Guidance note on Education Amendment Act 2011

For tertiary education organisations, agents and independent trustees

Introduction

The Education Amendment Act 2011 came into force on 30 August 2011.

This means:

  • New Zealand Qualifications Authority (NZQA)
  • Institutions i.e. polytechnics and wānanga, and universities (through the New Zealand Vice Chancellors’Committee)
  • Private training establishments (PTEs)
  • Industry training organisations (ITOs)
  • Independent trustees
  • Agents
  • Schools
  • Government training establishments
  • Other bodies

are now operating under a new legislative framework for quality assurance.

The purpose of this Guidance note is to summarise the key legislative changes for NZQA and its stakeholders. The main impact on NZQA is that this Amendment Act inserted into the main Act (the Education Act 1989) a new Part 18 (relating to private training establishments) and a new Part 20 (NZQA functions and powers). There were also other NZQA-related amendments particularly in relation to new powers and new offences.

Section 1 of this Guidance note provides an overview of the process, new legislative framework and what aspects of that framework are under development.

Section2provides an overview of what has and has not changed. In doing so, it also summarises NZQA’s functions and powers.

This Guidance noteis not, however, a substitute for the legislation or the Rules that have been, or will shortly be, made under it. NZQA encourages you to contact NZQA if you need more specific guidance, or to take your own advice. You are ultimately responsible for meeting obligations you have under the new legislative framework.

You can access the Education Act as amended at:

SECTION 1 – PROCESS AND LEGISLATIVE FRAMEWORK OVERVIEW

What legislation has changed?

The main impact on NZQA is that this Amendment Act inserted into the main Act (the Education Act 1989) a new Part 18 (relating to private training establishments) and a new Part 20 (NZQA functions and powers). There were also other NZQA amendments particularly in relation to new powers and new offences.

This Guidance note sets out below in detail what has and has not changed for NZQA and its stakeholders under the amended Act.

Why did the Government amend the Education Act?

In terms of NZQA’s role, the Act strengthens the regulation of the tertiary education system by improving and modernising NZQA’s legal arrangements. Parts 18 and 20 of the Education Act 1989 had not been significantly amended since 1990.

The Act revises NZQA’s existing functions and powers. That includes creating a Rules framework to replace NZQA’s current powers to establish policies and criteria, and removing NZQA’s power to delegate its quality assurance functions. The Act also establishes in law the New Zealand Qualifications Framework and the Directory of Assessment Standards, and introduces into legislation the concepts of training schemes, programmes and consents to assess against standards.

Finally, the Act creates a stronger regulatory and enforcement framework– in particular, in relation to managing private training establishments, which have some new obligations. This includes raising the threshold for private training establishment registration, giving NZQA powers of entry to premises in cases of non-compliance, and introducing new targeted offences. Good providers will benefit from the raising of overall standards in the private training establishment sector.

Will there be other changes to our obligations?

Yes.

NZQA may make Rules under section 253 for essentially all matters within its functions, duties and powers.

Rules provide the detail of stakeholders’ obligations (particularly providers’ obligations) under the Act.

NZQA must consult with stakeholders regarding some types of Rules.

Almost all Rules require the approval of the Minister for Tertiary Education.

Once Rules have been approved, NZQA will publish them on its website:

Have any Rules been made?

Yes.

NZQA is loading new Rules on its website as they are made. Three sets of Rules have been made to date:

  • Directory of Assessment Standards (DAS) listing and operational Rules 2011
  • Private training establishment (PTE) annual registration fee Rules 2011
  • Consent to assess against standards on the DAS Rules 2011

Are NZQA’s existing Rules still in force?

Yes, except where Rules under the amended Act have been made.

NZQA’s policies and criteria established under the old section 253, and rules and procedures made under the old section 265, are deemed to be Rules and continue until the end of 2012unless replaced earlier.

NZQA will be gradually revising and updating thesepolicies and criteriaand rules and procedures into Rules during that time. These carried-over Rules(or otherwise carried over by the Interpretation Act 1999) are:

  • Policies and Criteria for the Ongoing Registration of Private Training Establishments (Gazetted)
  • Policies and Guidelines for the Conduct of External Evaluation and Review
  • NZQA statutory policies supporting confidence statements from External Evaluation and Review
  • Criteria for Approval and Accreditation of Courses (Gazetted)
  • Student Fee Protection Policy
  • Education (Foreign Students – Refund Requirements) Notice 2011 (Gazetted)
  • Criteria for Exemption of Courses Less Than Three Months Delivered to Foreign Students and Associated Withdrawal and Refund Criteria (Gazetted)
  • Assessment and Examination Rules and Procedures for Secondary Schools 2011

Assessment and Examination Rules and Procedures for Home Schools 2011

  • Assessment Rules and Procedures for Tertiary Education Organisations in relation to assessing against externally assessed achievement standards
  • Assessment Rules and Procedures for Granting of The New Zealand Diploma in Business 2009

Short-term Rules work programme

NZQA anticipates new Rules will be in place before the end of 2011 in these areas:

  • Applications to list qualifications on the New Zealand Qualifications Framework
  • Applications for training scheme approval to regulate “short courses/awards”
  • Rules for PTE enrolment and academic records

Rules updates

For updates on the status of Rules, please see

Do these changes affect existing registrations, accreditations, approvals etc?

No, but:

  • NZQA now has some additional powers to take steps in relation to registration and other quality assurance matters
  • Section 2 below highlights the key transitional issuesthat require PTEs to take certain steps to maintain registration by 29 February 2012 and certain consents to assess against standards by 30 August 2012

Who do I contact if I have questions?

NZQA or your peak body.

NZQA contacts:

  • Your NZQA Sector Relationship Manager
  • Email

SECTION2–SECTOR IMPACT OVERVIEW

Section 2 focusses on PTEs as the group of entities that are most regulated under Parts 18, 18A and 20 of the Education Act 1989.

Where these Parts concern other types of entities (such as agents, ITOs, institutions, government training establishments, other bodies and schools), that is specifically stated.

Part 18

Part 18 almost entirely relates to PTEs. It creates obligations for PTEs in these key areas (and agents, independent trustees and student fee protection suppliers for student fee protection):

Area / Section reference / Summary of effect / Changes from previous Part 18
Requirements for PTEs proposing to enrol international students / 232A-232B / PTEs cannot enrol international students for programmes or training schemes unless:
  1. registered and Code signatory; and
  2. accredited to provide programme; and
  3. programme/training scheme approved or is less than 3 months and is exempted; and
  4. it has relevant consent to assess against standards
/ Similar to previous framework.
Registration requirements, application process / 232C-232D / PTE must be registered to provide approved programmes or training schemes.
Registration applications must:
  1. contain certain information set out in 232D
  2. demonstrate how the PTE will meet the governing member and other criteria for registration in ss 233(1), 233A(1) and 233B(1) and (2)
  3. contain statutory declarations from each PTE’s governing member about conflicts of interest and other matters
  4. attach fee
/ Change in statutory requirements for what a registration application must contain.
Particular clarity required about possible conflicts of interest between governing member’s PTE role and interests elsewhere in education and immigration sectors providing goods or services to tertiary students.
NZQA registration powers / 232E-233A / NZQA may verify identity of governing members when considering registration application or at any time when membership of governing members changes.
NZQA can only register a PTE if satisfied of certain matters, including whether (all criteria):
  1. each governing member is a fit and proper person
  2. any conflicts of interest are effectively managed
  3. the PTE has adequate staff, equipment and premises
  4. the PTE has, or is likely to have, acceptable financial management practices and performance
/ Identity verification powers are new.
Power to register not new, but many of the statutory criteria are newly incorporated in the legislation, including concerning conflicts of interest and criteria for determining whether a governing member is a fit and proper person. However, most of these criteria were previously in NZQA’s registration policies and criteria, so do not represent a fundamental change in the rules framework.
Governing members means directors (formal or de facto), trustees, partners, senior managers and controlling shareholders.
Registration conditions / 233B / All PTEs must comply with certain conditions.
NZQA can impose conditions on particular PTEs or a class of PTEs.
NZQA can impose new conditions, or amend or revoke conditions, both with and without the PTE’s agreement. If without, NZQA must follow statutory natural justice process. / Essentially the same as under previous s 236AA.
Annual fee / 233C / PTE must pay NZQA annual registration fee set under Rules. / No change except now set by Rules
Cancellation and lapse of registration / 233D-234 / NZQA may cancel registration for non-compliance with Act, conditions or other specified matters. NZQA must follow statutory natural justice process.
NZQA must cancel registration if:
(a) PTE commits certain specified offences;or
(b) a governing member commits certain specified offences or any serious criminal activity, and PTE fails to remove person after notice from NZQA.
Cancellation means approvals, accreditations and consents to assess are withdrawn.
Registration lapses if within 1 year after:
(a)registration granted, PTE does not provide approved programme/training scheme; or
(b)PTE ceases to provide to enrolled students any approved programme/training scheme.
Registration does not lapse if time extended in specific situations.
Registration also lapses if PTE fails to pay fees after two reminder notices. / No change in relation to NZQA’s discretion to cancel registration.
NZQA’s obligation to cancel registration where criminal wrongdoing is new.
No change
New
Domestic students fee maxima / 234A / TEC funded PTEs must not fix domestic students’ fees higher than maximum amount.
PTEs must not fix domestic students’ fees higher than maximum amount specified in Ministerial direction or determination. / No change
New but similar in principle to previous Act.
Information to be given to prospective students / 234B / PTEs must give prospective students specific information including programme/training scheme costs/fees, materials and withdrawal entitlements, and governing members’ conflicts of interest / Material conflicts and related education sector interests new, otherwise largely similar to previous legislation and student fee protection policy.
Student fee protection / 234C-235C / PTEs and agents which receive money or fees from a student must deposit money/fees with an independent trustee as soon as practicable. Money/fees held on trust until deposited.
Money/fees must be held by independent trustee for the refund period and with an approved student fee protection supplier after that time (including an independent trustee). The amount of student fee refunds and the fee refund periods will not change.
PTEs, agents and independent trustees must comply with any relevant rules (refer to existing Student Fee Protection Policy and impending Student Fee Protection Rules 2011).
Minister may gazette refund parameters for international students. / Only new for agents, but agents’ basic obligation was contained in the Student Fee Protection Policy, so does not represent a fundamental change in the rules framework.
Compulsory student services fees / 235D / Minister may direct PTEs about compulsory student services fees. / New
Information sharing with government agencies / 235E-236 / PTEs must notify immigration officer of withdrawal of international student from programme/scheme within 7 days.
Ministry of Social Development may require PTEs to provide information about students for the purpose of checking student loan or allowance eligibility.
Intentional failure to provide all relevant information to MSD is a criminal offence. / No change
No change
No material change
Maintaining student records / 236A / PTEs must keep accurate and current student records, comply with Rules relating to records, and provide them to NZQA and other agencies on request. / New, but the basic obligation was contained in the Student Fee Protection Policy, so does not represent a fundamental change in the rules framework.

Please note that some of the statutory obligations are further developed or ‘operationalised’ through existing NZQA gazetted policies and criteria or Rules approved by the Minister.

Part 18A

Under new section 238EA, providers (including PTEs) must enrol a person as an international student if the person is not a domestic student and the provider either teaches that student for more than 2 weeks or accepts tuition fees from him/her.

Part 20

This Part covers NZQA’s functions and powers.

Part 20 is where NZQA’s powers regarding such matters as accreditation, approvals and compliance orders are found. They relate to institutions (note that NZVCC has powers in relation to universities), schools, government training establishments, ITOs, PTEs and other bodies.

Entry powers only apply to PTEs and their agents.

Area / Section reference / Summary of effect / Changes from previous Part 20
NZQA functions / 246A / NZQA, inter alia:
(a)Has quality assurance functions across education sector
(b)Oversees standards setting
(c)Maintains the Qualifications Framework and Directory of Assessment Standards
(d)Assists and liaises with overseas governments
(e)Liaises internationally for recognition of international qualifications in New Zealand and for New Zealand qualifications overseas / Largely unchanged from previous section 263
New Zealand Qualifications Framework / 248 / NZQA must list on the NZQF all approved qualifications.
NZQA can amend or remove a qualification. If qualification removed, approvals and accreditations lapse. / New
Directory of Assessment Standards / 248A-248B / Approve standard-setting bodies.
Approved standard-setting bodies (such as ITOs and NZQA) may apply to have standards listed on Directory for use by institutions as standards for student assessment. / New
Approval of programmes / 249-249A / NZQA may grant or refuse approval of programmes, including subject to conditions.
All institutions must comply with certain conditions.
NZQA can impose conditions on particular programmes or classes of programmes.
NZQA can impose new conditions, or amend or revoke conditions, both with and without the institution’s agreement. If without, NZQA must follow statutory natural justice process.
NZQA may withdraw approval. It must follow statutory natural justice process. / Largely unchanged (previous sections 258 and 258Arelated to course approvals)
Accreditation to provide an approved programme / 250-250C / NZQA may grant or refuse approval of accreditation to provide programme, including subject to conditions.
If programme incorporates listed assessment standards, institution must have consent to assess.
All institutions must comply with certain conditions.
NZQA can impose conditions on particular institutions or programmes, or classes of programmes or institutions.
NZQA can impose new conditions, or amend or revoke conditions, both with and without the institution’s agreement. If without, NZQA must follow statutory natural justice process.
NZQA may withdraw accreditation. It must follow statutory natural justice process.
Accreditation lapses if within 1 year after:
(a) accreditation granted, institution does not provide all or part of programme; or
(b)institution last provided all or part of programme.
NZQA may extend 1 year period.
Accreditation also lapses in other situations:
  • PTE deregistration
  • Programme ceases to be approved
  • Qualification discontinued
/ Largely unchanged from previous sections 259, 259A and 261
Exemptions for gazetted secondary qualifications and employers providing workplace training
Approval of training schemes / 251-251C / A training scheme means study or training that leads to an award but does not, of itself, lead to an award of a qualification listed on the Qualifications Framework.
NZQA may grant or refuse approval of training schemes, including subject to conditions. ITO may make joint application with institution if institution will provide scheme on ITO’s behalf.
If training scheme incorporates listed assessment standards, institution must have consent to assess.
All institutions must comply with certain conditions.
NZQA can impose conditions on particular institutions or training schemes, or classes of training schemes or institutions.
NZQA can impose new conditions, or amend or revoke conditions, both with and without the institution’s agreement. If without, NZQA must follow statutory natural justice process.
NZQA may withdraw approval. It must follow statutory natural justice process.
Approval lapses if within 1 year after:
(a)approval granted, institution does not provide all or part of training scheme; or
(b)institution last provided all or part of training scheme.
NZQA may extend 1 year period. / New but based on previous short course approval framework.
Note that previously approved courses which did not lead to a qualification convert to approved training schemes.
Exemptions for gazetted secondary qualifications (schools and tertiary) and employers providing workplace training
Consent to assess against standards / 252-252B / NZQA may grant or refuse consent to assess against listed standards, including subject to conditions.
All institutions must comply with certain conditions.
NZQA can impose conditions on particular institutions or consents, or classes of consents or institutions.
NZQA can impose new conditions, or amend or revoke conditions, both with and without the institution’s agreement. If without, NZQA must follow statutory natural justice process.
NZQA may withdraw consent. It must follow statutory natural justice process.
Consent expires in certain situations. / New
Rules / 253 / NZQA may make rules for a wide variety of matters.
If NZQA wishes to make rules relating to a class of institutions, it must consult specified or relevant peak bodies.
Rules require Minister’s approval. / New, but similar to:
(a)Policies and criteria made under previous section 253; and
(b)Rules and procedures made under previous section 265
New rule-making powers include:
  • Agents taking student fees
  • Credits/cross credits/recognition of prior learning and moderation
  • Workplace training
  • Enrolment and academic records at PTEs
  • Credit reporting

Granting of consent for degree and post-graduate awards / 253B / NZQA may grant or refuse consent to grant award. / Largely unchanged from previous section 254
Power to obtain information / 254A / NZQA may require Secretary for Education or institution (polytechnics, wānanga, GTEs, PTEs, schools, ITOs or other bodies) to provide information or documents.
NZVCC can exercise this power in relation to universities. / No change
Power to enter and inspect / 255A / NZQA may, to establish whether a PTE or PTE agent is complying with Act, rules etc:
(a)enter and inspect premises;
(b)require production of or copy documents
(c)require statements
so long as certain safeguards (such as evidence of authorisation) met. / New
Compliance notices / 255 / NZQA may issue compliance notice to institution requiring it to do, or not to do, certain things by a stated date.
If institution does not comply, NZQA may take actions. Some actions automatically have consequences for other NZQA approvals. / Largely unchanged from previous section 255A
Fees charged by NZQA / 254 / NZQA may charge fees for most quality assurance activities, including registration, accreditation and approvals. / Largely unchanged from previous section 266 but more specific.
Requires publication on NZQA website

Part 24