Higher Education Policy Institute (HEPI) Good Regulation: Lessons for England from the Australian Experience?

Written by Anthony McClaran, currently the Vice-Chancellor of St Mary's University, Twickenham, chair of GuildHE, and a former Chief Executive of the Quality Assurance Agency and Australia's Tertiary Education Quality and Standards Agency (TEQSA), the paper looks at the evolution of regulation in the Australian system and draws some lessons from this for England. It covers some of the benefits and dangers of statutory regulation and possible directions for the future. Although the paper does not directly address governance issues, its observations and conclusions have implications for this and should therefore be of interest to governors, particularly at a time when regulatory and quality assessment changes are afoot across the UK system.

The full paper can be found here.

At-a-glance:

• England’s HE system has moved over the years from self-regulation to co-regulation to external statutory regulation – an arrangement that more closely reflects the historical and current situation in Australia
• While there has been some opposition to this change, McClaran argues that statutory regulation brings clear benefits, including clarity of structure and intent; provision for possible sanctions in cases of breaches of statutory duties; a clear line of accountability; and protection for the regulated
• It also incorporates a full and rounded view of the public purpose of universities and their duties to stakeholders, particularly students
• However, a review of the Australian system in 2013 and subsequent work by Anthony McClaran as CEO of TEQSA from 2015 exposed some of the inherent dangers as well as the strengths of statutory regulation. The review warned against a “one size fits all” approach and recommended that a complex risk framework be reformed to reduce the burden on providers in a way that could still demonstrate consistent quality
• Since the review, TEQSA expertise has been bolstered by ensuring its commissioners are drawn from experienced HE practitioners. A further check on executive over-reach was put in place by separating the roles of chief commissioner and CEO, so that the regulatory proposals of the executive were first subject to the scrutiny of the Commission. Meanwhile, the role of the Higher Education Standards Panel in providing independent oversight of the Agency’s activities was clarified
• During McClaran’s time as CEO, TEQSA conducted a series of sector-wide “thematic reviews” in areas that have recently been the focus of consultations overseen by the Office for Students, including transparent admissions; sexual assault and harassment; challenges to academic freedom and freedom of speech; contract cheating and breaches of academic integrity. Although a review concluded that TEQSA should not be involved in these, they have remained in place due to pressure from public interest, the media, and politicians
• At a time when regulatory arrangements in England established by the Higher Education and Research Act (2017) are being reviewed, McClaran suggests some lessons from the Australian experience that are worth considering. The first of these is that there is “collective wisdom and value” in structures that the sector itself has created, such as the UK Quality Code and Subject Benchmarks, as well as the “essential contribution” of reviewers from the sector
• Another key lesson is the need to make sure independence is secured by the right checks and balances, with real accountability “because visible independence is essential to trust and therefore to the assurance of students, taxpayers, stakeholders and international audiences who are watching all the time”
• McClaran underlines the importance of ensuring that regulatory judgement goes through rigorous challenge, both inside the regulator’s structures and beyond, adding “this can go hand in hand with an approach which subjects proposed interventions to the tests of risk, proportionality and necessity”
• Finally in a message to the English sector, McClaran calls on it to acknowledge, “as many institutions already do”, the role that the regulator can play in ensuring a sector-wide response to the many thematic challenges it faces

Implications for governance:

The paper from McClaran, comes as major shifts in regulation and quality assessment are taking place in England, Wales and Scotland. The revised regulatory framework overseen by the Office for Students has placed new responsibilities on governing bodies, including quality assurance, access and participation, and protecting academic freedom and freedom of speech. It has also introduced new and revised conditions of registration relating to quality (see Advance HE News Alert). The OfS has taken on the assessment activities previously delivered by the Quality Assurance Agency for Higher Education (QAA) in its role as the designated quality body, following a triennial review on the performance of the QAA and QAA’s own request that the Secretary of State remove its designation. Quality and Standards reviews involving visits to providers, previously conducted by the QAA, are now in the hands of the OfS. Some of the potential issues arising from this will no doubt emerge as the House of Lords Industry and Regulators Committee begins its inquiry into the work of the OfS.

Meanwhile McClaran’s observations on the evolution of regulation in Australia may, as a tertiary system, have even closer parallels to developments in Wales, which last year passed legislation to create a new post-16 education regulator. In May this year, the QAA also launched a consultation on a revised handbook  for Quality Enhancement Review in Wales. The Commission for Tertiary Education and Research in Wales has been touted as a potential model for England. In Scotland, a new enhancement-led external institutional quality review method is currently under development within the context of the Scottish Funding Council’s Review of Coherent Provision and Sustainability and the development of a Tertiary Quality Framework which is proposed for implementation from 2024-25.

While McClaran’s paper speaks largely to regulators and policy-makers, the points it raises at such a time of change will also be of interest to governors whose institutions must adjust to the new environment. In this respect, governors may find the paper’s account of the Australian experience illuminating.

According to McClaran, the lessons from Australia include the importance of a risk-based approach, sensible rather than overblown data requests, and good communication.

Reforms in response to the review of TEQSA included a reduction in the burden on providers that could demonstrate consistent quality and promotion of the concept of ‘trust’ or ‘earned autonomy’. In the wake of the review, TEQSA reduced its risk framework, through which it assesses every provider annually, from 44 indicators to 12 and then to 11 in a more recent consultation with the sector.

There was also recognition of the tensions inherent in the need to have a framework that applied to all but at the same time avoiding a one-size-fits-all straightjacket.

Active cooperation with other regulators to avoid duplication and create a more joined-up approach was recommended in the review. It became increasingly important as the Australian government adopted the view that the higher and vocational education sectors should be viewed and structured as a tertiary sector - an approach that is beginning to be formed in England with the introduction of the lifelong loan guarantee and the emphasis on HE and FE working more closely together.

McClaran links transparent reporting and accountability measures with fostering public trust and confidence. His comment that “students, taxpayers, stakeholders and international audiences are “watching all the time”, is a point that governing boards as well as the regulator, might take on board.

It is also worth remembering, according to McClaran, that regulation can provide a strong emphasis on student protection and safeguards against unscrupulous practices and creates a fairer and more secure environment for learners.

Above all, the paper emphasises the importance of ensuring “good” and effective regulation, involving mutual respect and cooperation between both regulators and institutions. For this to come about, both the right checks and balances and real accountability must be in place. McClaran warns: “Too often, we conduct the discussions about quality as if no-one outside the UK – indeed, outside England – is listening.”