The Tertiary Education Quality and Standards Agency Act 2011 established a new agency, TEQSA, to regulate higher education. It replaces state-based and specific agencies with a general agency which has wide responsibilities and powers. As Williams and Paillai summarize, the Act ‘requires regulated higher education providers to be registered with TEQSA before they can confer higher education awards. Registered entities are then required to have their courses of study accredited by TEQSA before these courses can be offered in connection with a regulated higher education award ... Failure to register with TEQSA, offering a regulated higher education award without being registered, offering a higher education award other than as a course of study and providing an unaccredited course of study, along with breaching the conditions of registration or accreditation, are made criminal offences’ (Williams & Pillai 2011: 293).

As regards universities, TEQSA takes the place of the Australian Universities Quality Agency (AUQA) which conducted regular audits. In a legislative instrument, the Higher Education Standards Framework (Threshold Standards) 2011, TEQSA adopts the Australian Qualifications Framework, a classification of educational awards of all kinds with criteria for each level. While AUQA put a heavy burden of compliance on universities, it was light regulation, producing reports which were largely advisory. (UNSW was audited in 2011, with specific focus on international programs and higher degree students.) By contrast, TEQSA’s powers are much broader. While the Agency has adopted Braithwaite’s regulatory pyramid (in which coercive action is only used after compliance has been sought through negotiation), it has also made clear that it intends to be much more active and interventionist than AUQA. The broad context is the Commonwealth Government’s extensive ambition to control Australian higher education.

Australian law degrees

Australia’s law schools face major problems because the AQF, now adopted by TEQSA, provides a series of round holes into which our square pegs don’t fit.

·            LLB: TEQSA treats a 3-year undergraduate degree as standard (at level 7). Combined degrees are regarded as no more than 2 undergraduate degrees. This ignores the reality that a combined degree is more than the sum of its parts. A student who completes the LLB after 5 or 6 years of combined study is different from one who has studied a 3-year LLB straight from high school.

·            Honours: TEQSA distinguishes Bachelor Honours as a separate level (8) qualification ’typically’ requiring an additional year of study. This conflicts with the widely accepted practice of embedded honours (ie honours being awarded to high-achieving students on the basis of their course marks and performance in research essays during the course of the LLB). Requiring honours students to study for an additional year after 5 or 6 years of UG study in a combined law degree is unrealistic. If we seek to be internationally competitive in attracting undergraduate students, lengthening our honours programs would be suicidal. Students from Hong Kong or Singapore can already go to the UK for a 3-year honours-included LLB. Why would they go (or their parents/funders send them) to Australia for 6 or 7 years? Honours is a particularly fraught issue at UNSW. Our historical experience shows why an embedded honours program is needed. For many years, we did not award honours degrees, with the result that our degree appeared to be internationally uncompetitive: our graduates had to explain to international employers and postgraduate program directors that their ‘pass’ degree was the equivalent of honours. My predecessors as dean provided a Claytons honours certificate by writing a letter confirming that, if we had an honours program, a student would have been awarded honours. In 2007, we finally introduced an honours program. It appears that TEQSA’s intervention may result in a return to pre-2007 nonsense.

·            Juris Doctor. The JD is a graduate degree, providing the same content (but a very different delivery) as the LLB to students who have already completed a non-law degree. The AQF does not provide a category of ‘graduate degree’, so the JD has to be forced into either Bachelors or Masters level. The current compromise is to consign the JD to a separate category of Masters (Extended) which is inappropriate: how can it be a real Masters degree if students haven’t completed a Bachelors degree in the discipline of law? Equally, it is not a Bachelors degree because the maturity and experience of the students allows (indeed requires) a different student experience. An enormous amount of time that has been wasted by this issue of categorization. There are real issues in differentiating the JD from the LLB, but these are substantial ones which are emerging as we provide a law degree for new groups of students who have a wide variety of previous study (ranging from UG to PhD) and work/life experience. The JD is a graduate degree, not Bachelors, not Masters.

·            Masters. The AQF requires that all Masters degrees must be of two years duration. If this is enforced, the LLM will die. Apart from the educational value of Masters degrees, the crude economic reality is that we can’t afford for this to happen. Cutting off international student fees from the LLM will have a major impact on our ability to do anything other than lecture undergraduates in large classes. The international standard for the LLM is one year of study. This is what leading international universities and our regional competitors offer, from Harvard Law School to the University of London, and the leading law schools in Canada, Singapore, and Hong Kong. There is no reason to believe that there is any problem with one year LLMs which needs to be fixed. Why are we being asked to change something which works into something that we know will not be attractive to students? Why would a student come to study an Australian 2-year LLM when she or he could go to the US or UK for one year?

Qualified to teach?

In its section on ‘Provider course accreditation standards’, the ‘Higher Education Standards Framework’ requires teaching staff to be ‘qualified to at least one Qualification Standards level higher than the course of study being taught or with equivalent professional experience’ (p.16). So, to teach the LLB, a teacher must have at least a LLM; to teach the JD, a teacher must have a PhD. (Who could teach in a PhD program is a mystery.)

This requirement encapsulates the problematic weakness of this kind of regulation. In the attempt to provide simple, economical quality assurance, regulators turn to proxies (preferably quantitative proxies) of quality. It must have seemed common sense to the drafter of these Standards that quality teaching could be ensured by a simple requirement of qualification level. Unfortunately, it demonstrates such a lack of understanding of how teaching is done in our universities that TEQSA’s credibility is undermined. Leaving aside the questionable claim of a link between a higher research degree and teaching quality, it ignores some basic facts about who teaches. First, many PhD students do some teaching: this is often a vital part of the academic apprenticeship, so that a PhD graduate has some teaching experience. Secondly, a recent graduate from a 5 year combined degree who is, for example, waiting to go overseas to do a LLM, is often an excellent teacher of introductory courses. Such people are clearly excluded from teaching. There are then those who might be said to have ‘equivalent professional experience’ – for example, legal academics who were appointed before a PhD became de rigueur or legal professionals who bring their experience and expertise into the classroom. In these cases, there is the prospect of endless bureaucracy as further standards of ‘professional experience’ are developed and applied.

The teaching qualification requirement will cause problems for most disciplines, but it will create particular difficulties for a law school like mine, which has a foundational commitment to small group, interactive teaching which, in current economic circumstances, can only be met by employing many sessional teachers. Does this mean that I am a dean who does not care about teaching quality and ruthlessly exploits non-continuing staff? On the contrary, teaching quality is checked by peer review and student feedback, both of which are much more reliable than a crude proxy. As for sessional staff, they are not a necessary evil to be minimized, but a crucial, multi-talented part of our faculty: many of them bring to the classroom the professional knowledge and experience which has to be included in legal education which seeks to emulate best practice. The necessary implication of TEQSA is that legal education should revert to traditional, mass, mono-directional lectures. Of course, this is not what is intended: but the perversity of misdirected regulation is never more apparent.

Nor are these objections to TEQSA expressions of the unnecessary legal idiosyncrasy which has often earned law schools no friends in university administration. As dean, I have been committed to having law accepted as a standard academic discipline in terms of both teaching and research, rather than insisting on our difference. However, here we are dealing with regulatory challenges to essential characteristics of our programs, yet there has been no identification of problems requiring remedy. On the contrary, TEQSA will damage without benefit.

TEQSA and regulatory principles

TEQSA is operating contrary to the principles of good regulation which are expressed in its own legislation.  The TEQSA Act includes (in Part 2) an admirable statement of ‘Basic principles for regulation’ with which TEQSA is bound to comply ‘when exercising a power under this Act in relation to a regulated entity. These are: (a) the principle of regulatory necessity; (b) the principle of reflecting risk; and (c) the principle of proportionate regulation’ (s.13).

First, regulatory necessity: ’TEQSA complies with the principle of regulatory necessity if its exercise of the power does not burden the entity any more than is reasonably necessary’ (s.13). The burden of compliance which TEQSA places on universities is far beyond what is reasonably necessary. At a time when there is concern about staff-student ratios, resources are being poured into compliance. (To give an example, an Associate Professor in my Law School has had to be largely withdrawn from teaching and research to work almost full-time on compliance.) The wasted resources are intellectual and financial: endless committees and compliance work not only takes colleagues’ time, it also drains their intellectual energy and commitment. I speak from experience: the reform agenda of my law school through our curriculum review keeps being side-tracked into compliance instead of substance.

Secondly, reflecting risk: ‘TEQSA complies with the principle of reflecting risk if its exercise of the power has regard to: (a) the entity’s history, including the history of: (i) its scholarship, teaching and research; and (ii) its students’ experiences; and (iii) its financial status and capacity; and (iv) its compliance with the Threshold Standards, this Act, this Act’s associated provisions and other laws regulating higher education; and (b) matters relating to the risk of the entity not complying with the Threshold Standards, this Act or this Act’s associated provisions in the future, including: (i) its internal quality assurance mechanisms; and (ii) its financial status and capacity’ (s.14).

UNSW is a university of international quality. There is nothing in its scholarship, teaching, research, students’ experiences or financial status and capacity which justifies intensive regulation. Regulation should target actual problems and potential risks. There is one risk identified in s.14 which may affect UNSW: the risk of not complying with the Threshold Standards which include the AQF. This is a notable example of circular regulation: regulation is justified by the risk of an institution not complying with regulation. From another perspective, the risk could be removed by removing the regulation.

Perhaps most importantly, TEQSA’s regulation of law schools also runs counter to some of the expressed ‘Objects’ of the TEQSA Act 2011 as defined in Part 3. These include ‘to protect and enhance ... Australia’s international competitiveness in the higher education sector’. It should be clear from the above that the AQF would seriously damage our international competitiveness in attracting both undergraduate and Masters students. TEQSA documents make repeated references to the significance of its international implications: for example, a section on ‘Principles and processes for the alignment of the AQF with International Qualifications Frameworks’ states that the benefits of such alignment include ‘providing a systematic basis for improving...the recognition of qualifications between nations’ and ‘assisting the international mobility of students ... by increasing confidence that their qualifications will be understood and recognised’ (p.105) As explained above, enforcement of the AQF’s ill-informed categories threatens to render both the LLB and the LLM internationally uncompetitive. This is abject regulatory parochialism which we cannot afford either educationally or financially.

Finally, there are problems with further objects of TEQSA: intrusive, unnecessary and expensive regulation obstructs rather than promotes ‘excellence, diversity and innovation in higher education in Australia’ and does nothing ‘to encourage and promote a higher education system that is appropriate to meet Australia’s social and economic needs for a highly educated and skilled population’.

Living with TEQSA

I have been told that my concerns about TEQSA are overstated, that the regulators are really concerned with dodgy language and cooking schools, not with established universities. This view has been encouraged by some public statements by TEQSA staff on visits to universities. However, the Minister for Tertiary Education’s Explanatory Statement on the Threshold Standards states unambiguously that they are ‘regulatory and enforceable rather than advisory’ (pp.5-6). While there is a commitment to focusing on ‘higher-risk providers, allowing lower-risk providers to operate without unnecessary intrusion’ (p.25), universities cannot assume they are safe because the statement goes on to warn that ‘it is not possible to describe or identify any particular provider or type of provider (for example, small or large, privately or publicly funded) that will be higher risk and therefore subject to greater regulatory scrutiny’ (p.29). Such statements merely reinforce the precautionary response by university lawyers and academic administrators: so long as there is a real risk of enforcement, they are bound to advise compliance. This is causing considerable friction within universities between those responsible for compliant academic administration and academics trying to conduct research and teach students.

A burden of compliance threatens to overtake teaching, research and community service as the main concern of universities. Academics who should be teaching students and conducting research are instead sitting in committees trying to work out how to comply with TEQSA. It is not just time that is wasted. Much more damagingly, initiative, morale and enthusiasm are drained. Whether the forum is the Council of Australian Law Deans, or an Academic Board or a school education committee, academics are not talking about how to teach and research in innovative, productive ways: they are talking about compliance. The irony of an initiative which is supposed to guarantee quality which in fact threatens it is too obvious to need pointing out.            A further irony is establishing an agency with a budget of $17,535m and a staff of 90 to police quality in universities where the single greatest threat to quality is lack of funding. What is even worse is that to do its job properly, TEQSA would require a much bigger budget and many more staff.

Good and bad regulation

There are some simple criteria for good regulation. It should be minimal in its compliance costs, so it should be directed against real or potential problems. The burden of regulation should not be disproportionate to these real or potential problems. If the current fad of standards-based regulation has to be followed, it should be used as an alternative to rules, not an imposition on areas not requiring regulation. Those responsible for designing regulation should have substantial understanding of the activity to be regulated.

Australia’s universities are being subjected to a regulatory regime which fails to meet these basic criteria. TEQSA is over-reaching, excessive and ill-informed. Regulation which is supposed to be about ensuring the international quality of Australian university education is instead threatening it. Invaluable time and energy is being diverted into worthless compliance exercises. The TEQSA Act and its accompanying panoply of regulation is a major threat to Australian university education.

This regulatory mess is a product of basic bureaucratic dysfunctions: excessive, generalised reactions to specific problems; institutional pressure for expansion and self-justification; officials and organisations seeking kudos and reward for having introduced something new; universities which have limited ability

to defend themselves politically; some academics who see career-advantages in learning to love TEQSA and becoming its instruments; political masters with insufficient time and interest to realise what is being done in their name; and a jargon which take over, distorting and redirecting thought and discussion. The one benefit which TEQSA will provide to universities is a dramatic example of bureaucratic excess and regulatory parochialism for future students of the sociology of institutions.

These comments will no doubt be taken by some as the complacent rejection of accountability and defence of the status quo by an arrogant Go8 Law Dean. On the contrary, I do not reject the need for accountability. But we are already held to account by multiple mechanisms of accountability: the University’s Academic Board supervises the Law School through program approvals and regular program reviews; professional bodies accredit our degrees; and the Council of Australian Law Deans has developed standards against which law schools will be tested. As for conservatism, I see need for change everywhere: during my tenure, UNSW Law has undertaken the broadest change and reform program since its establishment. My greatest objection to TEQSA is that it is deeply conservative in its effects, diverting time, energy and other resources from constructive change into apparently endless defensive engagement with pointless bureaucracy.

References

Stephen Corones (2012) ‘Consumer guarantees and the supply of educational services by higher degree providers’ UNSWLJ 35: 1-30).

George Williams & Sangeetha Pillai (2011) ‘Commonwealth power over higher education’ UQLJ 30: 287- 303