Universities Accord (National Student Ombudsman) Act 2024 (Cth)

Universities Accord (National Student Ombudsman) Act 2024 No. 139, 2024 An Act to amend the Ombudsman Act 1976, and for related purposes Contents 1 Short title 2 Commencement 3 Schedules Schedule 1—National Student Ombudsman Part 1—Main amendments Ombudsman Act 1976 Part 2—Other amendments National Anti‑Corruption Commission Act 2022 Ombudsman Act 1976 Privacy Act 1988 Tertiary Education Quality and Standards Agency Act 2011 Part 3—Application and transitional provisions Part 4—Contingent amendments Ombudsman Act 1976 Universities Accord (National Student Ombudsman) Act 2024 No. 139, 2024 An Act to amend the Ombudsman Act 1976, and for related purposes [Assented to 10 December 2024] The Parliament of Australia enacts: 1 Short title This Act is the Universities Accord (National Student Ombudsman) Act 2024. 2 Commencement (1) Each provision of this Act 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. Commencement information Column 1 Column 2 Column 3 Provisions Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day this Act receives the Royal Assent. 10 December 2024 2. Schedule 1, Parts 1 to 3 The later of: 1 February 2025 (a) 1 February 2025; and (paragraph (a) applies) (b) the day after the end of the period of 1 month beginning on the day this Act receives the Royal Assent. 3. Schedule 1, Part 4 The later of: (a) immediately after the commencement of the provisions covered by table item 2; and (b) immediately after the commencement of Part 2 of Schedule 1 to the Intelligence Services Legislation Amendment Act 2024. However, the provisions do not commence at all if the event mentioned in paragraph (b) does not occur. Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act. (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act. 3 Schedules Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—National Student Ombudsman Part 1—Main amendments Ombudsman Act 1976 1 Title Omit "and a VET Student Loans Ombudsman", substitute ", a VET Student Loans Ombudsman and a National Student Ombudsman". 2 Subsection 3(1) Insert: alternative dispute resolution process means a procedure or service that: (a) is for the resolution of disputes, including mediation and conciliation (but not including arbitration or court processes or services); and (b) does not involve the exercise of the judicial power of the Commonwealth. Commonwealth entity has the same meaning as in the Public Governance, Performance and Accountability Act 2013. constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies. constitutional provider means: (a) a constitutional corporation; or (b) a body corporate that is established by or under a law of the Commonwealth or a Territory. engage in conduct means: (a) do an act; or (b) omit to do an act. excluded action has the meaning given by subsections 21AD(3) and (4). Higher Education Department means the Department administered by the Higher Education Minister. Higher Education Minister means the Minister administering the TEQSA Act. higher education officer, of a higher education provider, means a person who: (a) is an officer or employee of the provider; or (b) performs services for or on behalf of the provider (other than a person covered paragraph (a)). higher education principal executive officer, of a higher education provider, means the person who has executive responsibility for the operation of the provider. higher education provider means a constitutional provider that is: (a) registered under Part 3 of the TEQSA Act; and (b) listed on the National Register of Higher Education Providers under paragraph 198(1)(a) of that Act. higher education student, of a higher education provider, means: (a) a student enrolled in any course of study with the higher education provider (other than a student enrolled only in a VET course with the provider); or (b) a prospective student, or a former student, in relation to any course of study (other than a VET course) with the higher education provider. Note: A course of study includes, for example, an enabling course and a microcredential course. National Student Ombudsman Rules means rules made under section 21AZL. restorative engagement process means a facilitated process that: (a) is for the purpose of a complainant engaging with a higher education officer of a higher education provider that is the subject of the complainant's complaint to have the complaint acknowledged; and (b) does not involve the exercise of the judicial power of the Commonwealth. State or Territory body includes a Department of State, or an authority or agency, of a State or Territory. takes a reprisal: see section 35D. TEQSA (short for Tertiary Education Quality and Standards Agency) means the body established by section 132 of the TEQSA Act. TEQSA Act means the Tertiary Education Quality and Standards Agency Act 2011. VET course has the same meaning as in the National Vocational Education and Training Regulator Act 2011. 3 After subsection 3(6D) Insert: (6E) For the purposes of this Act, action that is taken by a person is deemed to be have been taken by a higher education provider if the person takes, or purports to take, the action because the person is the higher education principal executive officer, or a higher education officer, of the provider, whether or not: (a) the action is taken for or in connection with, or as incidental to: (i) performing services for or on behalf of the provider; or (ii) carrying out the person's powers, duties and functions as an employee in the provider's service, or as an officer of the provider; or (b) the taking of the action is within the person's duties as the higher education principal executive officer, or a higher education officer, of the provider. 4 At the end of paragraph 4A(e) Add: ; and (vii) the functions of the National Student Ombudsman referred to in section 21AC. 5 After Part IIE Insert: Part IIF—National Student Ombudsman Division 1—Introduction 21AA Simplified outline of this Part There is to be a National Student Ombudsman. The National Student Ombudsman's main functions are: (a) to deal with complaints about actions taken by higher education providers; and (b) to conduct investigations into actions taken by higher education providers, on the National Student Ombudsman's own initiative; and (c) to give higher education providers advice and training on handling complaints. However, the National Student Ombudsman cannot deal with complaints about, or investigate, certain kinds of actions (called excluded actions) taken by higher education providers. Complaints can be made to the National Student Ombudsman by higher education students of higher education providers. The National Student Ombudsman can deal with complaints by referring the complaint to the higher education provider for investigation, by using alternative dispute resolution processes or restorative engagement processes or by conducting an investigation. Following an investigation, the National Student Ombudsman can give a report to a higher education provider with recommendations. The National Student Ombudsman will also prepare annual reports and, as necessary, periodic reports of the operations of the National Student Ombudsman. The National Student Ombudsman has information gathering powers under this Part and other powers under this Act (as applied by this Part). This Part also deals with miscellaneous matters, including the power to make National Student Ombudsman Rules. Division 2—Establishment and functions 21AB Establishment of office of National Student Ombudsman (1) For the purposes of this Act, there is to be a National Student Ombudsman. (2) The office of National Student Ombudsman is to be held by the person who holds the office of Commonwealth Ombudsman. (3) The reference in subsection (2) to the person who holds the office of Commonwealth Ombudsman includes a reference to a person for the time being acting in that office because of an appointment under section 29. 21AC Functions of National Student Ombudsman The National Student Ombudsman has the following functions: (a) dealing with complaints under Division 3 of this Part; (b) conducting investigations under Division 4 of this Part; (c) reporting and making recommendations under Division 5 of this Part; (d) giving higher education providers advice and training about the best practice for the handling of complaints made by, or on behalf of, higher education students; (e) such other functions conferred on the National Student Ombudsman by this Act or another Act, or a legislative instrument made under this Act or another Act. Division 3—Complaints Subdivision A—Complaints to the National Student Ombudsman 21AD Making a complaint Who can make a complaint (1) A complaint may be made to the National Student Ombudsman against a higher education provider: (a) by a higher education student of the provider; or (b) on behalf of a higher education student of the provider. Grounds for complaint (2) The complaint may be about any action (other than an excluded action) taken by a higher education provider. (3) Each of the following actions taken by a higher education provider is an excluded action: (a) any action taken with respect to a person employed by a higher education provider, being action taken in relation to that employment; (b) any action taken with respect to the appointment of a person to an office of a higher education provider; (c) any action to the extent that the action involves the exercise of academic judgement; (d) any action to the extent that the action is taken with respect to: (i) a VET course; or (ii) a student who is not a higher education student of the provider; (e) any other kind of action prescribed by the National Student Ombudsman Rules for the purposes of this paragraph. (4) Despite subsection (3), an action is not an excluded action if the action is an action of a kind prescribed by the National Student Ombudsman Rules for the purposes of this subsection. 21AE Complaints taken to be made to the National Student Ombudsman Complaints transferred from a prescribed body (1) A complaint, or part of a complaint, about an action taken by a higher education provider is taken to be a complaint made to the National Student Ombudsman under this Part if: (a) the complaint was made to a prescribed body by, or on behalf of, a higher education student of the provider; and (b) the prescribed body transfers the complaint, or part of the complaint, to the National Student Ombudsman in accordance with a law of the Commonwealth, a State or a Territory. Note: See also subsection 21AZF(1) for when complaints made to the Commonwealth Ombudsman, Overseas Students Ombudsman or VET Student Loans Ombudsman can be dealt with as complaints made to the National Student Ombudsman under this Part. Transfer of complaints and sharing of information and documents (2) A prescribed body may transfer to the National Student Ombudsman a complaint, or part of a complaint, about an action taken by a higher education provider that was made to the prescribed body by, or on behalf of, a higher education student of the provider. (3) A prescribed body is authorised to disclose to the National Student Ombudsman any information or documents in the possession, or under the control, of the prescribed body that relate to a complaint of a kind mentioned in subsection (2) for the purpose of: (a) transferring, or determining whether to transfer, the complaint to the National Student Ombudsman; or (b) assisting the National Student Ombudsman to perform its functions or duties or exercise its powers under this Part in relation to action taken by higher education providers. Note: This subsection constitutes an authorisation for the purposes of the Privacy Act 1988 and other laws. (4) Subsections (2) and (3) have effect despite anything in another law of the Commonwealth, or a law of a State or Territory: (a) whether written or unwritten; and (b) whether enacted before or after the commencement of this Part. Definitions (5) In this section: prescribed body means: (a) an Ombudsman of a State; or (b) a State or Territory body prescribed by the National Student Ombudsman Rules for the purposes of this paragraph; or (c) a Commonwealth entity prescribed by the National Student Ombudsman Rules for the purposes of this paragraph. Subdivision B—Dealing with complaints 21AF Initial receipt of complaint On receiving a complaint against a higher education provider, the National Student Ombudsman may: (a) inform the higher education provider of the nature of the complaint; and (b) make inquiries under section 21AZ, or give a notice under section 21AZA, in relation to the higher education provider. 21AG Ways of dealing with complaints (1) The National Student Ombudsman may deal with a complaint made under this Part about an action taken by a higher education provider in one or more of the following ways: (a) referring the complaint to the higher education provider under Subdivision C of this Division; (b) using an alternative dispute resolution process under Subdivision D of this Division; (c) using a restorative engagement process under Subdivision E of this Division; (d) conducting an investigation under Division 4 of this Part. (2) The National Student Ombudsman must not take any action mentioned in subsection (1) unless the complainant agrees to the action being taken. (3) The National Student Ombudsman must not take, or continue to take, any action mentioned in subsection (1) if the complainant withdraws the complaint. (4) The National Student Ombudsman must not take any action mentioned in subsection (1) if the complaint is about an excluded action. 21AH Referral of matters raised in complaints (1) The National Student Ombudsman may refer a matter raised in a complaint made under this Part to another Commonwealth entity or a State or Territory body if: (a) the National Student Ombudsman is of the opinion that the matter could be dealt with more effectively or conveniently by the other Commonwealth entity or the State or Territory body; and (b) the complainant agrees to the matter being referred. (2) If the National Student Ombudsman refers the matter to another Commonwealth entity or a State or Territory body, the National Student Ombudsman must: (a) give written notice to the complainant of the referral; and (b) give the Commonwealth entity or the State or Territory body any information or documents that relate to the complaint and that are in the possession, or under the control, of the National Student Ombudsman. 21AJ Deciding not to deal with a complaint The National Student Ombudsman may decide not to deal, or not to continue to deal, with a complaint made under this Part about an action taken by a higher education provider if, in the opinion of the National Student Ombudsman: (a) the complaint is frivolous or vexatious, or was not made in good faith; or (b) the complainant does not have a sufficient interest in the subject matter of the complaint; or (c) the complainant has not yet raised the subject matter of the complaint with the higher education provider; or (d) the action is an excluded action; or (e) the complaint has been, is being, or is to be dealt with by another Commonwealth entity, an Ombudsman of a State or a State or Territory body; or (f) the action has been, is being, or is to be reviewed by a court or by a tribunal constituted by or under an enactment; or (g) to deal, or continue to deal, with the complaint is not warranted having regard to all the circumstances. Subdivision C—Referral of complaint to higher education provider 21AK Referral to the subject of the complaint The National Student Ombudsman may refer a complaint made under this Part about action taken by a higher education provider to the provider and request the provider: (a) to investigate the complaint; and (b) to report to the National Student Ombudsman on the outcome of the investigation and any action that the provider proposes to take as a result, before the end of the period specified in the request. Note: The National Student Ombudsman must have the complainant's agreement to act under this section (see subsection 21AG(2)). 21AL Recommendations as a result of referral of complaint to higher education provider After receiving a report from a higher education provider after referral of a complaint to the provider for investigation under section 21AK, the National Student Ombudsman may make recommendations to the higher education principal executive officer of the provider that the National Student Ombudsman thinks fit to make. Subdivision D—Alternative dispute resolution 21AM Conducting an alternative dispute resolution process (1) The National Student Ombudsman may try to settle a complaint made under this Part by using an alternative dispute resolution process conducted by: (a) the National Student Ombudsman; or (b) a person engaged by the Ombudsman under section 31A. Note: The National Student Ombudsman must have the complainant's agreement to act under this section and cannot continue if the complaint is withdrawn (see subsections 21AG(2) and (3)). (2) A person's participation in an alternative dispute resolution may be: (a) voluntary; or (b) required by a direction given to the person by the National Student Ombudsman under section 21AN. (3) A person required to participate in an alternative dispute resolution process must act in good faith in relation to the conduct of the alternative dispute resolution process. Alternative dispute resolution practitioners (4) Subject to section 35, a person engaged by the Ombudsman under section 31A to conduct an alternative dispute resolution process under this Subdivision is not personally liable to an action or other proceeding for damages in relation to anything done or omitted to be done, reasonably and in good faith, in or in relation to the conduct of the alternative dispute resolution process. 21AN Participation in alternative dispute resolution process may be compulsory (1) The National Student Ombudsman may direct a higher education provider that is the subject of a complaint made under this Part to participate in an alternative dispute resolution process. (2) The National Student Ombudsman Rules may prescribe matters to which the National Student Ombudsman is to have regard when deciding whether or not to give a direction under subsection (1). (3) The direction must: (a) be in writing; and (b) name either or both of the following: (i) the higher education provider that is subject of the complaint; (ii) a higher education officer of that higher education provider; and (c) be given to those named in it; and (d) specify the time of the alternative dispute resolution process, which must not be earlier than 14 days after the day the direction is given; and (e) specify the place of the alternative dispute resolution process. Note: Subsection 33(3) of the Acts Interpretation Act 1901 has the effect that the direction may be varied or revoked. (4) A direction under subsection (1) is not a legislative instrument. Offence (5) A person commits an offence if: (a) the person is directed under subsection (1) to participate in an alternative dispute resolution process; and (b) the other party to the alternative dispute resolution process attends, or was willing to attend, the alternative dispute resolution process; and (c) the person fails to participate in part or all of the alternative dispute resolution process. Penalty: 10 penalty units. 21AP Ceasing alternative dispute resolution process Compulsory alternative dispute resolution (1) An alternative dispute resolution process in which a higher education provider is directed to participate ceases: (a) if the higher education provider and the complainant agree to settle the matter; or (b) if the National Student Ombudsman concludes that the matter cannot be settled by using an alternative dispute resolution process. (2) The National Student Ombudsman Rules may prescribe matters to which the National Student Ombudsman is to have regard before concluding that a matter cannot be settled by using an alternative dispute resolution process. Reports (3) A person engaged by the Ombudsman under section 31A to conduct an alternative dispute resolution process under this Subdivision must, as soon as practicable after the alternative dispute resolution process is conducted or should have been conducted, report to the National Student Ombudsman about: (a) whether the alternative dispute resolution was conducted; and (b) if the alternative dispute resolution failed—the reasons for the failure; and (c) if the parties agreed to settle the complaint—the terms of the settlement, including any action to be taken. 21AQ Admissibility of things said in alternative dispute resolution process (1) Evidence of anything said, or any admission made, during participation in an alternative dispute resolution process under section 21AM is not admissible: (a) in any court (whether exercising federal jurisdiction or not); or (b) in any proceedings before a person authorised by a law of the Commonwealth or of a State or Territory, or by the consent of the parties, to hear evidence. (2) This section applies whether or not a higher education provider is directed to participate in the alternative dispute resolution process. Subdivision E—Restorative engagement process 21AR Conducting a restorative engagement process (1) The National Student Ombudsman may conduct a restorative engagement process in relation to a complaint made under this Part about an action taken by a higher education provider. Note: The National Student Ombudsman must have the complainant's agreement to act under this section and cannot continue if the complaint is withdrawn (see subsections 21AG(2) and (3)). (2) A person's participation in a restorative engagement process is voluntary. 21AS Admissibility of things said in restorative engagement process Evidence of anything said, or any admission made, during participation in a restorative engagement process under section 21AR is not admissible: (a) in any court (whether exercising federal jurisdiction or not); or (b) in any proceedings before a person authorised by a law of the Commonwealth or of a State or Territory, or by the consent of the parties, to hear evidence. Division 4—Investigations 21AT Investigations (1) The National Student Ombudsman may investigate action taken by a higher education provider: (a) on complaint made under this Part; or (b) on the National Student Ombudsman's own initiative. (2) However, the National Student Ombudsman must not investigate an excluded action. 21AU Conduct of investigations Provider to be informed (1) The National Student Ombudsman must, before starting an investigation under this Part in relation to action taken by a higher education provider, inform the higher education principal executive officer of the provider that the action is to be investigated. Investigations to be in private (2) An investigation under this Division must be conducted in private and, subject to this Act, in such manner as the National Student Ombudsman thinks fit. Right to make submissions (3) The National Student Ombudsman must not make a report under section 21AV that sets out opinions that are, either expressly or impliedly, critical of a higher education provider or a higher education officer of the provider unless, before completing an investigation under this Division, the National Student Ombudsman has: (a) if the opinions relate to the higher education provider—afforded the higher education principal executive officer of the provider the opportunity to make written submissions about the matter that is the subject of the investigation as the higher education principal executive officer thinks fit; or (b) if the opinions relate to a higher education officer of the provider—afforded the higher education officer the opportunity to make written submissions about the matter that is the subject of the investigation as the higher education officer thinks fit. Division 5—Reporting by the National Student Ombudsman 21AV Reports to higher education providers (1) This section applies if: (a) an investigation under this Part into action taken by a higher education provider has been completed; and (b) the National Student Ombudsman is of the opinion that the action taken: (i) appears to have been contrary to law; or (ii) was unreasonable, unjust, oppressive or improperly discriminatory; or (iii) was otherwise, in all the circumstances, wrong; and (c) the National Student Ombudsman is of the opinion that: (i) some particular action could be, and should be, taken to rectify, mitigate or alter the effects of the action taken; or (ii) a policy or practice on which the action taken was based should be altered; or (iii) reasons should have been, but were not, given for the action taken; or (iv) any other thing should be done in relation to the action taken. (2) The National Student Ombudsman must report accordingly to the higher education provider. (3) The National Student Ombudsman: (a) must include in the report the National Student Ombudsman's reasons for the opinions specified in the report; and (b) may also include in the report any recommendations the National Student Ombudsman thinks fit to make. (4) The National Student Ombudsman may ask the higher education provider to give the National Student Ombudsman, within a specified time, particulars of any action that the higher education provider proposes to take with respect to the matters and recommendations included in the report. (5) The higher education provider may give the National Student Ombudsman comments about the report. (6) The National Student Ombudsman may give a copy of the report, and any comments given under subsection (5), to one or more of following: (a) the Higher Education Minister; (b) the Secretary of the Higher Education Department; (c) the Chief Executive Officer of TEQSA. 21AW Higher Education Minister to table reports about higher education providers in Parliament (1) This section applies if: (a) the National Student Ombudsman has given a report to a higher education provider under section 21AV; and (b) in the opinion of the National Student Ombudsman, the higher education provider has not taken adequate and appropriate action in respect of the matters and recommendations included in the report within a reasonable time after the report was given to the provider. (2) The National Student Ombudsman may: (a) give to the Higher Education Minister a copy of the report and any comments given under subsection 21AV(5) (if not already given to that Minister under section 21AV); and (b) request the Higher Education Minister to cause copies of the report and any comments to be laid before each House of the Parliament. (3) If the National Student Ombudsman makes a request under paragraph (2)(b), the Higher Education Minister must cause copies of the report and any comments to be laid before each House of the Parliament within 15 sitting days of that House after the Higher Education Minister receives the request. 21AX Reports of the National Student Ombudsman Annual and other reports (1) As soon as practicable after the end of each financial year, the National Student Ombudsman must give an annual report to the Minister administering this Act, for presentation to the Parliament, on the operations of the National Student Ombudsman during that financial year. (2) The National Student Ombudsman may, from time to time, give the Minister administering this Act, for presentation to the Parliament, a report: (a) on the operations of the National Student Ombudsman during a part of a year; or (b) in relation to any matter relating to, or arising in connection with, the exercise of the powers, or the performance of the functions, of the National Student Ombudsman. (3) The National Student Ombudsman may also give a copy of a report under subsection (1) or (2) to: (a) the Higher Education Minister; or (b) the Secretary of the Higher Education Department. (4) Subsections (1), (2) and (3) do not affect the powers and duties of the National Student Ombudsman under section 21AV or 21AW. Tabling and inclusion in other reports (5) If the National Student Ombudsman gives a report to the Minister administering this Act under subsection (1) or (2), the Minister must cause the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives the report. (6) A report under this section relating to the operations of the National Student Ombudsman during a period may be included in a report under: (a) section 19; or (b) section 46 of the Public Governance, Performance and Accountability Act 2013; relating to the operations of the Ombudsman during that period. Content of report (7) A report under this section on the operations of the National Student Ombudsman during a period must: (a) set out the number and nature of complaints made to the National Student Ombudsman under this Part during that period; and (b) in relation to each higher education provider for which a complaint was made to the National Student Ombudsman under this Part—set out: (i) the number of complaints made to the National Student Ombudsman during that period; and (ii) the nature of the complaints made to the National Student Ombudsman during that period; and (c) if the National Student Ombudsman has conducted any investigations under paragraph 21AT(1)(a)—set out: (i) the number of such investigations started during that period; and (ii) the number of such investigations completed during that period; and (d) if the National Student Ombudsman has conducted any investigations under paragraph 21AT(1)(b)—set out: (i) the number of such investigations started during that period; and (ii) the number of such investigations completed during that period; and (e) set out details of recommendations made during that period in reports under section 21AV; and (f) if the National Student Ombudsman is aware of any actions taken by higher education providers in response to recommendations made in reports under section 21AV—set out details of such actions taken during that period; and (g) if the National Student Ombudsman has referred any complaints made under this Part to a higher education provider for investigation and report under Subdivision C of Division 3 of this Part—set out: (i) the number of complaints referred under that Subdivision during that period;