Earlier this year, the Tertiary Education Quality and Standards Agency (TEQSA) released a Consultation Paper entitled “Proposed changes to the publication of TEQSA’s decisions dated February 2017” (Consultation Paper). The Consultation Paper proposes important changes to the way in which TEQSA makes publication of its decisions, as recorded in its Policy on public reporting of TEQSA's decisions (Public Reporting Policy), including adverse decisions which can cause significant reputational and financial damage to higher education providers.

We were requested by several of our private higher education clients to submit a formal response to the Consultation Paper, which was lodged with TEQSA on 14 March 2017 (Response) (click here to view the response).

The Response articulates why the proposed changes could deny providers procedural fairness and why, in our view, the proposed changes fail to strike a fair balance between the interests of higher education providers and the broader public interest. We have advised against several proposed changes in that context and submitted a compromise position in respect of the proposed changes to the timing of publication of information about TEQSA's decisions.

The changes being proposed by TEQSA in the Consultation Paper to the Public Reporting Policy will be of most interest to private non-university higher education providers, as the key decisions made by TEQSA under the Tertiary Education Quality and Standards Agency Act 2011 (Cth) relate to applications for registration and re-registration, applications for accreditation and re-accreditation and the imposition of conditions on registration and accreditation. Decisions concerning accreditation will be of less interest to providers that have self-accrediting authority, including universities. While it is theoretically possible that TEQSA could make an adverse decision in relation to the registration of a university (for example, by renewing registration for less than the maximum period), this seems unlikely.

Nonetheless, the Public Reporting Policy is intended to be read in conjunction with TEQSA's Public Disclosure Policy (Public Disclosure Policy). This broader Policy sets out TEQSA's approach to public disclosure about its regulatory activities, which can and do extend to universities. These regulatory activities have in the past extended to sector-wide thematic investigations, including third-party relationships with agents. They could also relate to investigations concerning matters arising at a particular university only (for example, investigations concerning allegations of corruption levelled at senior executives of a university). Accordingly, universities have a strong interest in ensuring that TEQSA adopts a fair and reasonable approach to its Public Disclosure Policy and Public Reporting Policy.

We will continue to update you in respect of any developments regarding the Consultation Paper, the Public Disclosure Policy and Public Reporting Policy in future editions of Higher Education Focus.