Jessica Mohr, First Assistant Secretary
Policy, Data and Strategy Division
Higher Education, Research and International Group
Australian Government Department of Education
The Go8 supports a strong, independent and effective TEQSA focused on protecting students, assuring quality and maintaining confidence in Australian higher education.
The proposed amendments represent a significant expansion of TEQSA’s powers and regulatory reach. The Government has itself described the reforms as providing stronger monitoring and enforcement powers, directions to rectify breaches, significantly increased financial penalties and amended principles of regulation.
The question is not whether universities should be properly regulated. They should.
The question is whether each additional power is necessary, proportionate and likely to improve outcomes for students, and whether the cumulative burden of the powers is justified.
The Go8 is not convinced that this has yet been demonstrated.
A stronger regulator should not automatically mean a more intrusive regulator. Nor should additional powers simply be layered over existing regulatory requirements without addressing duplication, regulatory burden and the responsibilities of other agencies.
The Government should demonstrate for each proposed new power:
- the problem it is intended to solve
- why TEQSA’s existing powers are insufficient
- how the new power will improve outcomes for students
- how duplication with other regulators will be avoided
- what safeguards will ensure the power is used proportionately.
The Government should also undertake and publish an assessment of their cumulative regulatory impact. That assessment should identify both additional regulatory activity and existing activity that can be reduced or discontinued.
That is the test against which the Go8 considers the proposals should be assessed.
General directions power and university autonomy
The proposed general directions power is the most significant concern in the package.
TEQSA’s job is to regulate against clear standards. Universities are responsible for determining how they meet those standards.
That distinction matters.
The existing framework already places clear responsibilities on university governing bodies and academic governance structures. TEQSA itself recognises that governing bodies are responsible for key governance functions and that, where those responsibilities are being properly discharged, the regulator does not seek to prescribe how those functions are undertaken.
The proposed general directions power risks blurring that boundary.
If broadly framed, it could move TEQSA beyond determining whether universities are meeting required standards and towards prescribing how universities operate in order to meet them.
That would be a fundamental shift in the regulatory relationship.
The Go8 is particularly concerned about the potential for such a power to extend into areas of academic governance, teaching practice and institutional management.
Universities should be accountable for outcomes. The regulator should not unnecessarily become the decision-maker about how those outcomes are achieved.
The Higher Education Standards Framework should remain the primary basis against which providers are regulated. TEQSA’s own material describes the Framework, together with the TEQSA Act and other relevant instruments, as the definitive requirements governing Australian higher education providers.
The Go8 therefore considers that the case for a general directions power has not been established and that the proposal should be reconsidered before the Bill is finalised.
At a minimum, the Government must clearly define:
- when the power can be used
- the problem it is intended to address
- the limits on its application
- how affected providers will be consulted
- how decisions can be challenged or reviewed
- how the power will interact with the existing Higher Education Standards Framework.
This is not an argument against accountability. It is an argument for clear, proportionate and predictable regulation.
Provider-specific directions
The same principle should apply to provider-specific directions.
Where TEQSA identifies a serious compliance issue, it should be able to require a provider to address it and demonstrate that the problem has been fixed.
But there is an important distinction between requiring an outcome and prescribing the means of achieving it.
Universities operate at very different scales and have different governance arrangements, student populations and academic structures. A regulatory solution appropriate to one institution will not necessarily be appropriate to another.
Prescriptive directions also risk shifting responsibility away from the university governing body that is ultimately accountable for the institution.
TEQSA should therefore identify the problem and the standard that must be met. The university should remain responsible for determining the most effective way of getting there, except where more direct intervention is clearly necessary.
Systemic-risk powers
The Go8 supports TEQSA being able to identify and respond to genuine systemic risks.
However, “systemic risk” cannot become an open-ended basis for regulatory intervention.
The proposed power is potentially very broad. Before launching a systemic-risk assessment, TEQSA should be able to clearly identify:
- the nature, extent and severity of the risk
- why it is considered systemic rather than institution-specific
- the evidence supporting that view
- the connection with TEQSA’s regulatory responsibilities
- what the assessment is intended to achieve.
There should also be meaningful consultation with affected providers.
Without clear boundaries, there is a risk that systemic-risk assessments, thematic assessments, information-gathering powers and existing compliance activity become different regulatory pathways for examining substantially the same issue.
That would increase burden without necessarily improving outcomes.
Regulatory overlap
The reforms cannot be considered in isolation.
Universities now operate within an increasingly complex regulatory environment involving TEQSA, the Department of Education, the National Student Ombudsman and other specialist regulatory arrangements. The Government is also establishing a broader tertiary policy architecture involving the Australian Tertiary Education Commission.
The Go8 is concerned that additional powers could result in different agencies examining the same issue, requesting similar information or imposing different expectations on universities.
That does not strengthen regulation. It creates duplication.
The Government should clearly set out how responsibilities will operate across agencies, including:
- which body leads on particular issues
- how information will be shared
- how repeated information requests will be avoided
- how overlapping investigations will be managed
- how inconsistent regulatory expectations will be prevented.
There is a broader policy issue as well.
The Government’s tertiary reforms seek to recognise different institutional missions and encourage greater differentiation across the sector. The regulatory system should not simultaneously drive universities towards uniformity in the way they meet common standards.
Different institutions should be able to achieve the same regulatory outcome differently.
Compliance action information and centring students
The Go8 supports transparency. Students have a legitimate interest in knowing when serious regulatory concerns exist.
But transparency must also be accurate and current.
An unresolved issue from the consultation is what happens when information TEQSA has published about regulatory action subsequently becomes outdated or misleading because circumstances have changed or the matter has been resolved.
This needs to be addressed directly in the legislation.
If TEQSA publishes compliance information, it should also have a clear responsibility to correct, update or remove that information when it no longer provides an accurate picture.
Historical regulatory information should not remain indefinitely on a public register without context simply because it was accurate when originally published.
Students should be told when there is a serious problem.
They should also be told when that problem has been fixed.
That is what genuinely centring students requires.
Information-gathering powers
Expanded information-gathering powers also require clear limits.
Universities already provide substantial amounts of information to governments and regulators. New powers should not create repeated requests for information already available elsewhere in government.
Before requesting additional information, TEQSA should consider:
- whether the information is genuinely necessary
- whether it is already held by another Commonwealth agency
- whether the request duplicates existing reporting
- whether the same regulatory purpose can be achieved in a less burdensome way
- appropriate treatment of legally privileged, confidential, commercially sensitive and research information.
The principle should be simple: collect what is necessary, once, and use it effectively.
Continuous compliance
Universities are already expected to meet and continue to meet the Higher Education Standards Framework. TEQSA describes those requirements as applying on an ongoing basis.
If the proposed amendments give TEQSA additional powers to intervene earlier where compliance concerns emerge, that should be accompanied by a genuine reduction in unnecessary periodic assurance and reporting for institutions that have demonstrated mature governance and quality-assurance systems.
Otherwise, the reforms will simply add another regulatory layer.
The goal should be smarter regulation, not simply more regulation.
Regulatory burden
This is a significant issue for Go8 universities.
The Government’s reform package should be assessed according to its cumulative regulatory impact, not proposal by proposal.
Every additional information request, assessment, reporting requirement and compliance process consumes people, time and resources.
Those resources ultimately come from the same institutions expected to invest in teaching, student services, research and innovation.
There is also a direct financial dimension. The Government has stated that the costs associated with TEQSA’s strengthened powers will be recovered through TEQSA’s cost-recovery arrangements.
The Government therefore needs to demonstrate what universities receive in return for assuming additional regulatory obligations and costs.
Where new powers make existing processes unnecessary, those processes should be removed.
The Go8 recommends that the Government undertake a cumulative assessment of the reforms before the legislation is finalised, including:
- the additional regulatory burden created
- the expected cost to providers
- duplication with existing requirements
- requirements that can be consolidated or removed
- opportunities to reduce regulation for consistently low-risk institutions.
Regulatory reform should not be a one-way street.
Penalties
The Government also proposes significantly increased financial penalties.
The Go8 does not oppose meaningful consequences for serious non-compliance.
But increased penalties should be directed at clearly defined and serious failures, and should be proportionate to the nature of the breach.
The central objective must remain fixing problems and protecting students.
Higher penalties are not, by themselves, evidence of better regulation.
TEQSA’s capability
Giving a regulator substantially greater powers also increases the responsibility on that regulator to exercise those powers consistently, efficiently and with appropriate expertise.
The question is therefore not simply whether TEQSA needs additional resources.
The Government must also be satisfied that TEQSA has the capability and expertise required to exercise broader powers without becoming unnecessarily involved in institutional management or duplicating the responsibilities of other agencies.
That should form part of the assessment of the reform package rather than being considered after new powers have been legislated.
Joined up tertiary system
Greater harmonisation of the rules and regulations that apply to the vocational education and training (VET) and higher education and better streamlining of the operations of the regulators (including ASQA and TEQSA) is welcome.
However, we must recognise the unique roles of our public universities which are fundamentally different from VET providers.
Importing regulations and practices that work for ASQA and VET providers into higher education should not be done without due consideration.
Conclusion
These amendments are significant.
They would substantially expand TEQSA’s regulatory toolkit and change the way the regulator interacts with universities.
The Go8 supports strong regulation where it protects students, assures quality and responds to demonstrated problems.
But strong regulation is not the same thing as more regulation.
Before proceeding, the Government should be able to answer three straightforward questions about every significant new power:
- What problem are we solving?
- Why are the existing powers not enough?
- What safeguards ensure the new power goes no further than necessary?
On the information currently available, the Go8 does not consider those questions have been adequately answered in relation to the proposed general directions power.
Nor should the wider package proceed without addressing regulatory overlap, cumulative burden, the accuracy of published compliance information and the appropriate boundary between TEQSA’s regulatory responsibility and universities’ responsibility for governing their own institutions.
The Go8 is ready to work constructively with the Government on these issues before the Bill is finalised.
The objective should be clear: stronger outcomes for students, clearer accountability and less duplication. Not simply more power and more regulation.
We look forward to further engagement on these reforms.