SUBMISSION TO TEQSA CONSULTATION ON PUBLICATION OF DECISIONS
15 March 2017
Universities Australia (UA) thanks TEQSA for the opportunity to provide comment on its proposed changes to the publication of TEQSA’s decisions.
While Universities Australia agrees with the principle of providing students and the wider community with information about regulatory decisions, we do not support the proposed changes to the publication of decisions.
SUMMARY OF PROPOSED CHANGES
TEQSA’s consultation proposes the following changes to the agency’s existing practice:
- Publishing on the National Register of Higher Education Providers decisions to reject accreditation applications before the conclusion of appeal processes.
- Publicly announcing ‘significant decisions’ (which may include decisions to reject initial registration applications) via media release or other mechanism.
- Broadening the scope of what may be included within entries in the National Register.
TEQSA argues that these changes are proposed in order to align TEQSA practice with that of other similar agencies (particularly ASQA) and to reflect public interest.
UNIVERSITIES AUSTRALIA RESPONSE
The TEQSA Act requires the agency to operate in accordance with the legislated principles of regulatory necessity, reflection of risk, and proportionality. It is UA’s view that the proposed changes to the publication of decisions do not comply with these three principles.
Necessity: there is no demonstrated need to change existing practice
The proposed changes are put forward for two stated reasons – alignment with other agencies’ practice and a claim that the public good and regulatory transparency would be served by providing information on decisions as soon as possible.
UA does not believe that the consultation paper presents a strong case to justify the proposed changes, or that the arrangements put in place in 2013 are no longer fit for purpose.
The consultation paper does not adequately make the case that these changes are necessary to improve regulatory outcomes in higher education. Just because a practice is common in other agencies is not in itself sufficient grounds for change.
UA would need to see a more detailed argument from TEQSA as to how the changes would reflect best practice in regulatory operation, and how the changed approach would enable TEQSA to better serve the interests of providers, students and the wider community.
Risk: diminished procedural fairness and risk of reputational damage
The proposed changes are predicated on the view that existing practice is weighted too far towards a provider’s right to procedural fairness and away from the rights of students and other stakeholders.
UA does not agree with this view.
If decisions are publicised as soon as they are made in the absence of further information that may be relevant having been provided through a process of procedural fairness, there is serious risk of incorrect information being disseminated.
The changes being put forward – particularly the intent to publish information about decisions when they are made or as soon as possible thereafter rather than following the conclusion of any review process – strike an inappropriate balance between procedural fairness and timely information provision.
There is a risk that the approach put forward would undermine the rights of providers to a fair and disinterested appeal process and may have negative reputational or material consequences for:
- providers, who may suffer permanent damage even if initial negative decisions are eventually overturned;
- students and potential students, who may misled by such early information and unnecessarily change enrolment;
- TEQSA, which may suffer from a loss of public or political confidence in the effectiveness of its work and accuracy of its decisions; and
- the wider sector, which may suffer residual taint from negative decisions even after they are publicly reversed.
Not all decisions would attract public or media interest, but it is almost certain that when a case does so the external scrutiny will be such that the ability of TEQSA to conduct impartial reviews will be constrained. This would be prejudicial and clearly counter to fair process.
It is difficult to see any benefits for students, the provider, TEQSA or the sector from early public announcements of initial decisions.
In the consultation paper TEQSA suggests that it may publicise decisions to reject initial applications for registration. UA does not see any purpose to this suggestion. Potential providers have every right to apply for registration. If the application is rejected there can by definition be no future risk to students, and thus there would be no benefit in announcing the details of such decision beyond providing some assurance that TEQSA is rejecting applications. The latter assurance can easily be provided through existing reporting mechanisms that provide de-identified summaries of numbers of applications received and numbers rejected.
Proportionality: lack of defined scope
The consultation paper frequently refers to ‘significant decisions’ being the primary subject of the proposed changes.
However the paper is vague as to what decisions would be seen as ‘significant’, and this terminology is not used in the TEQSA Act. This means that there is a strong possibility of subjectivity and lack of consistency in its use. Would a minor breach by a large university be considered more significant than a larger breach by a small private provider? It may well generate more public interest, but this does not necessarily equal significance.
The lack of definition or clear boundaries to this concept is of serious concern.
UA does not support the proposed changes to TEQSA’s reporting of decisions. While UA member universities, as low-risk providers, are unlikely to feel the impact of such changes, it is our view that the changes would not represent an improvement on current arrangements.
At worst the changes would lead to additional imposts on the agency and substantial, possibly unfounded, reputational damage for individual providers or the sector as a whole.
If the intent behind these proposals is to ensure that the public receives information in a more timely manner, this objective may be better served by reforming TEQSA’s review process rather than pre-emptively announcing decisions that may be overturned.