Tertiary Education Quality and Standards Agency Act 2011 - Determination of Fees No. 1 of 2012

EXPLANATORY STATEMENT

Determination of Fees No. 1 of 2012

Issued by the authority of the Chief Commissioner of the Tertiary Education Quality and Standards Agency (TEQSA)

Subject:   Tertiary Education Quality and Standards Agency Act 2011

Determination of Fees No. 1 of 2012

Authority

Subsection 158(1) of the Tertiary Education Quality and Standards Agency Act 2011 (the Act) allows TEQSA to determine, by legislative instrument, fees that TEQSA may charge for things done in the performance of its functions.

Subsection 158(3) of the Act further allows TEQSA to determine other matters relating to the payment of fees. In particular, paragraph 158(3)(b) of the Act permits TEQSA to determine the circumstances in which fees may be set off against another amount payable.

Purpose and operation

The purpose of the instrument is to determine the fees that TEQSA may charge for things done in the performance of its functions.

On 29 January 2012, TEQSA assumed regulatory responsibility for functions that were previously performed by the states and territories in relation to the matters dealt with by the Act.

TEQSA has determined the fees based on a decision by the Australian Government that TEQSA is to function on a partial cost recovery basis. As the determination of these fees necessarily predated the commencement of TEQSA’s regulatory activities, the determination of the fees is based on TEQSA’s estimate of the costs associated with particular activities, such as staff time, travel and associated costs, and considering historic comparative data and modelling of future costs. TEQSA also considered the fees charged by other agencies, including the state and territory accrediting authorities and the former Australian Universities Quality Agency. TEQSA will review these fees commencing in 2013 having regard to the collected data on costs for performing TEQSA’s functions following commencement of TEQSA’s regulatory activity.

TEQSA has responsibility for a broader range of activities than predecessor agencies and has therefore taken a different approach to structuring its fees. TEQSA will only charge for certain activities.  Activities including compliance, monitoring and enforcement will not attract a fee. Nor are there any annual charges required to be paid to TEQSA such as those that may have been charged previously by the state and territory authorities (providers registered on CRICOS will also to pay an annual registration charge under the Education Services for Overseas Students (Registration Charges) Act 1997.

Description of the provisions

The Instrument has two Schedules.

Schedule A of the Instrument sets out the fees payable. The Schedule includes fees that are specifically referred to in the Act, such as fees to accompany particular applications (for example applications for registration as a higher education provider under the Act: see subsection 18(3)).

Schedule A also includes other fees for services provided by TEQSA in performing its functions. TEQSA’s functions are listed in section 134 of the Act and include functions that are conferred on TEQSA by or under any other Commonwealth Law. Relevantly, TEQSA is a designated authority for the purposes of the Education Services for Overseas Students Act 2000 (the ESOS Act), and the Instrument sets out fees payable for services provided by TEQSA as a designated authority. The following matters are relevant to the fees for services provided by TEQSA as a designated authority under the ESOS Act:

• these fees are in addition to any fees for applications made to TEQSA under the TEQSA Act.
• TEQSA will usually recommend that any applications under the ESOS Act for registration to provide an additional course of study be registered for a duration which ends on the same date as any CRICOS registration for that provider. This means that a provider will usually only need to make one application for re-registration to provide all courses of study.
• TEQSA will not charge a fee for an application for registration to provide a course in a state where the provider is already registered to provide that course in another state.

Schedule B of the Instrument sets out matters relating to the payment of the fees listed in Schedule A for TEQSA’s completion of audits of higher education providers that AUQA started before section 3 of the TEQSA Act commenced.  AUQA was established in 2001 and was responsible for conducting quality assurance audits of all Australian universities and other higher education providers.  With the transition of AUQA to TEQSA in 2011, a small number of Cycle 2 Audits will be completed by TEQSA. Schedule B sets out the circumstances in which any amount a higher education provider had previously paid to AUQA towards the cost of such an audit may be set off against the fees payable to TEQSA by the higher education provider for completion of that audit by TEQSA.

Consultation

TEQSA released the maximum thresholds for each fee (as was determined by an Australian Government decision in early 2011) for comment from the higher education sector. TEQSA made this information available on TEQSA’s website and invited the public to make submissions on the development of TEQSA’s fees instrument. TEQSA also notified the following stakeholders via email to ensure they were aware of the opportunity to provide written comment:

• All Higher Education Providers currently registered under state or territory higher education laws: there are approximately 180 such organisations, including Universities and private providers of varying size and scope.
• Peak Bodies: Australian Council for Private Education and Training (ACPET); Universities Australia (UA); Council of Private Higher Education (COPHE); TAFE Directors Australia (TDA), Council of Australian Postgraduate Associations (CAPA); National Tertiary Education Union (NTEU); and National Union of Students (NUS).

The consultation period ran from Tuesday 3 January 2012 to Tuesday 17 January 2012.

Twenty-five submissions were received, including those from Peak Bodies that represent the majority of higher education providers. The submissions represented a wide range of views. In summary:

• Several submissions indicated that the fee thresholds were reasonable and/or broadly consistent with previous charges issued by the State/Territory accrediting bodies. However, some submissions claimed that TEQSA’s fee thresholds are significantly higher than many currently charged by the States/Territories;
• Several submissions raised concerns that charging for processing notifications of “material changes” under section 29 of the TEQSA Act could reduce the amount of notifications received by TEQSA under that section;
• Most submissions identified that maximum thresholds do not provide enough clarity for affected organisations to plan their annual budgets;
• The burden of fees on smaller institutions was raised in several submissions with the recommendation that a sliding scale for fees would be appropriate. It was also observed that these fees may present a barrier to smaller providers entering the market and lead to a lack of diversity in the sector;
• There was general consensus that further consultation on the fees is required in the future, once more detailed information about the costs of TEQSA performing its functions becomes available;
• Another consistent element of the submissions was that discounts should be applied to applications for accreditation of multiple, or nested, courses of study;
• A number of submissions suggested that the costs to TEQSA of a re-registration and a re-accreditation will be less than for a registration and an accreditation respectively; and
• A small number of submissions discussed concerns around the differentiation of fees based on provider category, and instead suggested that size, scope and number of students would be a better approach for determining the amount charged.

The Determination incorporates many of these suggestions. In particular:

• TEQSA has determined that the fees associated with applications for registration or renewal of registration in the Higher Education Provider category will be lower than those for other provider categories. This reflects the higher amount of work in verifying compliance with the additional standards imposed on providers in other categories.
• TEQSA has determined that it will not charge for notifications of material changes under section 29 of the TEQSA Act.
• TEQSA has determined the fees for applications for accreditation of courses of study in a way which provides discounts where higher education providers submit applications for accreditation, or renewal of accreditation, for more than one course of study.
• TEQSA has determined that fees for Renewal of Registration and Renewal of Accreditation will be lower than those for Registration and Accreditation respectively. This is a reflection of the likely reduction in the amount of work required for subsequent regulatory activity.

As noted above, TEQSA will review these fees commencing in 2013 and will consider any further relevant information available at that time, including feedback from higher education providers. TEQSA will also consult with higher education providers and other stakeholders as part of the review to ensure that these stakeholders have a further opportunity to inform the approach to the development of TEQSA’s fee arrangements.

TEQSA has also consulted with the Department of Finance and Deregulation on the development of TEQSA’s fee schedule and cost recovery arrangements, particularly in relation to Commonwealth cost recovery policies.

Statement of Compatibility with Human Rights

This Statement is prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

The Determination does not engage any of the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.  Accordingly, the Determination is compatible with human rights as it does not raise any human rights issues.

Commencement

This Determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003 and will commence on the day after registration on the Federal Register of Legislative Instruments.