Dana Wortley (SA, Australian Labor Party) Share this | Link to this | Hansard source

On behalf of the Standing Committee on Regulations and Ordinances, I give notice that 15 sitting days after today I shall move that the following determinations be disallowed:

Determination of Fees for Water and Sewerage Services No. 1 of 2008 made under section 9 of the Christmas Island Act 1958; and

Determination of Fees for Water and Sewerage Services No. 1 of 2008 made under section 12 of the Cocos (Keeling) Islands Act 1955.

I seek leave to incorporate in Hansard a short summary of the matters raised by the committee.

Leave granted.

The summary read as follows—

Determination of Fees for Water and Sewerage Services No. 1 of 2008 – Christmas Island

Determination of Fees for Water and Sewerage Services No. 1 of 2008 – Cocos (Keeling) Islands

These two instruments that specify fees for water and sewerage services on the Islands are drafted in substantially similar, though not identical, terms. Clause 5 of each instrument lists definitions which are used to classify land for the purposes of determining appropriate fees for water and sewerage services. Paragraph 5(b) of the Christmas Island Determination defines the category of Commercial/Residential. The Cocos (Keeling) Islands Determination does not have a similar category.

Clause 5 in both instruments defines a category of ‘charitable purposes’ by reference to whether the Authority is of the opinion that the land is used for specified purposes. There is no indication in the Explanatory Statement as to the rights of appeal that can be exercised by a person who believes that the Authority’s opinion regarding the charitable uses for which land is used is in error.

The Committee has written to the Minister seeking advice on these matters.

Following the receipt of satisfactory responses, on behalf of the Standing Committee on Regulations and Ordinances, I give notice that on the next day of sitting I shall withdraw:

Business of the Senate Notice of Motion No. 1 standing in my name for eleven sitting days after today for the disallowance of the Higher Education in External Territories Guidelines 2008, and

Business of the Senate Notice of Motion No. 1 standing in my name for thirteen sitting days after today for the disallowance of the Social Security (Public Interest Certificate Guidelines) (DEEWR) Amendment Determination 2008.

I seek leave to incorporate in Hansard the Committee’s correspondence concerning these instruments.

Leave granted.

The correspondence read as follows—

Higher Education in External Territories Guidelines 2008

28 August 2008

The Hon Julia Gillard MP

Minister for Education

Suite MG.41

Parliament House

CANBERRA ACT 2600

Dear Minister

I refer to the Higher Education in External Territories Guidelines 2008 made under section 238-10 of the Higher Education Support Act 2003

The definition of ‘explanatory statement’ in section 4 of the Legislative Instruments Act 2003 requires an explanatory statement to explain the purpose and operation of the instrument. The Committee’s practice is to ask for an item-by-item explanation of provisions in an instrument. The Explanatory Statement that accompanies this instrument simply reproduces, in abridged form, the purpose provisions from each Chapter of the instrument. No further explanation of particular provisions is given. The Committee would therefore appreciate a revised and more detailed explanation for this instrument.

The Committee would appreciate your advice on the above matter as soon as possible, but before 12 September 2008, to enable it to finalise its consideration of these Guidelines. Correspondence should be directed to the Chair, Senate Standing Committee on Regulations and Ordinances, Room SG49, Parliament House, Canberra.

Yours sincerely

Senator Dana Wortley

Chair

22 September 2008

Senator Dana Wortley

Chair

Senate Standing Committee on Regulations and Ordinances

Room SG49

Parliament House

CANBERRA ACT 2600

Dear Senator Wortley

Thank you for your letter of 28 August 2008, concerning the Higher Education in External Territories Guidelines 2008 (the Guidelines).

I note the Committee’s concerns regarding the adequacy of the Explanatory Statement to the Guidelines, for the purposes of section 4 of the Legislative Instruments Act 2003.

A copy of the revised Explanatory Statement to the Guidelines is attached, which provides a more detailed item-by-item explanation of each provision in the instrument.

I trust this information enables the Committee to finalise its consideration of the instrument.

Yours sincerely

ATTACHMENT A

EXPLANATORY STATEMENT

Issued by the authority of the Minister for Education

Subject:  Higher Education Support Act 2003

Higher Education in External Territories Guidelines 2008

Authority

Section 238-10 of the Higher Education Support Act 2003 (the Act) provides that the Minister may make guidelines for the purposes of the Act. In particular, Item 6A of the table in subsection 238-10(1) specifies that the Minister may make Higher Education in External Territories (HEET) Guidelines (Guidelines) to give effect to matters set out in Chapter 6 of the Act.

Background

Part 6 of the Act provides for approval of existing higher education institutions or proposed institutions to be approved as various kinds of higher education entities and the accreditation of higher education courses of study, in each case in relation to an Australian external territory. This part of the Act also provides that persons who do not have approval or accreditation under this part of the Act may be guilty of an offence if they operate as a university or other higher education provider, offer higher education awards or describe themselves as universities.

In October 2007, the Ministerial Council on Education, Employment, Training and Youth Affairs (MCEETYA) agreed to revised National Protocols for Higher Education Approval Processes (National Protocols) after extensive consultation with stakeholders.

The National Protocols are available at:

http://www.mceetya.edu.au/mceetya/national protocols for higher education mainpage,15212.html .

MCEETYA tasked the Joint Committee on Higher Education (JCHE) with developing National Guidelines to set out necessary matters of detail for implementation and to increase the consistency of approval processes for higher education institutions and courses across jurisdictions. The National Guidelines were developed with comment and input from a wide range of higher education stakeholders.

The National Guidelines have been agreed to by the relevant ministers in all jurisdictions. The National Guidelines are available at: http://www.mceetya.edu.au/mceetya/national protocols for higher education mainpage,15212.html.

The HEET Guidelines incorporate the National Protocols and the National Guidelines by reference and must be read in conjunction with those documents as they are in force at the time the HEET Guidelines are made by the Minister.

Consultation

Following on from the extensive consultation on the National Protocols and the National Guidelines, the HEET Guidelines were also distributed for comments from the higher education sector in January 2008. They were distributed to the following peak bodies: the Australian Council for Private Education and Training (ACPET), the Council of Private Higher Education (COPHE) and Universities Australia (UA). ACPET and COPHE suggested minor amendments regarding inclusion of fees for non self-accrediting higher education entities and appeal processes: these suggestions have been incorporated. UA agreed to the draft guidelines being made and registered in the form in which they were circulated.

Commencement

These Guidelines commence the day after the day they are registered on the Federal Register of Legislative Instruments.

Overview of the Higher Education in the External Territories Guidelines

Chapter 1 provides an introduction to and outline of the guidelines broadly similar to this document. It explains that the HEET Guidelines give effect to the National Protocols and National Guidelines, as approved by MCEETYA in October 2007, in the Commonwealth’s jurisdiction. Potential applicants would be remiss if they failed to read these documents which are in the public domain.

Chapter 2 provides potential Applicants with information about obtaining an application form, CRICOS approval, fees and charges, and limitations on marketing, advertising and public statements during the approval process, and review and appeals processes.

Section 2.5 requires applicants to write to request application forms which can then be provided by e-mail or physical post. Because the external Territories is a very small jurisdiction, it is desirable to establish early awareness of any interest in establishing a higher education entity to operate in an external Territory.

Fees and charges are set in section 2.15 to reflect the costs expected to be incurred in an assessment process by the Commonwealth. As the external Territories include remote locations, the costs of an assessment process are likely to be high and because the number of applications is likely to be low due to the small size of the jurisdiction, there is unlikely to be potential to amortise costs over a number of potential higher education entities.

The provisions of section 2.30, Review of Decisions, reflect standard procedures for administrative review under Commonwealth Acts. It enables applicants to seek review if they are dissatisfied with a decision and to make application to the Administrative Appeals Tribunal if they are not satisfied with the outcome of the review.

Chapter 3 sets out information about applications for approval as a non self-accrediting higher education entity in relation to an Australian external Territory and specifies matters to which the Minister will have regard in making decisions.

Section 3.5 requires the applicant to complete an approved application form addressing the evidence to be provided by initial applicants as set out in section 17 of the National Guidelines for the Registration of Non Self-Accrediting Higher Education Institutions and the Accreditation of their Course/s.

Sections 3.10 through 3.20 specify the main features of the assessment process. In particular, section 3.10.5 enables the Minister to request additional information where an application is found to be incomplete upon initial assessment, section 3.15 enables the Minister to decide that an application is lacking sufficient merit to warrant establishment of an assessment committee and section 3.20 describes how an assessment committee will be established should such be required.

Section 3.25 identifies the specific sections of the National Guidelines that apply in consideration of applications for registration as a non self-accrediting higher education entity in the external Territories. It also specifies the other matters the Minister may have regard to, including the offshore operations, if any, of the applicant, the recommendations of the assessment committee and the recommendations of the Department.

Section 3.30 specifies that an applicant may be approved to operate as a non self-accrediting higher education entity in an external Territory for a maximum of five years. It also identifies that the Minister may impose conditions on the approval where these are deemed necessary, including on advice from the assessment committee or the Department.

Section 3.35 specifies the requirements for approval to continue to operate as a non self-accrediting higher education entity in an external Territory. At 3.35.10, this section specifies that, in addition to matters covered by sections 17-19 of the National Guidelines, the Minister may take into account compliance with any conditions imposed in the course of initial approval.

Section 3.40 specifies that the Minister will provide reasons in writing for a refusal of an application as soon as possible after the decision.

Section 3.45 acknowledges that mutual recognition across jurisdictions will be in accordance with sections 12 and 19 of the National Guidelines.

Chapter 4 sets out information about applications for the accreditation of a course of study leading to a higher education award in relation to an Australian external Territory and specifies matters to which the Minister will have regard in making decisions.

Section 4.5 requires the applicant to complete an approved application form addressing the evidence to be provided by initial applicants as set out in section 18 of the National Guidelines for the Registration of Non Self-Accrediting Higher Education Institutions and the Accreditation of their Course/s.

Sections 4.10 through 4.20 specify the main features of the assessment process. In particular, section 4.10.5 enables the Minister to request additional information where an application is found to be incomplete upon initial assessment, section 4.15 enables the Minister to decide that an application is lacking sufficient merit to warrant establishment of an assessment committee and section 4.20 describes how an assessment committee will be established should such be required.

Section 4.25 identifies the specific sections of the National Guidelines that apply in consideration of applications for accreditation of a course or courses to be offered by a non self-accrediting higher education entity in the external Territories. It also specifies the other matters the Minister may have regard to, including the offshore operations, if any, of the applicant, the recommendations of the assessment committee and the recommendations of the Department.

Section 4.30 specifies that a course or courses may be accredited to be offered by a non self-accrediting higher education entity in an external Territory for a maximum of five years. It also identifies that the Minister may impose conditions on the accreditation of a course or courses where these are deemed necessary, including on advice from the assessment committee or the Department.

Section 4.35 specifies the requirements for accreditation of a course or courses to continue to be offered by a non self-accrediting higher education entity in an external Territory. At 4.35.10, this section specifies that, in addition to matters covered by section 18 of the National Guidelines, the Minister may take into account compliance with any conditions imposed in the course of initial accreditation.

Section 4.40 specifies that the Minister will provide reasons in writing for a refusal of an application as soon as possible after the decision.

Section 4.45 acknowledges that mutual recognition across jurisdictions will be in accordance with sections 12 and 19 of the National Guidelines.

Chapter 5 sets out information about applications for approval as a self-accrediting higher education entity other than a university in relation to an Australian external Territory and specifies matters to which the Minister will have regard in making decisions.

Section 5.5 requires the applicant to complete an approved application form addressing the evidence to be provided by initial applicants as set out in section 20 of the National Guidelines for Awarding Self-Accrediting Authority Higher Education Institutions other than Universities.

Sections 5.10 through 5.20 specify the main features of the assessment process. In particular, section 5.10.5 enables the Minister to request additional information where an application is found to be incomplete upon initial assessment, section 5.15 enables the Minister to decide that an application is lacking sufficient merit to warrant establishment of an assessment committee and section 5.20 describes how an assessment committee will be established should such be required.

Section 5.25 identifies the specific sections of the National Guidelines that apply in consideration of applications for awarding self-accrediting authority to a higher education entity in the external Territories. It also specifies the other matters the Minister may have regard to, including the offshore operations, if any, of the applicant, the recommendations of the assessment committee and the recommendations of the Department.

Section 5.30 specifies that an applicant may be approved to operate as a self-accrediting higher education entity other than a university in an external Territory for a maximum of five years. It also identifies that the Minister may impose conditions on the approval where these are deemed necessary, including on advice from the assessment committee or the Department. In particular, section 5.30.10 specifies that the Minister may require a successful applicant to comply with any or all of the post-approval processes identified in sections 13-19 of the National Guidelines for Awarding Self-Accrediting Authority Higher Education Institutions other than Universities.

Section 5.35 specifies the requirements for approval to extend the scope of an entity’s self-accrediting authority in an external Territory. At 5.35.10, this section specifies that, in addition to matters covered by section 20 of the National Guidelines for Awarding Self-Accrediting Authority to Higher Education Institutions other than Universities, the Minister may take into account compliance with any conditions imposed in the course of initial approval.

Section 5.40 specifies that the Minister will provide reasons in writing for a refusal of an application as soon as possible after the decision.

Section 5.45 acknowledges that mutual recognition across jurisdictions will be in accordance with section 12 of the National Guidelines for Awarding Self-Accrediting Authority Higher Education Institutions other than Universities.

Chapter 6 sets out information about applications for approval as a university in relation to an Australian external Territory and specifies matters to which the Minister will have regard in making decisions.

Section 6.5 requires the applicant to complete an approved application form addressing the evidence to be provided by initial applicants as set out in sections 16-19 of the National Guidelines for Establishing Australian Universities.

Sections 6.10 through 6.20 specify the main features of the assessment process. In particular, section 6.10.5 enables the Minister to request additional information where an application is found to be incomplete upon initial assessment, section 6.15 enables the Minister to decide that an application is lacking sufficient merit to warrant establishment of an assessment committee.

Section 6.20 describes how an assessment committee will be established should such be required, including consultation with applicant on proposed membership of the assessment committee. Section 6.20.15 specifies that one of the duties of the assessment committee is to notify the public about the proposed university and to conduct consultation with interested parties, both of which involve making public aspects of the proposal other than those commercial and in-confidence.

Section 6.25 identifies the specific sections of the National Guidelines that apply in consideration of applications for establishing a university in the external Territories. It also specifies the other matters the Minister may have regard to, including the offshore operations, if any, of the applicant, the recommendations of the assessment committee and the recommendations of the Department. Section 6.25.5 specifies that the Minister may approve an applicant with an unmodified university title, with a modified university title, or a university college title.

Section 6.30 specifies that an applicant may be approved to operate as a university with a specified title in an external Territory for an initial period of up to five years. It also identifies that the Minister may impose conditions on the approval where these are deemed necessary, including on advice from the assessment committee or the Department.

Section 6.35 specifies that the Minister may require a successful applicant to comply with any or all of the post-approval processes identified in sections 11-14 of the National Guidelines for Establishing Australian Universities.

Section 6.40 specifies the requirements for approval to continue to operate as a university in an external Territory. At 6.40.10, this section specifies that, in addition to matters covered by sections 16-19 of the National Guidelines for Establishing Australian Universities, the Minister may take into account compliance with any conditions imposed in the course of initial approval. At 6.40.15 through 6.40.25 this section further provides for an applicant to apply to move from operating as a university college in an external Territory to operating as a university in an external Territory.

Section 6.45 specifies that the Minister will provide reasons in writing for a refusal of an application as soon as possible after the decision.

Chapter 7 sets out information about approval of an application to operate as an overseas higher education entity in relation to an Australian external Territory and specifies matters to which the Minister will have regard in making decisions.

Section 7.5 requires the applicant to complete an approved application form addressing the evidence to be provided by initial applicants as set out in sections 17-19 of the National Guidelines for the Overseas Higher Education Institutions seeking to operate in Australia.

Sections 7.10 through 7.20 specify the main features of the assessment process. In particular, section 7.10.5 enables the Minister to request additional information where an application is found to be incomplete upon initial assessment, section 7.15 enables the Minister to decide that an application is lacking sufficient merit to warrant establishment of an assessment committee and section 7.20 describes how an assessment committee will be established should such be required.

Section 7.25 identifies the specific sections of the National Guidelines that apply in consideration of applications for registration as an overseas higher education entity in the external Territories. It also specifies the other matters the Minister may have regard to, including the offshore operations, if any, of the applicant, the recommendations of the assessment committee and the recommendations of the Department.

Section 7.30 specifies that an applicant may be approved to operate as an overseas higher education entity in an external Territory for a maximum of five years. It also identifies that the Minister may impose conditions on the approval where these are deemed necessary, including on advice from the assessment committee or the Department.

Section 7.35 specifies the requirements for approval to continue to operate as an overseas higher education entity in an external Territory. At 7.35.10, this section specifies that, in addition to matters covered by sections 17-19 of the National Guidelines, the Minister may take into account compliance with any conditions imposed in the course of initial approval.

Section 7.40 specifies that the Minister will provide reasons in writing for a refusal of an application as soon as possible after the decision.

Section 7.45 acknowledges that mutual recognition across jurisdictions will be in accordance with section 11 of the National Guidelines.

Chapter 8 sets out the circumstances in which the Minister may seek further information relating to an application for approval as a higher education entity or for accreditation of a course of study, in relation to an Australian external Territory. Non-compliance by the specified date with requests for further information will be construed as withdrawal of an application. Applicants may apply for further time to provide the information requested.

Chapter 9 identifies the circumstances in which a person that operates or purports to operate in an external Territory as a university or other provider of courses of study leading to higher education awards commits an offence under the Act and the Criminal Code (Cwth).

Appendix 1 provides definitions and a glossary of terms for interpretation of the Guidelines

Social Security (Public Interest Certificate Guidelines) (DEEWR) Amendment Determination 2008

28 August 2008

The Hon Julia Gillard MP

Minister for Education

Suite MG.41

Parliament House

CANBERRA ACT 2600

Dear Minister

I refer to the Social Security (Public Interest Certificate Guidelines) (DEEWR) Amendment Determination 2008 made under subparagraph 209(a)(i) and paragraph 209(b) of the Social Security (Administration) Act 1999. This instrument permits the disclosure of protected information to the Family Responsibilities Commission of Queensland.

The Explanatory Statement that accompanies this instrument notes that the Federal Privacy Commissioner was consulted in relation to new sections 16A and 16B but does not indicate what comments, if any, the Privacy Commissioner made about the sections. The Committee considers that it would assist in understanding the nature of the consultation that has been carried out if this information was included in the Explanatory Statement. Notwithstanding any changes to the Explanatory Statement, the Committee would appreciate further information on the Privacy Commissioner’s response to the new sections.

The Committee would appreciate your advice on the above matter as soon as possible, but before 12 September 2008, to enable it to finalise its consideration of this instrument. Correspondence should be directed to the Chair, Senate Standing Committee on Regulations and Ordinances, Room SG49, Parliament House, Canberra.

Yours sincerely

Senator Dana Wortley

Chair

15 September 2008

Senator Dana Wortley

Chair

Standing Committee on Regulations and Ordinances

Parliament House

CANBERRA ACT 2600

Dear Senator Wortley

Thank you for your letter of 28 August 2008 regarding the Explanatory Statement to the Social Security (Public Interest Certificate Guidelines) (DEEWR) Amendment Determination 2008 (DEEWR Amendment Determination).

The Explanatory Statement to the Amendment Determination notes that the Department of Families, Housing, Community Services and Indigenous Affairs (FAHCSIA) consulted with the Privacy Commissioner in relation to the sections inserted into the Social Security (Public Interest Certificate Guidelines) (DEEWR) Determination 2008 (DEEWR Determination) by the DEEWR Amendment Determination. FAHCSIA undertook this consultation in connection with the identical amendments made to the Social Security (Public Interest Certificate Guidelines) (FAHCSIA) Determination 2008 (FAHCSIA Determination). The DEEWR Determination was amended in June 2008 to mirror amendments made to the FAHCSIA Determination in May 2008 following this consultation, in order to ensure consistency in the application of the protected information provisions of the social security law.

As consultation with the Privacy Commissioner on the relevant sections was undertaken by FAHCSIA, it would be more appropriate for the Hon Jenny Macklin MP, Minister for Families, Housing, Community Services and Indigenous Affairs to reply to your inquiry and I have copied the Minister into my letter for her information.

Yours sincerely

Julia Gillard

Minister for Education

18 September 2008

The Hon Jenny Macklin MP

Minister for Families, Housing, Community Services and Indigenous Affairs

Suite MG.51

Parliament House

CANBERRA ACT 2600

Dear Minister

I refer to the Social Security (Public Interest Certificate Guidelines) (FAHCSIA) Amendment Determination 2008 and the Social Security (Public Interest Certificate Guidelines) (DEEWR) Amendment Determination 2008 made under subparagraph 209(a)(i) and paragraph 209(b) of the Social Security (Administration) Act 1999. These instruments, which mirror each other, permit the disclosure of protected information to the Family Responsibilities Commission of Queensland.

The Explanatory Statement that accompanies these instruments notes that the Federal Privacy Commissioner was consulted in relation to new sections 16A and 16B but does not indicate what comments, if any, the Privacy Commissioner made about the sections. The Committee considers that it would assist in understanding the nature of the consultation that has been carried out if this information were included in the Explanatory Statement. Notwithstanding any changes to the Explanatory Statement, the Committee would appreciate further information on the Privacy Commissioner’s response to the new sections. The Committee is writing to you at the suggestion of the Minister for Education.

The Committee would appreciate your advice on the above matter as soon as possible, but before 23 September 2008, to enable it to finalise its consideration of these instruments. Correspondence should be directed to the Chair, Senate Standing Committee on Regulations and Ordinances, Room SG49, Parliament House, Canberra.

Finally, thank you for your letter of 28 August 2008 offering to remove the phrase “an incorrectly held opinion” from these instruments. This addresses the Committee’s earlier concern and, as a result, the Committee will remove its disallowance notice on the FAHCSIA Determinations as soon as practicable, though it intends to maintain an interest in the issue of consultation. The Committee would appreciate your advice when the amendment to these instruments has been completed.

Yours sincerely

Senator Dana Wortley

Chair

23 September 2008

Senator Wortley

Chair

Se