Tertiary Education Quality and Standards Agency (Registered Higher Education Provider Charge) Guidelines 2022

The Tertiary Education Quality and Standards Agency hereby makes these Guidelines under section 204 of the Tertiary Education Quality and Standards Agency Act 2011

Dated: 29 November 2022

Contents

1  Name

  This instrument is the Tertiary Education Quality and Standards Agency (Registered Higher Education Provider Charge) Guidelines 2022

2  Commencement

 (1) Each provision of this instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Note: This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.

 (2) Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument.

3  Authority

  This instrument is made under section 204 of the Tertiary Education Quality and Standards Agency Act 2011.

4  Definitions

In this instrument:

Act means the Tertiary Education Quality and Standards Agency Act 2011.

base component: see subsection 5(2) and section 6 of the Charging Regulations

Charges Act means the Tertiary Education Quality and Standards Agency (Charges) Act 2021

Charging Regulations means the Tertiary Education Quality and Standards Agency (Charges) Regulation 2022

compliance assessment means an assessment commenced under section 59 or 61 of the Act

compliance component: see subsection 5(4) of the Charging Regulations

compliance undertaking has the meaning provided in section 4 of the Charging Regulations

component means the base component or the compliance component of the registered higher education provider charge

conditions means conditions imposed on the registration of a registered higher education provider by TEQSA under subsection 10B(1) or 83(3) of the Education Services for Overseas Students Act 2000 or subsection 32(1) of the Act, and, conditions imposed on the accreditation of a course of study by TEQSA under subsection 53(1) of the Act

primary course of study means the course of study from which all of the subjects or units comprising a related course of study are taken

registered higher education provider has the meaning provided in section 5 of the Act

registered higher education provider charge means the charge imposed on a registered higher education provider by the Charges Act

related course of study means a course of study comprised entirely of subjects or units taken from another course of study offered by the same registered higher education provider (the primary course of study)

TEQSA means the body established by section 132 of the Act

5  Notice of amount of registered higher education provider charge

(1) For the purposes of paragraphs 26C(2)(a) and (b) of the Act, for each year after 2022, TEQSA must issue a written notice to each registered higher education provider who is liable to pay the registered higher education provider charge, which specifies:

(a)  the year to which the notice relates;

(b) the amount of each component of the provider’s charge for that year;

(c) the total amount of the provider’s charge for that year;

(d) an explanation of how each component of the provider’s charge was calculated;

(e) the day by which the charge is due and payable by the provider, which must be at least 30 days after the day the notice is given; and

(f) the method or methods by which the provider must pay the charge.

(2) A failure to give a registered higher education provider the notice under subsection (1) does not affect the liability of the provider to pay the registered higher education provider charge.

Note 1: the registered higher education provider charge is imposed on a registered higher education provider under the Charges Act.

Note 2: Subsection 26C(1) of the Act requires a registered higher education provider to pay the registered higher education provider charge when it is due and payable. This is a condition of registration for the purposes of section 24 of the Act.

(3) A notice under subsection (1) does not need to be given if the liability to pay the whole of the registered higher education provider charge is waived under section 6.

6  Waiver

Special or unusual circumstances

(1)     For the purposes of paragraph 26C(2)(f) of the Act, TEQSA may waive the requirement to pay the registered higher education provider charge, or a part of that charge, where, in TEQSA’s opinion, special or unusual circumstances exist which would cause the charge (or part of the charge) to be unreasonable.

(2)     In deciding whether to exercise its discretion under subsection 6(1), TEQSA must have regard to the policy objectives underlying the imposition of the registered higher education provider charge. These are:

(a) the objective of recovering the costs associated with TEQSA’s regulatory effort for non-application based activities that are not attributable to individual providers; and

(b) the objective of recovering the costs associated with TEQSA’s regulatory effort in undertaking provider specific compliance activities including investigations, compliance assessments and monitoring compliance by providers with conditions and compliance undertakings. 

(3)     Where TEQSA determines to waive the requirement to pay the registered higher education provider charge, or a part of the charge under subsection 6(1), TEQSA must issue the registered higher education provider with a written notice. The notice must specify:

(a) the part(s) of the registered higher education provider charge TEQSA has waived, or, that the whole of the registered higher education provider charge has been waived; and

(b) the reason(s) why the part(s) or whole of the registered higher education provider charge has been waived.

(4)     For the purposes of subsection 6(1), the following circumstances do not constitute special or unusual circumstances:

(a) where the registered higher education provider required to pay the charge did not consent to the imposition of the relevant condition or the commencement of the relevant compliance assessment or investigation that is the subject of a charge; or

(b) where the registered higher education provider required to pay the charge does not agree with the outcome of the compliance assessment or investigation that is the subject of a charge; or

(c) where the registered higher education provider required to pay the charge ceases to exist or ceases to be registered under Part 3 of the TEQSA Act.              

Conditions

(5)     For the purposes of paragraph 26C(2)(f) of the Act, the liability of a registered higher education provider to pay the part of the registered higher education provider charge set out in paragraph 5(4)(d) of the Charging Regulations for a condition applying to the accreditation of a related course of study is waived if:

(a) the same condition applies accreditation of the primary course of study from which the related course of study is drawn; and

(b) TEQSA is satisfied that the regulatory effort involved in monitoring compliance by the provider with the condition applying to the accreditation of the related course of study will cost less than the amount set out in paragraph 5(4)(d) of the Charging Regulations.

(6)     Where the requirement to pay the part of the registered higher education provider charge set out in paragraph 5(4)(d) of the Charging Regulations is waived under subsection 6(5), TEQSA must issue the registered higher education provider with a written notice. The notice must specify:

(a) the details of the condition that applies to both the primary and related course(s) of study; and

(b) the related course(s) of study for which the part of the registered higher education provider charge set out in paragraph 5(4)(d) of the Charging Regulations is waived.

Registration

(7) For the purposes of paragraph 26C(2)(f) of the Act, liability to pay the registered higher education provider charge for a year is waived if:

(a) the provider’s registration is cancelled under the Act; or

(b) the provider has ceased to operate

     prior to the time when an notice issued under section 5 has been paid.

7  Proportionate refund – base component of charge

(1)     Where a provider’s registration ends after the provider has paid the amount set out in a notice issued under section 5 but before 1 January of the following year, TEQSA may refund a proportion of the base component of the registered higher education provider charge.

(2)     Where TEQSA determines under subsection 7(1) to provide a refund, the amount refunded must be calculated according to the following formula:

(3)     Where TEQSA determines under subsection 7(1) to provide a refund, TEQSA must issue the former registered higher education provider with a written notice setting out the decision and how the amount to be refunded was calculated.

 8  Internal review

(1)     For the purposes of paragraph 26C(2)(g) of the Act, a registered higher education provider may request that TEQSA reconsider:

(a) a notice issued under section 5 in relation to the determination of the value of the components of the registered higher education provider charge;

(b) a decision made under subsection 6(1) not to waive the requirement to pay the registered higher education provider charge or a part of that charge;

(c) a decision made under subsection 6(5) not to waive the requirement to pay part of the registered higher education provider charge in relation to a condition applying to a particular course of study; or

(d) a decision made under section 7 not to provide a partial refund of the base component of the registered higher education provider charge.

(2)     Each of paragraphs (1)(a) – (d) is a reviewable decision for the purposes of this section.

(3)     A request from a registered higher education provider for reconsideration of a reviewable decision must:

(a) be in writing;

(b) set out the reasons for the request;

(c) be given to TEQSA within:

(i)          14 days of the day on which TEQSA notified the registered higher education provider of the reviewable decision; or

(ii)          such longer period as TEQSA allows.

(4)  After receiving the request, TEQSA must reconsider the reviewable decision and:

 (a) confirm the decision;

 (b) vary the decision; or

 (c) set the decision aside and substitute a new decision.

(5) The TEQSA must give the registered higher education provider written notice of TEQSA’s decision (internal review decision) made under subsection (4).

(6) The notice under subsection (5):

 (a) must be given within 7 days after the internal review decision is made;

 (b) must contain a statement of the reasons for the internal review decision; and

 (c) if paragraph 8(4)(b) or (c) applies, include a new notice issued under the relevant section. A new notice issued under section 5 must include a due date at least 30 days after the date the provider is notified of the internal review decision.

9  Administrative Appeals Tribunal review

For the purposes of paragraph 26C(2)(g) of the Act, an application may be made to the Administrative Appeals Tribunal for the review of a decision that has been confirmed, varied or set aside under section 8.