Linda Reynolds (WA, Liberal Party, Minister for Government Services) Share this | Hansard source

I table an addendum to the explanatory memorandum relating to the Tertiary Education Quality and Standards Agency (Charges) Bill 2021. The addendum responds to concerns raised by the Scrutiny of Bills Committee.

In regard to the document I've just tabled, the Scrutiny of Bills Committee raised two significant matters in relation to the delegated legislation: firstly, why it's considered necessary and appropriate to give the minister a broad discretionary power to provide for exemptions from the proposed registered higher education provider charge in delegated legislation; and, secondly, whether the bill can be amended to include at least high-level guidance on the face of the primary legislation regarding when it will be appropriate to provide for such exemptions.

I'd like to deal with the first issue in relation to the broad discretionary power. I advise the chamber that the government believes it's appropriate to include the capacity for exemptions, should they be necessary, in the instrument that defines the parameters of the charge. Having exemption power in delegated legislation provides the flexibility necessary for the government to be responsive to the needs of higher education providers, either as a whole or for part of a class of providers, and also to act quickly if need be. The COVID-19 pandemic has provided numerous examples where the government needs to respond quickly to provide targeted financial relief to particular groups. This included, for example, the waiver or refund of all of TEQSA's regulatory fees for existing higher education providers from 1 January last year to 31 December this year. Any such waiver, should it be instituted, would necessarily be consistent with the legislative intent outlined in the bill and the government's overarching policy framework, including the Australian Government Charging Framework. The latter requires that entities that create the demand for a regulatory function should contribute to the cost of regulation through cost recovery unless the government has decided to fund that activity. A decision to waive collection of the annual charge for a period of time or for a particular class of higher education providers could not be taken lightly or without careful consideration.

In relation to the issue of whether the bill can be amended, the government does not consider it necessary to amend the bill to provide guidance on the application of a waiver provision as outlined above, and any exercise of such power could only be done after careful consideration and must be consistent with the legislative intent and the Australian government's overall cost recovery policy. I note that the committee, in response, thanked the minister for his response. And the committee noted the minister's advice that it is appropriate to include the capacity for exemptions, should they be necessary, in the instrument that defines the parameters of the charge as it provides the flexibility necessary for the government. The committee also notes the minister's advice that a waiver would necessarily be consistent with the legislative intent outlined in the bill and the government's overarching policy framework, including the Australian Government Charging Framework.

The committee also advised that they had generally not accepted a desire for administrative flexibility or reliance on non-legislative policy guidance to be a sufficient justification to provide broad discretionary powers in circumstances where there is no guidance on the face of the primary legislation as to how the power should itself be exercised. The committee also draws this matter to the attention of senators and leaves to the Senate as a whole the appropriateness of giving the minister a broad discretionary power to provide for exemptions from the proposed registered higher education provider charges in delegated legislation. The committee also requested that an addendum to the explanatory memorandum containing the key information provided by the minister be tabled in the parliament as soon as practicable, noting the importance of these explanatory materials as a point of access to understanding the law. The committee also drew the attention of the Senate to this.

In relation to the second issue, in relation to why it was considered necessary and appropriate to leave key aspects of the operation of the proposed registered higher education provider charge to delegated legislation and also whether the bill could be amended to include at least high-level guidance on the face of the primary legislation regarding matters to be contained in the Registered Higher Education Provider Charge Guidelines, the minister's response to this important question was that the matters to be included in delegated legislation are purely administrative in nature, and the government believes it appropriate for these matters to be detailed in subordinate legislation, as they will likely need to be adapted over time to changing circumstances.

In relation to whether the bill could be amended or not, our response is that high-level guidance on the content of the Registered Higher Education Provider Charge Guidelines is already specifically included in the bill, at item 2, section 26C(2). This outlines the matters that can be included in the guidelines, including issuing of notices about charges payable, due dates for payment, extension of payment time frames, penalties for late payment, and reviews of decisions relating to the payment of the annual charge. I note that the committee, in response, thanked the minister for his response and the advice that the matters to be included in delegated legislation are purely administrative in nature, and they agreed with that point. Again, the committee draws this matter to the attention of senators and leaves to the Senate as a whole the appropriateness of leaving key aspects of the operation of the proposed registered higher education provider charge to the delegated legislation.