Go8 queries legality of TEQSA

Draft policy document casts doubt on the use of corporations’ law to register and deregister universities The federal government’s reliance on corporations law to give a national regulator registration powers in higher education may be unconstitutional, Australia’s top-ranking universities say in a policy document yet to be released. The Group of Eight (Go8) is lobbying hard to stop the legislation until there is full public disclosure and discussion on the scope of powers to be bundled into the Tertiary Education Quality Standards Agency (TEQSA) when it becomes a legal entity. The legislation setting up the agency was to be presented to Parliament in the last sitting week. But after a November 9 “lock-up” - in which stakeholders were invited to review the draft - the legislation was sent back to the drawing board. Discussions are continuing and it is now planned to table the legislation in autumn 2011. It is understood those privy to the discussions were asked to sign a confidentiality agreement on the details in the draft. The need for such confidentiality is also being questioned by the Go8, which has been pushing for open discussion for some time. The concerns by the group, which includes the University of NSW, the University of Sydney, Monash, the University of Adelaide, the University of Melbourne, the Australian National University, the University of Western Australia and the University of Queensland, will be made public next week. Campus Review has sighted the lengthy draft of the policy backgrounder that will be published on the group’s website this week. Not only does it query the constitutionality of the Government relying on corporations power to override the power of the states, the whole paper runs arguments against the changes TEQSA would have on the legal and regulatory environment for universities. The authors of the document say there are some strictly legal problems with what has been proposed. “There is some doubt that the corporations power enables the Commonwealth to register and deregister universities, as this would have the effect of invalidating state acts establishing universities. This may be unconstitutional,” it is argued in the draft paper. Go8 executive director Mike Gallagher told Campus Review the document had input from the legal departments of all eight universities. Constitutional law expert Professor George Williams, of the University of NSW, told Campus Review the situation was complex. He said at present the law suggests universities would be seen as trading corporations, but this has never been properly tested in the High Court. “There’s a real possibility that the federal power would stop short of regulating universities,” Williams said. “But that’s an uncertainty, and in the end only the High Court could determine it.” Priorities identified by the Go8 are not the same as those across the univesity sector. Professor Peter Coaldrake, vice-chancellor of Queensland University of Technology and chairman of Universities Australia, who was at the budget-style lock-up, did identify significant issues for universities in what was presented. He said their (UA’s) overarching concern was that legislation strongly assert the self-governing, autonomous character of universities and the important public benefits of that character being protected in the legislation. The main issues were “... a perceived absence in the draft of explicit provisions on the risk-based proportionate approach TEQSA is to adopt in its approach to legislation”. Another issue was a “perceived lack of checks and balances and a sense of disproportionality in the enforcement and compliance provisions of the draft legislation.” He confirmed discussions were continuing and he believed they would take place before Christmas. He said UA was taking a constructive approach in proving feedback on the draft proposals. “And I would have to say that the government has been very receptive to the concerns expressed. “Regardless of what private views individuals might have of the confidential nature of the process, UA is getting on with the business of working with the government on the legislative proposals. “The expertise that UA is bringing to the table includes significant legal and corporate expertise. We are also ensuring that different perspectives within the sector are represented in the room.” On the issue of public disclosure and open discussion he said he recognised this was a matter for government. “However our strong view would be that the building of trust will always be assisted by public disclosure. And that view is one that we will continue to convey to government and of course we prefer it.” Australian Catholic University vice-chancellor Professor Greg Craven, an expert in public law who is cited in the Go8 draft policy document, is among those representing the sector in the government lock-up. He told Campus Review he was not in a position to comment on the constitutional points raised in the draft Go8 document. He questioned the wisdom of a paper like this right now. “I do not believe that this is the time for any part of the sector to be adopting positions that suggest they are opposed for any reason to a national regulator with teeth,” he said. “I think that the commonwealth and representatives of Universities Australia engaged in a highly co-operative discussions and that is what we should be doing now.” He said anything that could be seen to be derailing that process was against the interests of the universities. He described the discussions with government as mutually respectful. He said they were being held in good faith and said a paper like this from the Go8 was “highly inopportune”. He said any argument against regulation would harm the position of universities. Craven also said the lock-up and confidentiality process was not unusual for this stage of any legislation and the commonwealth had engaged in different discussions with different partners at different times. “I do not think there is a cone of silence preventing people from knowing what is going on.” As a person who has worked quite a lot in and with government it is in no sense unusual for government to seek to develop initial legislation in confidence, he said. “I certainly hope and expect that there will be a more public airing of the proposals in due course”.