at the median of those comparators (other than NIDA and AFTRS). Once those inappropriate comparators are given less weight, SAE should be found to meet criterion B1.2.4 even on Professor Deane’s analysis.
68.SAE makes two final points in relation to this criterion.
69.First, TEQSA and Professor Deane have raised some concerns that SAE’s approach to measuring performance does not allow for appropriate benchmarking using Department or QILT data. It is unnecessary to resolve this criticism given that the Tribunal has the expert opinions of Mr Wells and Professor Calford as to the appropriate student outcomes metrics and methodologies for assessing them, in a detailed and rigorous way. In any event, as Dr McMillan and Mr Wells observe, difficulties of comparison are created by the facts SAE operates on a trimester model and that different sources of data use different reporting or aggregation periods. No methodology is perfect. However, to seek to meet these difficulties, student performance data is reported regularly and in various forms to SAE’s Academic Board and other relevant governing bodies. Dr McMillan’s affidavit also includes comparative student performance data using a variety of data sources and methodologies, as does the Wells Calford Report.
70.Second, in assessing this criterion, the Tribunal should take into account that SAE has implemented a range of policies, plans, strategies and initiatives to seek to support students and further improve student outcomes with a particular focus on seeking to improve graduate outcomes. These policies, plans, strategies and initiatives are themselves part of evaluating whether a provider has a history of successful delivery with strong student outcomes.
71.That is especially so for providers such as SAE which provide specialist education in fields with comparatively poorer or less qualification-based employment opportunities – a matter outside the provider’s control – and offer that education to a broad and diverse demographic rather than a selectively ‘elite’ demographic. For such providers, due weight should be given to the framework they have in place for supporting their students to achieve good outcomes notwithstanding the challenges they may face, and for monitoring and seeking to improve those outcomes within the limits of what is practicable having regard to the nature of the field. No challenge is or has been made to SAE’s processes in this regard. Their utility is demonstrated by SAE’s trend of improvement in its student performance measures over the past several years.
[Footnotes omitted][70]
[70]    The Tribunal notes that the Applicant provided significant footnoting outlining the documents referred to. The Tribunal has had regards to those references.

The Respondent contended that even on the Applicant’s expert’s analysis there was no evidence to show that the Applicant has five-years of strong student outcomes. The Respondent contended that:[71]
… if you were to find that there’s some reason why the five-year records should be something else, or if you were to rely on the very qualitative approach taken by Mr Wells and Professor Calford with some qualifications, then the difference between the experts will need to be resolved. The difference in principle between the experts is really this, is being around average a strong outcome? Professor Deane, by reference to the average for the non-university higher education institutions specifically, says being around the average for that sector, particularly against the comparators who are closest to SAE, is not enough to show that additional quality, the high performance that is required to get into the university college category.
Professor Calford and Mr Wells say that being around average is enough, in context, in this case, and that’s the essential difference of principle between the experts.
That context point is important, because on the one hand, Mr Wells and
Professor Calford say context is everything, but on the other hand, when they do, do the statistical analysis, they do it on an absolute sector wide basis, and as I’ll come to when I come to the specific indicators. Particularly when they’re comparing to the universities, they say it’s enough that SAE is doing better than some number of universities, which varies on the various indicators, to be a strong outcome because universities also have to demonstrate that strong outcome.
But if context is everything, then you would need to understand the full context for each of those universities as well, in order to understand whether SAE really is outperforming them, or whether there is some other basis for saying that in those universities’ context, that is a strong student outcome for them, and you don’t have that context for those universities.
And that’s why in TEQSA’s submission, the better approach is to take the middle ground that, respectfully, Professor Deane has taken, which is to say, yes, there has to be some comparison, otherwise, how do you know if it’s strong? But the comparison should take account of context, and the context which Professor Deane identified as the most important, was looking at similar institutions, in the sense of both fields of education, and size. Now there aren’t many of them, it can’t be a proper statistical analysis, but it is enough for the – Professor Deane and for the tribunal to look at a fairly broad-brush level.
And fundamentally, going through the indicators as a whole, my submission will be, as Professor Deane said, it’s sitting around the average of the non-university higher education institutions in those fields of education. And more importantly, around the particular comparators that Professor Deane has identified, and which, and I’ll take you to the evidence shortly, which Dr McMillan gives evidence that SAE sees as appropriate benchmark comparators.
So when one has regard to that, SAE’s sitting around those other bodies, it is not a standout performer, it is not a high performer, it doesn’t have that additional element of quality or excellence that is beyond what would be expected for an IHE, and necessary to get into the university college category. And that’s the overarching theme for the indicators.
[71] Transcript, pages 175-176.
The Respondent contended that the unstated question in the analysis of Mr Wells and Professor Calford’s analysis is “why is performing mostly around average, sometimes a bit below, sometimes a bit above, why is that enough to demonstrate strong student outcomes.”[72] The Respondent contended that although not a question of onus the Tribunal has to be satisfied that the Applicant demonstrates strong student outcomes.[73]
[72] Transcript, page 182.
[73] Transcript, page 182.
The Respondent took the Tribunal through its analysis of the comparisons in relation to the factors considered to assess strong student outcomes by reference to the expert witnesses evidence and contended that the Tribunal should prefer the evidence provided by Professor Deane The crux of the Respondent’s contentions relied on the opinion of Professor Deane that having student outcomes that are in line with sector average do not demonstrate strong student outcomes and do not “stand out from the pack”. The Respondent contended that to demonstrate strong student outcomes the Applicant would need to demonstrate that it stands out from the pack.[74]
[74] Transcript, pages 182-189.
The Respondent further contended (when considering attrition rates) that there was a time lag in the information available as it does not extend past 2021 and that it cannot be said that because the data for 2019, 2020 and 2021 was good that you can assume it was good for 2022, 2023. The Respondent submitted that in relying on trend it is a five-year trend of improvement that needs to be shown, so improvement that commenced in 2018 cannot based on the evidence before the Tribunal show a five-year trend of improvement.[75]
[75] Transcript, pages 184-187.
The Applicant in reply contended that the word demonstrates used by the Respondent in reference back to criterion B1.2.2 of Part B1.2 of the Threshold Standards – ‘Demonstrates a mature level of development’ really means ‘exhibits’ it does not impose a burden of persuasion on the Applicant.[76]
[76] Transcript, page 207.
The Applicant further contended that a five-year track record of strong student outcomes has been shown and outlined:[77]
[77] Transcript, pages 209-214.
…appendices 1, 2 and 3 to the joint report of Professor Calford and Mr Wells include time series which go back to 2015, 2010, and 2005. You have, Member, a substantial history, and also from Dr McMillan. That dataset goes back as far as it can.
True, it is, that the data becomes difficult in the COVID years. True, it is. But given that these standards were imposed in 2021, in six colleges – and I’ll take your Honour to one of those in a moment – I’m sorry, I’ll take the tribunal to one of those in a moment. Six colleges have managed to satisfy these criterion since then, off the back of data which is difficult to construe. It cannot be the case that this stands as a block to an applicant like SAE or anyone from demonstrating five years of strong student outcomes.
And I’m sorry to be repetitive, but TEQSA was satisfied in 2020 of five years of student success; five years of student success in 2020. How it is we are not here suggesting that in 2023, by reference it seems now only to a data lag, that we – that SAE does not meet strong student outcomes in those circumstances is, respectfully, bewildering.
My friend posed the question in this way when looking at the actual numbers and the methodology to be deployed – and I hope it allows me to crystallise the position in a way that will assist the tribunal. Our friend said that the difference in view between Professor Deane and the other experts was the question of whether being ‘around the average’ amounts to a strong outcome.
And our friend said, ‘Professor Deane’s view is that it does not, and part of the justification of that was because, going back to the Coaldrake report, one must stand out; one must be in the top of the – one must be in the top 8 in the English Premier League; they have to be there to be able to stand out.’ That’s the proxy, apparently. And it was set up in argument as being a powerful point of difference between Professor Deane and Mr Wells.
Well, can I read, please, to the tribunal the concluding paragraph which I took her to yesterday of Professor Deane’s first report at page 424, the first report which is at tab 5. And it says this:
Overall, based on DESE, QILT, and TEQSA data, it can be concluded that SAE does not as yet deliver strong student outcomes. Arguably, this would be demonstrated by achieving at least sector averages on employment, completion, and attrition levels, close to the sector average and preferably above, for consideration as a university college.
It is, respectfully, astonishing that, in a closing by a regulator, we’re now at a point where something is being set up as being the key difference, the key reason, why a strong student outcome should not be met in circumstances where its own expert said, ‘Arguably, this would be demonstrated by achieving at least sector averages’ on those things.
And the extent to which Professor Deane moved away from that in her second report, and understandably wouldn’t grasp back onto it when I was asking her questions in cross-examination, simply shows why – or the fact that – and I’ll explain why in a moment – the fact that the use of averages in this context, in the way in which Professor Deane and TEQSA are trying to deploy them, are so logically, fundamentally flawed. And as I say, it allows me to crystallise it much better having our learned friend’s submission.
You see, there are a number of logical errors that are made in the argument. Concluding that a comparison is necessary as part of the process of determining whether an institution delivers strong student outcomes does not mean, ipso facto, that averages are relevant or are a necessary conclusion of that process.
One can do a comparison, as Mr Wells and Professor Calford did, without saying, ‘And there’s a number which we happen to choose by use of the statistical method of the identification of an average. Why not a median, why not a mod, who knows, but why we wouldn’t do it that way.’
Averages are not necessary as a – as a test simply because one is doing a comparison. And the notion that – and this is at the heart of the error that TEQSA makes – that the threshold standards require one to ‘stand out from the pack’. ‘Stand out from the pack’. That is the fundamental error, and that’s not the test.
This a standards framework as we’ve set out, a standards framework. Everyone might have strong student outcomes. Identifying a cohort and picking an average tells you nothing, unless you know something about whether that cohort overall meets those standards. The joy for us is that with one of those cohorts we do, and that’s the universities cohort.
We know, because TEQSA has, by its threshold framework and by presumably its decisions not to relegate – to use our friend’s – our friend’s language – know that, at least – there might be some bad players, but we should know, at least, that those – the university sector comply with strong student outcomes for five years. That is such a great cohort as well, because it’s 90 per cent of students going through higher education in Australia.
So essentially, of all of them – and they’ve all got their problems – it’s one that makes – it’s one that makes perfect sense. And on each of these measures, each of these measures being average within that cohort, does not tell you – does not suggest that you are not strong student outcomes; indeed, logically, it tells you that you are.
As a matter of pure maths, if the first proposition is right, then just being one up from the bottom would tell you that. But we’re not there. SAE is a lot higher than that; indeed, better than two-thirds of universities, for example, on progression rates in 2020.
So within a cohort where we actually know that character by virtue of TEQSA’s own decisions as a regulator, we have the best possible logical comparison to the extent that there is one.
You see, if that feature, though, is not present, that is that the population of the cohort of the comparator that one is talking about, if you don’t know where that cohort sits in terms of having strong student outcomes, then averages become meaningless; utterly meaningless; indeed, they become destructive, and I’ll explain why in a moment.
And that is because you don’t know if the average of that population equals strong or not. You just don’t know that – the answer to that question. It might be, depending on the cohort, that all of them do, or it might mean that all of them don’t. And so if all of them don’t then being above average doesn’t tell you anything about your own quality or the quality of the – of the applicant you’re trying to deal with. And if they all do but you happen to sit at the bottom, then you’re being unfairly excluded just by nature – the virtue of the cohort.
And that’s why, again – and this is just statistics – the smaller the cohort, the harder it is. And so the cohort, ultimately, that TEQSA wriggles itself into is JMC, Collarts, and maybe AMM. And that’s it; three. Because as we’ll have seen, we’ve given up NIDA, it would seem. We’ve given up the others that are nowhere near comparable, and we’ve come back to three.
Can we just do a thought experiment on that for a moment. How good are JMC and Collarts and AMM? The short answer is, we don’t know. If we’re at the average of them, we might be at the average of a group that are really, really good. Indeed, when you look at their numbers and compare them to the university sector, they all look really, really good. So it may well be that they all demonstrate strong student outcomes. So sitting at about where they are tells you, actually, in that context, that they’re – that they’re good.
See, the difficult with this is – and a great way of – I’m sorry, I’ll – and that approach utterly destroys the purpose of the regime. If the purpose of the regime is about quality – it’s about standards, which is what it is – or even if it’s about aspiration and excellence, then why would you, we would ask rhetorically, choose a methodology that means, as I will demonstrate, a methodology that means that you will either be – you could either be promoting the very bad or not promoting the very good.
Because if you pick a low-performing cohort and you take the average of that, then people will get in far too easily. If you pick a high-performing cohort, then it’s hard to get it because you’ll be below the average; but below the average may well still represent strong student outcomes, and again that’s why the university cohort is such a powerful one. And that undoes the entire purposes of a standards framework.
It also, even on the evidence before this tribunal, is not what TEQSA does. But a regulator coming to this tribunal setting higher standards, it would seem, for SAE than others that they have let through – and Alphacrucis College was one of the ones that our friend referred to in respect of there is data before the tribunal.
Alphacrucis College is a university college; it’s one of the theological ones that was referred to by Mr Wells, one of the new six colleges, four of whom – four of which are the theological colleges. And Alphacrucis, as we know, must necessarily have been granted that status post-2021, because it’s only existed since 2021. So as a matter of logic, that must be so.
But if we go, for example, to attrition as a measure in that regard, at page 665, which is tab 9, it’s the joint report, we see an attrition data table including Alphacrucis College as the second from the bottom which – whose five-year change represented a 104 per cent increase in attrition rates, and whose six-year change a 35 per cent in the wrong way trend, and whose numbers over the relevant years, 2019 and 2020, were 56 per cent and 37 per cent. So they’re in the university college category. They’ve only just gone in, and they’ve got attrition rates and trends dramatically worse than SAE’s.
So this is a regulator, one would expect, who come to this tribunal proposing something which involves some level of consistency of averaging is the way in which we’re going to deal with things. Who were they compared to? Well, we can see, because the other theological colleges were nothing like as bad as them. So how does Alphacrucis get in? Presumably because some non-averaging based process was taken. Now, as we say, the way in which – the reason why the problem exists is because TEQSA has made submissions which use not the words of the threshold framework itself, but a proxy which is standing out from the pack. And if you’re going to have a pack and you need to stand out you’re going to have to know what the pack is and you’re going to have to then identify that someone is standing out from the pack, and it just isn’t the test and it can’t be.
In any event – and finally on this topic – the assumption that was implicit in the way in which our friend kept putting things, that SAE is around the average on these indicators is simply wrong. I took you through why that was so this morning and it’s in the written submissions. And that’s the reason why universities are such a great group, because they can be assumed to meet that standard and on the key measures, in particular progression and attrition, as the data which Professor Deane accepted and I took you through this morning accepts, we are well above them.
Our learned friend tried to deal with the problem that emerges from TEQSA’s own analysis which is that on its own analysis three quarters of universities – three quarters of universities – are falling below the progression indicator for strong student outcomes. And our friend says in response, and there must be a response of course, the response is oh but we don’t know about those universities. Again this is the joy of statistics, is that a very big sample will tend to give you a better answer than a very small sample. But what it also demonstrates is the critical importance of context, demographics and qualitative analysis which is where the assessments of the experts become really valuable to your Honour – to the tribunal – quite apart from the individual data analysis that occurred.
So respectfully if we are – SAE is around the average which was the presumption that was made and therefore not standing out from the pack, that on the basis of Professor Deane’s first report at least arguably, we met the strong student outcomes answer anyway.
Progression rates, again there was no dispute as to the data on progression rates and we are better than three quarters of universities in that regard recently. And then on attrition rates what our learned friend did was, respectfully, cherry-pick the data in a way that doesn’t permit the tribunal to come to a proper conclusion, failed utterly on attrition rates to refer to universities and referred only instead to JMC, Collarts and AIM which respectfully as a matter of logic and force are a nonsensically small cohort to be able to make any analysis on averages at all. If a 12-year-old asked me what the average of something from a sample of three is I’d say go and get me a bigger sample. You’d hope a regulator would do better than that.
And part of the response on demographics seemed to be look they’re really hard. Context is really hard so let’s ignore it. Well again that’s problematic. Everyone understands that demographics are hard. But they also understand that they’re easy in a – they’re hard in a detail sense but they’re easy in a general sense. Students from the backgrounds that predominate at SAE start from a lower base and so success looks different from students who end up at NIDA or the University of Sydney or Melbourne or wherever else it might be. So you can’t ignore demographics even if getting it down to a completely granular level is impossible.
So our respectful submission is firstly the tribunal would apply the right test. That is recognising this is a standards framework which doesn’t require people to, quote, stand out from the pack, close quote. To the extent that there’s a pack that one should compare with the best pack is universities because we know they meet these criteria and SAE performs really well against universities within that pack. It does not look out of place. Which is probably a better way of putting the test in our respectful submission. And then on each of those measures, both the trend and the data set and the absolute numbers are ones that give confidence to the conclusions that the two experts for SAE coming as they did from their different perspectives came to that conclusion. And we invite the tribunal to agree with those conclusions not because they came to them, but because they are the correct conclusions.

There is no dispute that the Applicant has a history and as such a track record of at least five years of successful delivery, it is the association of that successful delivery with strong student outcomes that is being disputed.
There is no definition of ‘strong’ or ‘strong student outcomes’ in the Threshold Standards or the TEQSA Act. There is only a reference in criterion B1.2.4 of Part B1.2 of the Threshold Standards to how student outcomes can be measured.
As such in considering whether the Applicant has a history of at least five years of strong student outcomes the Tribunal has had regard to the methodologies used and resulting opinions provided by the expert witnesses. As a result the Tribunal is persuaded by the contentions outlined by the Applicant above in that it considers the methodology employed by Mr Wells and Emeritus Professor Calford to more appropriately reflect a reasonable assessment of attrition, completion and progression rates, student experience metrics and reported graduate employment outcomes. Their approach in the Tribunal’s view balances the need for context, comparison across comparator sectors, looking at different categories of comparators and the nuances of the target market. It is noted that although Professor Deane did not agree with Mr Wells and Emeritus Professor Calford’s opinion she also did not take issue with any of their calculations and accepted that in relation to employment rates there are significant factors outside of the Applicant’s control that influence the outcome.
The Tribunal having reviewed the material before it agrees with the conclusions reached by Mr Wells and Emeritus Professor Calford with regards to the factors taken into account to evaluate strong student outcomes. The Tribunal finds that on balance the evidence shows that the Applicant has shown at least 5 years of strong student outcomes.
Professor Deane in accepting based on her analysis that the Applicant largely sits close to the sector average and had been improving, opined that sitting at sector average did not constitute strong student outcomes. The Respondent contended that it was a matter for the Tribunal to determine whether sector average results against the factors being assessed to determine student outcomes can be considered strong student outcomes. The Respondent contended that better than sector average outcomes are required to be a standout performer.
Mr Wells and Emeritus Professor Calford opined that sector average results in relation to the factors being used to assess student outcomes is enough to demonstrate strong student outcomes.
In the Tribunal’s view if Professor Deane’s methodology was accepted in relation to criterion B1.2.4 of Part B1.2 of the Threshold Standards it would not have been fatal to the Applicant on the basis that the Tribunal does not accept the argument that average can not be strong or that the criterion in Part B.1.2 of the Threshold Standards can only be met by a provider that ‘stands out from the pack’ which to establish requires better results across factors of comparison. To take such a view would be contrary to the operation of the TEQSA Act and the criteria set out in Parts B1.2 and B1.3 of the Threshold Standards as it could imply that after registration or reclassification as a University College or as an Australian University a higher education provider may not be able to continually meet the Threshold Standards unless all providers were deriving the same student outcomes. Given that a number of higher education providers who hold Australian University status have had conditions placed on their registration at renewal the Tribunal can not accept the contentions made by the Respondent or opinion provided by Professor Deane.
The Tribunal is satisfied on the evidence before it that in considering the historical data and evidence provided by Dr McMillan, Mr Wells and Emeritus Professor Calford that the Applicant has exhibited a history of at least five years of strong student outcomes, when considering the data between 2015 and 2020. Having made the findings above with regards to the factors being taken into consideration in assessing student outcomes, the Tribunal does not agree with the Respondent that only a trend of improvement will show strong student outcomes. Given the overall consistency of the data leading up to improvements from 2018 or in some instances slight declines the Tribunal does not consider this to reflect something other than strong student outcomes, albeit it shows that the strength of those outcomes are also improving. Such improvement is what is to be strived for. However, improvement does not automatically mean that prior performance was not strong, particularly given the Applicant’s ongoing compliance history and status within the sector.
Further, the Tribunal notes the Applicant made reference to the requirements that it met in being granted self-accrediting authority status as demonstrating that the Respondent was satisfied in 2020 that it had demonstrated successful student outcomes. The criteria set out in the Higher Education Standards Framework (Threshold Standards) 2015 (Cth) (the 2015 Threshold Standards) for seeking authority for self-accreditation of courses of study are that:
2.A provider that is seeking authorisation to self-accredit a nominated course(s) of study as specified in 1a – 1e above is able to demonstrate:
a.    sustained and sustainable achievement of all of the Standards for Higher Education (Part A) that apply to the provider, including for course approval processes in particular and any delivery arrangements with other parties
b.    there are no unresolved compliance matters with TEQSA, or conditions outstanding from the most recent registration and course accreditations by TEQSA or a recognised registration or accreditation authority, and there is no history of significant continuing compliance problems in any other assessments, audits or reviews of its higher education operations conducted by TEQSA, professional bodies or government agencies
c.    a history over at least five years of successful delivery of the course(s) of study for which self-accrediting authority is sought, which is supported by evidence of student success based on analysis of trend data including completion rates and times, attrition rates and grades awarded that are referenced against credible national or international comparators and encompass at least three cohorts of graduates from each course of study
d.    where a cycle of review and improvement is required by the Standards for Higher Education (Part A) in relation to courses of study and their oversight (see Table 3), the provider has, in relation to all course(s) of study proposed for self-accreditation:
i.completed at least one cycle of review and improvement in relation to all relevant standards
ii.demonstrated successful implementation of evidence-based improvements arising from the reviews, and
iii.has established these review and improvement activities as effective sustainable features of the provider’s operations across all courses of study.
[Emphasis added]
The Applicant contended[78] that the Respondent’s satisfaction as to the requirements set out in the 2015 Threshold Standards was based, among other things, on the opinions of several experts and the Applicant’s positive regulatory history.[79] The Applicant submitted that Mr Wells, expressed the opinion based on his experience that the granting of self-accrediting authority is ‘reserved for only the most mature an evolved non-university providers on presentation of evidence to TEQSA.’[80]
[78]    Applicant’s Closing Submissions, page 5, paragraphs 13-14.
[79]    Exhibit 1, T Documents, T17, pages 47463-64, SAA Final Report and Decision.
[80]    Exhibit 2, Joint Hearing Book, Tab 7, page 451, Expert Report of Michael Wells.
The Respondent contended that:[81]
63. As a successful applicant for self-accrediting authority, SAE has been able to show a history of successful course delivery “supported by evidence of student success”. However, that is not sufficient to demonstrate that such delivery has been associated with “strong student outcomes”. That is a different and additional requirement necessary in order to demonstrate the standing and excellence to be classified as a “University College”.
[Footnotes omitted]
[81] Exhibit 2, Joint Hearing Book, Tab 3, page 50, paragraph 63, Respondent’s Statement of Facts, Issues and Contentions.
In granting the Applicant self-accreditation authority the Respondent found that the Applicant met the requirement of criteria 2.2c of the 2015 Threshold Standards.[82] The Respondent was satisfied that the Applicant had a history over at least five years of successful delivery of the courses of study for which it was seeking self-accrediting authority of which was supported by evidence of student success. The evidence of student success was derived by considering attrition, student performance, student experience.
[82] Exhibit 1, T Documents, T17, pages, 47472-47480, Assessment Report – Self-accrediting authority – reasons for decision.
While the Tribunal accepts that the requirements set out in Part B 2.1.4 of the Threshold Standards and the requirements of 2.2c of the 2015 Threshold Standards do not by nature of drafting fully align, there is however a significant overlap. Given the Tribunal’s findings above it does not in this instance need to explore the extent of such overlap, however notes that based on the information before it, it prefers the view outlined above by the Applicant and the opinion of Mr Wells.
For the reasons set out above, in balancing the evidence before it, the Tribunal is persuaded by the contentions and evidence presented by the Applicant. The Tribunal therefore finds that the Applicant has a history of at least five years of successful delivery with strong student outcomes for the purposes of the criterion B1.2.4 set out in Part B1.2 of the Threshold Standards. The Tribunal also finds that the Applicant has demonstrated a mature level of development and track record in the same regard.
B1.2.5 – mature and advanced processes
Criterion B1.2.5 set out in Part B1.2 of the Thresholds Standard requires that the higher education provider:
has mature and advanced processes for the design, delivery, accreditation, monitoring, quality assurance, review and improvement of courses of study and the maintenance of academic integrity.
It is noted that in the Joint Expert Report outlining the points of agreement and disagreement between the experts:[83]
(a)it was agreed that the Applicant has previously satisfied criteria for partial self-accrediting authority status, and this reflects a degree of regulatory confidence in its course development and review processes.
(b)Mr Wells and Emeritus Professor Calford are of the opinion that the Applicant has mature and advanced processes in place which is evidenced by practice and by changes in response to previous external reviews.
(c)Professor Deane is of the opinion that the Applicant’s documentation does not reflect mature or advanced process, and that this is evidenced in unclear policies, reports and meeting records. Professor Deane notes recent changes but is of the opinion that there needs to be ongoing evidence of embedding to demonstrate mature and advanced.
[83] Exhibit 2, Joint Hearing Book, Tab 10, page 689, Joint Expert Report.
The Applicant outlined their contentions in relation to this criterion as follows:[84]
[84]    Applicant’s Closing Submissions, pages 24-30, paragraphs 74-93.
74. The only parts of this criterion that are in issue are whether SAE ‘has mature and advanced processes for the ... accreditation, monitoring, quality assurance, review and improvement of courses of study’. TEQSA has raised no issue in relation to course design or delivery or academic integrity.
75.Professor Deane was given instructions as to the meaning of ‘mature’ and ‘advanced’ based on dictionary definitions. She was instructed that ‘mature’ meant ‘completed, perfected, or elaborated in full by the mind; relating to or characteristic of full development’, and ‘advanced’ meant ‘far on in progress; beyond the average’. These instructions were incorrect, for three main reasons:
(a)   First, it is inappropriate to define ‘mature’ and ‘advanced’ as though they sat in isolation from one another. The criterion uses the phrase ‘mature and advanced’. Each word must be given meaning in the context of the other, and must be given a meaning that acknowledges its connection to the other.
(b)   Second, and related, in the definitions instructed to Professor Deane, ‘mature’ entirely encompasses ‘advanced’: a process that is fully developed or perfected is complete in its progress and therefore, necessarily, past the point of being far on in progress. This means the definitions instructed to Professor Deane give ‘advanced’ no work to do. That is contrary to a general principle of statutory interpretation.
(c)   Third, the definition of ‘mature’ instructed to Professor Deane fails to engage with the fact that the criterion is one of mature and advanced processes. The concept of maturity of a process does not entail that the process or the product of the process is perfect or cannot be improved upon. That is an unrealistic approach to processes that operate in complex, real world systems. On the contrary, one would expect a mature process to embed processes and systems for self-reflection and continuous learning and improvement. Professor Deane accepted that she would understand maturity in this way.
76.For these reasons, the Tribunal would not find that ‘mature and advanced’ has the meaning given by the dictionary definitions instructed to Professor Deane. Rather:
(a)   A process is ‘mature’ when it has reached the stage of continuous improvement. This means the process is a set of steps directed at the relevant end specified in criterion B1.2.5 (design, delivery and so on) which is well-defined, lacking in material gaps and successfully implemented, with the effect that any work to be done in relation to the process is in the nature of continuous improvement –incrementally improving what is already part of the process – rather than completing or defining a process that is incomplete or ill-defined.
(b) A process is ‘advanced’ when it has a level of detail and sophistication such that it can fairly be described as advanced as opposed to basic, elementary or rudimentary.
77. These definitions are complementary but not fully overlapping, such that each concept in the phrase has work to do. They also acknowledge that the practical realities of processes in the real world of higher education mean those processes cannot be expected to be perfect, but they can and should be expected to embed mechanisms for continuous improvement.
SAE meets this criterion
78.Once the criterion of ‘mature and advanced’ is properly understood, there is no real dispute on the evidence that SAE meets it. It is important to observe that Professor Deane accepts that SAE’s processes are ‘advanced’ in the sense in which she was instructed: that is, far on in progress and beyond the average. SAE submits that this is, on a proper understanding of the criterion, a large step along the path of accepting SAE’s processes as being mature as well as advanced.
79.Dr McMillan describes in detail, in unchallenged evidence, SAE’s processes for the accreditation, monitoring, quality assurance, review and improvement of courses of study. These include:
(a)   comprehensive policies, procedures, guidelines, standards and frameworks covering the spectrum of course-related functions from course design and development, to accreditation, to teaching and learning, implemented within the framework of the ‘SAE Ethos’, which is an overarching framework developed to guide SAE’s approach to curriculum, learning and teaching across SAE’s courses in a consistent way;
(b)   the oversight of course-related functions by SAE’s academic governing body (the Academic Board) and various committees, including:
(i)the Learning and Teaching Committee, a sub-committee of the Academic Board that supports the Academic Board on strategic directions, priorities and quality assurance processes for learning and teaching;
(ii)Course Committees established for each discipline or set of disciplines, which provide industry and discipline-specific advice and guidance to the Academic Board in relation to course development and ongoing course reviews, including through stakeholder consultation, external membership where appropriate, and frequent reviews of student performance data, student and staff feedback, industry practice and changes in discipline scholarship;
(iii)Course Approval Committees established as sub-committees of the Academic Board on an ad hoc basis to give detailed consideration to new course proposals and major course reviews (as described below), which include external experts;
(iv)the Scholarship and Research Committee, which oversees scholarship and research at SAE;
(v)Assessment Panels, Student Progression Panels and External Examiners Panel, which support the Learning and Teaching Committee in providing oversight and advice in relation to assessment and progression; and
(vi)a Student-Staff Consultative Committee, which provides a direct mechanism for students at each SAE campus to provide feedback to campus leadership and the Academic Board on matters relating to student experience;
(c)   a multi-stage process for the development, approval and accreditation of new courses, including academic, industry and commercial input from both internal and external sources, under the oversight of SAE’s academic governing body (the Academic Board);
(d)   a process for conducting comprehensive reviews of each course of study (‘major course reviews’) in accordance with a course review schedule, considering matters such as course content, student performance, staff and student feedback, benchmarking against competitor courses and the requirements of the Threshold Standards, based on both internal review and analysis and external consultation;
(e)   a process for conducting regular (every three trimesters) ‘minor course reviews’ of each unit within a ‘Stage’ of a program under the auspices of Course Committees and the Scholarship and Research Committee, with a particular focus on ensuring currency of curriculum and student outcomes;
(f)    an overarching cycle of continuous monitoring, assurance, review and improvement of courses referred to as the ‘PIMRI cycle’;
(g)   a Learning and Teaching Policy which guides the implementation and quality assurance of teaching and learning processes and outcomes, including in relation to curriculum design, delivery and assessment, and processes for continuous improvement;
(h)   processes for receiving expert advice on SAE’s physical and virtual learning environments, including a Technology Steering Committee;
(i)    processes for benchmarking courses, student performance and outcomes and other activities and processes against competitors, the broader sector and best practice, using a wide range of data routinely collected by SAE; and
(j)    regular and systematic reporting to the Academic Board on student performance, in a variety of forms.
80. Dr McMillan provides evidence of SAE implementing these processes in practice, each over a period of years. The relevant frameworks, policies and processes have been in place for a long period: for example, the ‘SAE Ethos’ framework (or a predecessor) has been in place for around 10 years; the Course Approval and Accreditation Policy providing for the development, approval and accreditation (and re-accreditation) of courses has been in place since around 2016; and the Learning and Teaching Policy and Academic Quality Assurance and Improvement Policy have been in place for over 15 years. SAE has successfully developed and had accredited or re-accredited by TEQSA 45 courses since 2012, including 10 courses between 2016 and 2018 and 16 courses on 30 November 2020 (just prior to receiving self-accrediting authority), for the maximum period of seven years without conditions.
81.This long history of course design, development, accreditation, monitoring, quality assurance, review and improvement processes, translated into numerous successful course accreditations as well as TEQSA’s decisions to register SAE for the maximum period of seven years and to grant it self-accrediting authority in 2020, demonstrate the mature and advanced nature of those processes. In particular, having regard to the requirements of self-accreditation set out in paragraph 12 above, TEQSA could not and would not have granted self-accrediting authority to SAE if it was not satisfied that SAE had a mature processes for meeting the (predecessor) Threshold Standards including in relation to course approval and quality assurance.
82.Mr Wells and Professor Calford have identified a range of systems and processes that they consider a provider would typically need to have to satisfy criterion B1.2.5, and the relevant considerations in determining whether those systems and processes are mature and advanced. Having reviewed and analysed all of the evidence, Mr Wells and Professor Calford conclude that SAE has those systems and processes, and that they have the status of being mature and advanced. In particular, Mr Wells considers that SAE’s course design and development processes are at the level of sector best practice, and its processes around course delivery, assurance of learning processes, course monitoring, review and quality assurance meet or, on several cases, exceed sector practice. Mr Wells’ and Professor Calford’s detailed analysis is credible, founded on their extensive knowledge and experience in these matters, and should be accepted.
83.Professor Deane agrees that SAE’s satisfaction of the criteria for self-accrediting authority reflects a degree of regulatory confidence in SAE’s course development and review processes. Professor Deane also accepts that:
(a)   SAE’s policy settings for course development, approval and accreditation ‘support good and comprehensive internal and external review’;
(b)   SAE ‘has in place policies that support mature and advanced processes’;
(c)   SAE has followed its governance processes for course review and accreditation, and her concerns ‘do not necessarily reflect lack of the adherence to the policy and processes for course development, monitoring and review’;
(d)   SAE’s processes can be classified as ‘advanced’; and
(e)   ‘external expertise is extensively used in SAE course development and review associated committees’.
84.Having accepted those matters, Professor Deane’s only concern is with the clarity and detail of some of SAE’s documentation of how it implements the relevant processes. And, based on her oral evidence, it seems that Professor Deane’s concerns about documentation are centred upon a single document (the Course Design, Review and Approval Guidelines (Course Guidelines)), an issue she has with the comprehensiveness of the minutes of meetings of SAE’s Academic Board and some of its committees, and the form of external expert reviews received by SAE. SAE makes five submissions about these concerns.
85.First, it is apparent that Professor Deane’s conclusion that SAE does not meet criterion B1.2.5 is based on a narrow concept of what constitutes ‘mature’ processes, which requires a provider to meet a standard approaching perfection in its documentation. This approach is highlighted by Appendix 2 of Professor Deane’s report, which is focused on concerns with terminology, drafting clarity and cross-referencing in SAE’s Course Guidelines, rather than their substance (which Professor Deane appears to agree is acceptable), or whether they are complied with (which Professor Deane appears to agree they are).
86.This narrow concept of maturity should not be accepted for the reasons in paragraphs 75 to 77 above. The matters of drafting quality raised by Professor Deane are fairly described as matters of continuous improvement, rather than as indicating a process that is incomplete or not properly defined. Provided that the relevant policies and processes are understood and have been successfully implemented over a sufficient period or volume of courses – as Professor Deane accepts they are – there is no impediment to concluding that those policies and processes are mature.
87.Second, this is (at best for TEQSA) a matter on which reasonable minds can differ, given that Emeritus Professor Calford found no difficulty with the Course Guidelines document.
88.Third, in relation to minutes, the guidance from the Australian Institute of Company Directors (AICD) that TEQSA describes as ‘definitive guidance’ says only that minutes should include ‘the key points of discussion and the broad reasons for decisions’, and need not repeat the details of board papers. On any fair view, SAE’s minutes meet this standard. As Professor Calford said in his opening presentation, minutes are not required to be like Hansard: ‘they’re there to know that these things happened and that the right sort of people are making the decisions’. And there is certainly no reason why, as Professor Deane put it, universities should be ‘able to get away with a lot more’ than private providers in these matters.
89.It is important to observe that, as is apparent from Dr McMillan’s evidence, extensive detail is included in the relevant board and committee papers. For example, in relation to the development of the Bachelor of Songwriting and Music Production (which counsel for TEQSA cross-examined on), Dr McMillan gives extensive detail of the process followed including copies of the documents considered by the relevant Program Committee. No issue is raised as to whether the substance of those papers has been properly considered, or with the qualifications of those who participated in the course development process, or in relation to the outcomes of that process. Indeed, it is noteworthy that Dr McMillan has described a rigorous and comprehensive process including multiple levels of review and expert input about which no issue of substance has been raised. Dr McMillan was not cross-examined on any of these topics.
90.Fourth, SAE has also addressed or committed to addressing the concerns raised by Professor Deane, including:
(a)   committing to conduct a review of its Course Approval and Accreditation Policy, Course Design, Review and Approval Guidelines and Course Review Policy and Procedure, including consideration of the matters raised by Professor Deane in Appendix 2;
(b)   the Academic Board and Learning and Teaching Committee having reconsidered the format of their meeting minutes and updated their format so that the minutes more fulsomely record the content of discussions at meetings;
(c)   preparing updated briefs for use by its external reviewers engaged during SAE’s course development and review processes; and
(d)   committing to review the terms of references of its Course Committees and Scholarship and Research Committee, which will consider, among other things, whether those committees should include a permanent external member (noting that there are several other sources of external input in course development, approval and review processes as described by Dr McMillan and recorded in SAE’s External Consultation Procedure).
91.Those commitments themselves reveal a level of maturity and sophistication in SAE’s processes, and therefore support the conclusion that SAE meets this criterion.
92.Fifth, as for the concerns expressed by Professor Deane about the form of external expert reviews, the question of how external experts have been briefed is a comparatively minor one, which SAE has agreed to consider further. No complaint is now made about the level or quality of external inputs in SAE’s course development and review processes, which Professor Deane accepts provide ‘ample opportunity for external input and consideration from Industry and expert academics’. One could also be criticised for being overly prescriptive in the briefs given to experts.
93.The other concerns raised by TEQSA are addressed in detail by Dr McMillan and Mr Wells. They do not detract from the conclusion that SAE meets criterion B1.2.5.
[Footnotes omitted][85]
[85]    The Tribunal notes that the Applicant provided significant footnoting outlining the documents referred to. The Tribunal has had regards to those references.

The Respondent submitted that Professor Deane had accepted that the processes in question were advanced, such that the issue that remained in question was whether those processes were mature. The Respondent submitted that while Professor Deane had been provided the definition of mature (as outlined above by the Applicant) she actually had five descriptors for something that is a mature process, which were: systematic, embedded, consistent, sustained and polished. The Respondent submitted that Professor Calford agreed with all of those descriptors other than polished, and as such to some extent the Applicant’s submissions with regard to Professor Deane being instructed with a definition go away as she clearly came up with her own.[86]
[86] Transcript, page 189.
The Respondent contended that the issue is not ‘Are the minutes up to scratch, generally?’, it is whether the evidence of the board’s decision-making process was sufficient to conclude that its processes are mature.[87]
[87] Transcript, page 189.
In relation to the Bachelor of Song Writing major course review documents that the Tribunal was taken to, the Respondent contended that when you track through the documents which record the decision that ultimately became the decision to approve the course with minor amendments, there is not a clear record of the corporate reasoning for that decision. The Respondent contended that what the deliberations were or what the considerations were that lead to that approval or the recommendation at the course committee level were not explained. The Respondent contended that had that been explained in those minutes that may well be sufficient to mean that simple adoption in the other minutes of the course approval committee and then the academic board is sufficient.[88]
[88] Transcript, page 190.
The Respondent, relying on the AICD policy contended that the fact that it is permissible to simply adopt board papers through minutes does not mean that it is always the correct approach or an approach which leads to evidence of a corporate reasoning process.[89] The Respondent contended that the Tribunal should expect that corporate reasoning process that leads to the approval of a course, with minor amendments should be reflected in the documentation of that process for regulatory compliance.[90]
[89] Transcript, pages 190-191.
[90] Transcript, page 191.
When asked if having mature processes in place was also a requirement for becoming a self-accrediting authority, the Respondent told the Tribunal that the language of the criteria are different. The Respondent told the Tribunal that:[91]
What you have before you is language about specifically whether this is a mature process. You have evidence of the experts, and of course we rely on Professor Deane’s analysis in that respect, to say this is not a mature process for the purposes of this criterion notwithstanding the fact that self-accrediting authority also had to meet the standard. And yes, that was a fairly high standard. But it wasn’t precisely the same as this one. And the focus wasn’t necessarily the same there.
[91] Transcript, pages 191-192.
The Respondent contended that the guideline on course design, review and approval, based on Professor Deane’s evidence did not do what a policy ought to do, as she said she could not look at it and understand what it is that she would need to do for the course design. The Respondent contended that Professor Calford agreed that policies and guidelines are part of the processes that you need to look at to work out whether there are mature processes in place and that the importance of policies and guidelines are threefold – being so that people who need to undertake those steps know what they need to do, for transparency and because it provides evidence of what those processes are. Professor Calford however disagreed that the policy did not meet the concept of the mature process for those purposes. [92]
[92] Transcript, page 192.
The Respondent submitted that the Tribunal would need to form its own view when it reads through the policy with reference to what Professor Deane said in Appendix 2 to her report. The Respondent submitted that the Tribunal would form its own view as to whether Professor Deane’s criticisms are fair and whether the policy as a consequence of the matters, she raises are confusing.[93]
[93] Transcript, page 192.
The Respondent contended that to be satisfied that the criterion is met to the relevant standard, it is not just a matter of does the policy just get there. It is whether there is a sufficient track record of how the Applicant has dealt with the policy to show sufficient quality of governance to meet this standard to the relevant level, and to show that they are a high performer, that they are the kind of quality institution that should be granted university college status.[94]
[94] Transcript, pages 192-193.
The Applicant contended in reply, that the suggestion that Professor Deane, although she was briefed with a certain definition of the word mature, nonetheless came up with her own definition in the course of her oral evidence and that the Tribunal should proceed on the basis that her opinions outlined in her reports were based of that definition was remarkable. The Applicant contended that Professor Deane:[95]
Never indicated that she was disagreeing with that definition or applying anything different and that only in the course of questioning identifies a different kind of a standard. And one asks again rhetorically how could the Tribunal have any faith in conclusions about whether or not that threshold of maturity is met when apparently she was applying a different standard from the one which she was instructed to apply.
[95] Transcript, page 215.
The Applicant further submitted that:[96]
[96] Transcript, pages 215-216.
Our learned friend referred to the material that we provided this morning, the material to demonstrate that the history of development of the bachelor of song-writing and in particular the minutes associated with that were – which we provided to show that they were in fact a clear example of a mature and developed process – our learned friend nonetheless sought to still convince the tribunal that there was something wrong with those. With the greatest of respect, at this point it appears that we are entering into an alternative universe when we’re talking about minuting and problems with documentation based on that material.
That body of documentation which the tribunal will now have, the depth and sophistication of it, the extent to which it obviously even on its face records the process of decision-making, belies that submission. Because our learned friend took the tribunal to the Australian Institute of Company Directors guideline, joint guideline with TEQSA, which made clear that if board papers are well-written and concise, if they themselves expose a reasoning process, then it may well be appropriate simply to be able to refer to them. And then there was silence. There was crickets at that point. The next submission had to be, but couldn’t be on the material before the tribunal, that the board papers were not adequate for that purpose. Because the board papers were more than adequate for that purpose. And even Professor Deane didn’t seek to criticise any of the board papers that came up.
But can I take the tribunal please to just one matter in those which is at tab 40 of that larger volume of materials that we provided this morning. I rightly wish I didn’t have to do this because the idea that the minuting was problematic and that means we don’t meet this threshold is one that ought to have been abandoned a long time ago. But at tab 40 what you see are the academic board minutes. So the very decisional body – the ultimate decisional body which is apparently the problem here in terms of the institutional documentation of the decisional process and outcome. Can I ask you to go please, Member, a few pages in if you look at the SAE number on the top righthand corner of each page I’m asking you to go to the one that ends 337. If you have that. We see item 9, items for discussion approval, program approval, committee outcomes and recommendations.
It commences:
The chair noted the enormous volume of documentation made available to the program approval committee members and at the depth to which independent external members examined that documentation was outstanding. Their degree of involvement was such that they brought their expertise to document consideration in a very productive way.
These are the minutes. And then – I won’t read it all out – but the chair of the program approval committees the Deane, SAE Southern highlighted the following matters. And then there’s a number of those dot pointed. ‘During further discussion it was observed that’ – those observations are then dot- pointed and not just one or two words but – then at the bottom of the page perhaps ironically, ‘After due deliberation and discussion it was resolved’. Again respectfully I shouldn’t even have to do this because this is the material in thousands, hundreds of pages under the body of an affidavit from Dr McMillan, that demonstrates that these processes on this very example – and it’s just an example and contrary to our friend’s submission there is more than one in Dr Millan’s affidavit – is actually incredibly impressive and at the very least meets the standard – at the very least meets the standard that TEQSA suggests that it should.
Because the submission was made about the academic board minutes that we should at least see some discussion in the minutes of the corporate reasoning process. Well if that’s the test then what I’ve just taken you to, Member, complies.
In considering the evidence before it, the Tribunal, for the reasons that follow, finds that the Applicant meets criterion B1.2.5 of Part B1.2 of the Threshold Standards in that it has mature and advanced processes for the design, delivery, accreditation, monitoring, quality assurance, review and improvement of courses of study, and the maintenance of academic integrity in place and a track record of improving and employing those processes.
Based on the Respondent’s submissions and evidence of Professor Deane, there is no dispute that the Applicant’s processes for the purposes of criterion B1.2.5 are advanced. The Tribunal notes that the Respondent instructed Professor Deane that for the purposes of her report to assume that advanced has the meaning of ‘far on in progress; beyond the average’.[97] The Respondent however contended, relying on the evidence of Professor Deane that the Applicant’s processes were not mature for the purposes of criterion B1.2.5 of Part B1.2 of the Threshold Standards.
[97] Exhibit 2, Joint Hearing Book, Tab 3, page 434, Report of Professor Elizabeth Deane.
In considering the intention of the Threshold Standards and objectives of the TEQSA Act the Tribunal does not accept the definition of mature relied upon by the Respondent and of which it provided to Professor Deane. The Tribunal considers that the Respondent’s definition of mature being “completed, perfected or elaborated in full” and “relating to or having the characteristic of full development” is inconsistent with criterion B1.2.5 and the purpose of the Threshold Standards to establish a solid basis of operational quality and integrity from which providers can continue to build excellence and diversity. The Respondent’s definition of mature makes the need for advanced processes redundant as the Respondent’s own definition of advanced contradicts the need for the processes to be perfected.
The Tribunal notes that Professor Deane at the Hearing gave evidence that she considered the concept of mature for the purposes of criterion B1.2.5 of Part B1.2 of the Threshold Standards more broadly that what she had been directed to do in her brief. Such a position was not evident in the reports provided by Professor Deane.
The Tribunal considers that when considering the definition of mature processes in the context of the Threshold Standards a mature process should be considered to be a process that is well-defined, documented, controlled and continuously improved. As such the Tribunal considers that the definitions of mature and advanced outlined by the Applicant in paragraph 76 of its Closing Submissions (as reproduced above) are reasonable in the circumstances. Consequently, in the Tribunal’s view processes do not need to be perfected in order to be mature, they need to be well established, well documented and open to continuous review and improvement.
The Tribunal agrees with the Applicant’s contentions. When looking at whether the Applicant has mature and advanced processes in place for the purpose of criterion B1.2.5 and considering Professor Deane’s acceptance that they are advanced in accordance with the definition of advanced being far on in progress and beyond average and with due consideration of the evidence provided by Dr McMillian, Mr Wells and Emeritus Professor Calford it is reasonable to form the view that the Applicant meets this criterion.
Having reviewed the documentation laying behind and evidencing the Bachelor of Song Writing major course review documents presented to the Tribunal, together with the evidence and contentions provided by the Applicant, the Tribunal does not agree with the criticisms made by Professor Deane. The Tribunal prefers the opinion of Emeritus Professor Calford provided at the Hearing and that outlined in his joint report with Mr Wells regarding the Course Design, Review and Approval Guidelines and considers that the issues identified by Professor Deane are items for improvement rather than items that demonstrate a fatal disfunction with the guidelines.
In balancing the evidence before it, the Tribunal is persuaded by the contentions and evidence presented by the Applicant. The Tribunal therefore finds that for the reasons outlined above that the Applicant has mature and advanced processes in place for the purposes of criterion B1.2.5 of Part B1.2 of the Threshold Standards and a track record of their effectiveness.
Further, the Tribunal considers the Applicant’s commitment to improve its processes for the design, delivery, accreditation, monitoring, quality assurance, review and improvement of course of study and the maintenance of academic integrity, as demonstrated in improvements made during the review process does not in these circumstances mean that it does not presently meet the criterion, rather it demonstrates a maturing in its process of continual improvement.
B1.2.6 – scholarship
Criterion B1.2.6 set out in Part B1.2 of the Thresholds Standard requires that the higher education provider:
demonstrates systematic support for scholarship and demonstrates scholarly activities and outcomes that inform teaching, learning, and professional practice, and make a contribution to the advancement and dissemination of knowledge.
It is noted that in the Joint Expert Report outlining the points of agreement and disagreement between the experts:[98]
(a)it was agreed that the Applicant had:
(i)provided evidence of employment of well qualified creative practice and thought leaders;
(ii)a well-grounded scholarship policy; and
(iii)recently indicated it would provide a separate funding allocation to professional development and to support scholarship.
(b)Mr Wells and Emeritus Professor Calford are of the opinion that the Applicant was already demonstrating support and providing sufficient details on scholarly activities.
(c)Professor Deane is of the opinion that the Applicant had not, as yet, documented outcomes that inform teaching but has in place the foundation for doing so.
[98] Exhibit 2, Joint Hearing Book, Tab 10, pages 689-990, Joint Expert Report.
The Applicant outlined their contentions in relation to this criterion as follows:[99]
[99]    Applicant’s Closing Submissions, pages 31-34, paragraphs 97-107.
97. There is no express requirement in criterion B1.2.6 relating to documentation. What is required is that SAE demonstrates (among other things) outcomes that inform teaching. Those matters can be demonstrated by, for example, by evidence given by those with knowledge of them. That is what has occurred here.
SAE meets this criterion
98.There is no dispute as to the general appropriateness or quality of SAE’s systems and processes supporting scholarship and its scholarly activities and outcomes. As Dr McMillan describes, SAE:
(a)   has scholarship embedded in its corporate object and functions, its strategic plans, and position descriptions for key positions;
(b)   has a detailed policy framework, centred around the Scholarship and Research Policy, which describes what constitutes research, scholarship and professional development and practice;
(c)   provides significant financial, time and supervisory support for scholarship and research through a range of programs and initiatives and investment in library resources; and
(d)   ensures that its governing bodies have oversight of scholarship activities.
99.The effectiveness of these systems and processes is demonstrated by the substantial scholarship and research outputs of its staff, which include both traditional outputs (such as publications) and non-traditional outputs (such as creative works). This scholarship necessarily influences the teaching activities of staff in circumstances where they are involved in delivering cutting edge creative courses. It also informs teaching and learning in a systematic way through SAE’s course design and review processes summarised in paragraph 78 above, which are specifically required to, and do, take into account contemporary scholarship in the relevant fields. Scholarship is also embedded in SAE’s continuous improvement and assessment practices.
100.Mr Wells, having analysed the evidence in detail, considers that the evidence demonstrates SAE provides appropriate institutional support for scholarship and that its academic staff are engaged in scholarly activities with outcomes that inform teaching, learning and professional practice and contribute to the advancement and dissemination of knowledge. Accordingly, Mr Wells considers that SAE meets criterion B1.2.6. Professor Calford agrees.
101.Professor Deane agrees with Mr Wells and Professor Calford that:
(a)   SAE has provided evidence of employment of well-qualified creative practice and thought leaders;
(b)   SAE has a well-grounded scholarship policy; and
(c)   SAE has recently indicated it would provide a separate funding allocation to professional development and to support scholarship.
102.Professor Deane expressly accepts that SAE ‘has in place policies, governance and management processes and strategies to support scholarship and research’, which is a central aspect of criterion B1.2.6. Professor Deane also raises no substantive issue as to whether SAE’s scholarly activities in fact inform teaching, learning and professional practice and make a contribution to the advancement and dissemination of knowledge; rather, the concern expressed is whether this is sufficiently articulated in SAE’s recording and reporting of those activities. Professor Deane accepted that for SAE it was largely implicit that scholarly activities informed teaching, a concession that must be correct for applied creative arts educators. And Professor Deane agreed that the information presented in Dr McMillan’s second affidavit at [32] to [33] was ‘good evidence’ of the connection between scholarly activities and outcomes informing teaching and learning; her only remaining concern was that it did not include every staff member of SAE. But there is no reason to doubt that such connections exist for other staff members, and Professor Deane cannot have any such doubt when she has no concern as to whether SAE’s scholarly activities and outcomes actually do inform teaching and learning.
103. In light of these concessions, it is not apparent from Professor Deane’s reports why the matters she has raised mean that, in her view, SAE does not meet criterion B1.2.6. Professor Deane appears to be importing into the criterion a requirement to meet a particular standard of documentation which, as set out in paragraph 97 above, is not located in the text of the criterion. And Professor Deane volunteered in her opening presentation that she did not think every provider necessarily needed to document the connections between scholarly activities and teaching. The fact that SAE has chosen to commit to a process for preparing such documentation does not demonstrate that it fails to meet the criterion; on the contrary, it demonstrates SAE’s systematic support for scholarship and commitment to demonstrating that it informs teaching as required by the criterion. Mr Wells’ and Professor Calford’s opinions should be preferred in these circumstances.
104.In any event, SAE has committed to addressing each of the matters raised by Professor Deane by amendments to its budget documentation, scholarship register and position descriptions. This is occurring as part of a comprehensive review of SAE’s Scholarship and Research Policy and associated processes, which was reported to the Academic Board shortly thereafter (in June 2023).
105.TEQSA’s has also raised two further concerns:
(a)   first, improvements are required to distinguish professional development activities from scholarly activities; and
(b)   second, the evidence does not adequately demonstrate systematic support for advancement of knowledge in the relevant discipline areas, particularly in the areas of animation, design and games development.
106.As to the first issue, TEQSA itself does not clearly distinguish between professional development and scholarship activities. For example, the Scholarship Guidance Note states engagement in scholarship can be considered in relation to ‘staff development’ across a provider and ‘an individual’s personal professional development’, and that examples of ‘staffing policies that recognise and encourage scholarship’ include policies relating to ‘professional development’. As Mr Wells says, ‘[i]t is both typical and expected that in any higher education environment, academic staff would and should engage in both discipline specific as well as broader professional development activities’, and ‘[i]n creative arts disciplines new knowledge is also disseminated through creative activities and engagement in creative activities as well practice of creative work is one of the ways in which new knowledge is gained’. Professor Calford also agrees with SAE’s approach. These kinds of scholarly activities, and their contributions to the dissemination of knowledge in the relevant fields (noting that these are creative fields, in which new creative works are part and parcel of the production and dissemination of knowledge), are readily apparent from Dr McMillan’s evidence.
107.As to the second issue, as TEQSA recognises, the higher proportion of scholarly activities in the areas of film and audio reflects the higher volume of students studying in those fields, which corresponds with higher numbers of teaching staff. Mr Wells considers that scholarly activities being in proportion to the numbers of teaching staff in the relevant fields supports, rather than detracts from, the conclusion that those staff are participating in scholarly activities that inform teaching in their chosen fields. In any event, SAE has produced substantial scholarly and/or research outputs in the narrow fields of education corresponding with animation, design and games development.
[Footnotes omitted][100]
[100] The Tribunal notes that the Applicant provided significant footnoting outlining the documents referred to. The Tribunal has had regards to those references.

The Respondent contended that for support for scholarship to be systematic it must be reflected in the documents which set the expectations of staff. In Professor Deane’s opinion such details should be set out in job descriptions.[101]
[101] Transcript, pages 193-195.
The Respondent contended that the scholarship and research policy referred to in

Dr McMillan’s affidavit contains an expectation of scholarship however there is no description of how it is to be done. The Respondent submitted that without documentation that staff will undertake that scholarship expectation, it may be said that it is insufficient, particularly given the lack of funding and workload allocation to demonstrate that systematic support for scholarship is in place. The Respondent contended that Professor Deane’s view was that the spreadsheet referred to, was evidence that there was creative and scholarly output over a number of years, and that while it was information about the staff who are doing the work, it was not enough to demonstrate the link between the scholarly activity and its impact on teaching and learning.[102]
[102] Transcript, pages 193-195.
In reviewing the Scholarship and Research Policy and Professional Development Policy document together with the evidence provided by Dr McMillan and the expert witnesses, particularly the concessions made by Professor Deane (as outlined in the Applicant’s contentions above), the Tribunal is satisfied that the Applicant’s policies and records of scholarly activity undertaken, and details of staff qualifications and contributions demonstrates a mature level of development and a track record of compliance against criterion B1.2.6.
The Tribunal accepts the evidence of Dr McMillan and the premise that the application of scholarly activity to informing teaching, learning and professional practice is an inherent part of academia. The Tribunal does not agree with the view provided by Professor Deane that in the absence of direct, repetitive direction on engagement in and application of scholarly activities that expectations of such are not evident. The Tribunal prefers the evidence of Mr Wells and Professor Calford regarding this criterion.
In balancing the evidence before it, the Tribunal is persuaded by the contentions and evidence presented by the Applicant. The Tribunal, therefore, for the reasons outlined above, finds that the Applicant meets criterion B1.2.6 of Part B1.2 of the Threshold Standards in that it demonstrates systematic support for scholarship and demonstrates that scholarly activities inform teaching, learning and professional practice and contributes to the advancement and dissemination of knowledge.
Further, the Tribunal considers the Applicant’s commitment to improve reporting and documentation around this criterion does not in these circumstances mean that it does not presently meet the criterion, rather it demonstrates a commitment to improving its systems.
Conclusion
The Respondent did not contend that should the Tribunal be satisfied that the Applicant met the criteria in dispute that it should otherwise exercise the discretion in section 38 of the TEQSA Act to not approve the change to its provider category.[103]
[103] Transcript, page 170.
Based on the Tribunal’s findings set out above, it is satisfied that the Applicant met the criteria in dispute, together with all of the criteria that must be considered when deciding an application made pursuant to section 38 of the TEQSA Act to change its provider category to that of University College.
As such, the Tribunal considers it is reasonable to exercise the discretion in section 38(1) of the TEQSA Act to change the provider registration category of the Applicant to University Category.
At the Hearing the Respondent was unclear as to what such a decision would mean for the Applicant’s registration period.[104] While not necessarily a question for the Tribunal, the Respondent invited its views on the issue.[105] The Tribunal considers that the TEQSA Act does not specifically deal with this issue. Section 23 of the TEQSA Act provides that registration commences on the day specified in the notice given under section 22 of the TEQSA Act (being notification that registration has been granted) and ends at the end of the period specified in the most recent notice given under section 22 or section 37 of the TEQSA Act in relation to registration (being notification of registration or renewal being granted).
[104] Transcript, pages 200-201.
[105] Transcript, page 201.
The Applicant’s registration is being changed pursuant to section 38 of the TEQSA Act, registration under the TEQSA Act in this instance is not being granted or renewed nor are notices to be issued under section 22 or section 37 of the TEQSA Act. There are no specific provisions that deal with the implementation of a decision made pursuant to section 38 of the TEQSA Act. As such in the Tribunal’s view the Applicant’s registration as a University College will end at the end of 6 November 2026[106] unless it takes steps to renew its registration or other intervening events occur.
[106]
Given the Tribunal’s findings in this matter it is not necessary for the Tribunal to determine whether to exercise the discretion in section 38 of the TEQSA Act to change the Applicant’s provider category where it “almost but not quite met” the Threshold Standards. For completeness however, the Tribunal notes that tensions exist in the TEQSA Act in that the application of the Threshold Standards is not consistent in determining eligibility for and renewal of registration as compared to determining eligibility to change provider registration categories. Such tension may raise issues where a providers provider category is changed in circumstances where it had not met the Threshold Standards and upon consideration of registration renewal it continues to not meet the Threshold Standards.[107]
[107] The Tribunal notes the views outlined by the parties in the submissions provided after the Hearing with regards to statutory construction. The Tribunal does not consider that the submissions fully explored the issues raised by the Tribunal. Fortunately, such issues did not impact upon the Tribunal’s decision. The Tribunal notes that it agrees with the Respondent’s submission that where the Threshold Standards are required to be met, it is all relevant parts of Part B of the Threshold Standards that must be met not just Part B1.1.
Presently, section 36 of the TEQSA is premised on renewal being issued on the basis that the provider ‘continues to meet to Threshold Standards’ which predicates that they must have been met at some point in time. The Tribunal notes that it became evident at the Hearing that upon renewal the Respondent may impose conditions in circumstances where it is not satisfied that a provider continues to meet the Threshold Standards, the legislative basis for deriving such satisfaction is not immediately clear to the Tribunal and as such the appropriateness of a similar approach to changing provider categories pursuant to section 38 of the TEQSA Act may require further consideration. These of course are matters for the Respondent.
DECISION
For the reasons set out above, the Tribunal finds that:
(a)the Applicant meets the University College Category criteria set out in Part B1.2 of the Threshold Standards; and
(b)there is no basis for the discretion in section 38(1) of the TEQSA Act not to be exercised in the circumstances.
Consequently, the Tribunal sets aside the decision under review and in substitution decides that pursuant to section 38 of the TESQA Act the Applicant’s provider category is changed to University College.

I certify that the preceding 121 (one hundred and twenty-one) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

...................................[SGD].....................................
Associate
Dated: 22 December 2023

Date(s) of hearing: 23 and 24 August 2023

Senior Counsel for the Applicant:
Junior Counsel for the Applicant:
Mr Saul Holt KC
Mr Dan Fuller

Solicitors for the Applicant:
Mr Tom Fletcher
Minter Ellison

Counsel for the Respondent:
Ms Brenda Tronson

Solicitors for the Respondent:
Mr Ryan Harvey
Australian Government Solicitor

Exhibit 2, Joint Hearing Book, Tab 4, page 65, paragraph 13, Affidavit of Luke McMillan affirmed

8 September 2022.

Exhibit 2, Joint Hearing Book, Tab 4, page 65, paragraph 15, Affidavit of Luke McMillan affirmed

8 September 2022.

Exhibit 2, Joint Hearing Book, Tab 4, page 65, paragraph 19, Affidavit of Luke McMillan affirmed

8 September 2022.

Exhibit 2, Joint Hearing Book, Tab 4, page 66, paragraph 25, Affidavit of Luke McMillan affirmed

8 September 2022.

Exhibit 2, Joint Hearing Book, Tab 4, page 66, paragraph 24, Affidavit of Luke McMillan affirmed

8 September 2022.

Exhibit 1, T Documents, T12, pages 46605-46606, Letter from the Respondent to the Applicant dated

19 November 2019 – Renewal of registration – Notice of Decision.

Exhibit 1, T Documents, T17, pages 47460-47461, Letter from the Respondent to the Applicant dated

12 January 2021 – SAE-SAA-Public Report.

Exhibit 2, Joint Hearing Book, Tab 4, pages 69, paragraph 32, Affidavit of Luke McMillan affirmed

8 September 2022.

Exhibit 2, Joint Hearing Book, Tab 38, TEQSA Risk Assessment Framework, Version 2.3 dated

7 March 2019.

Exhibit 2, Joint Hearing Book, Tab 4, page 66, paragraph 25, Affidavit of Luke McMillan affirmed

8 September 2022.

Exhibit 1, T Documents, T12, pages 46605-46606, Letter from the Respondent to the Applicant dated

19 November 2019 – Renewal of registration – Notice of Decision.

Date(s) of hearing:	23 and 24 August 2023
Senior Counsel for the Applicant: Junior Counsel for the Applicant:	Mr Saul Holt KC Mr Dan Fuller
Solicitors for the Applicant:	Mr Tom Fletcher Minter Ellison
Counsel for the Respondent:	Ms Brenda Tronson
Solicitors for the Respondent:	Mr Ryan Harvey Australian Government Solicitor