Category:
Policy Contact:
Chief Operations Officer
Background:
In 2017, the Tertiary Education Quality and Standards Agency Act 2011 (the Act) was amended to include a ‘fit and proper person’ requirement at provider registration and renewal of registration, and as an ongoing condition of registration as a higher education provider.
This requirement is located in the following provisions of the TEQSA Act:
- Paragraph 21(1)(b) provides that TEQSA may grant an application for registration if it is satisfied that the applicant, and each person who makes or participates in making decisions that affect the whole, or a substantial part, of the applicant’s affairs, is a fit and proper person.
- Paragraph 36(1)(b) contains an identical provision with respect to renewal of registration.
- Subsection 25A provides that a registered higher education provider, and each person who makes or participates in making decisions that affect the whole, or a substantial part, of the provider’s affairs, must be a fit and proper person. This is a condition of registration.
The objects of the Act include, among other considerations, the protection and enhancement of Australia’s reputation for quality higher education and training services and to protect students undertaking, or proposing to undertake, higher education in Australia by requiring the provision of quality higher education. These considerations underpin TEQSA’s regulatory activities and inform the way in which fitness and propriety is assessed by TEQSA.
Consequently, applications for registration or re-registration as a Higher Education Provider (HEP) with TEQSA, or as a Registered Training Organisation (RTO) with ASQA/VRQA require evidence that appointments to key administrative positions within the College or to the Governing Board are fit and proper persons.
Purpose:
This policy and procedure is required to ensure that personnel recruited to key administrative positions in the College, or to the Governing Board of Eastern College Australia are fit and proper persons to conduct their delegated responsibilities within the College.
The policy and procedure is also required to ensure ongoing compliance with Chapter One, Provider Registration Standards of the Higher Education Standards Framework.
Scope:
This policy and procedures relates to any person who is being considered as an appointment to the Governing Board or its Sub-Committees, or the positions of Executive Principal or Chief Operations Officer or administrative staff members who are delegated responsibilities for decision making which substantially or materially impact the operations or welfare of the College.
Statement:
Fit and Proper Person
‘Fit and proper person’ is not defined for the purposes of the Act. Nonetheless, a person is fit and proper should be determined by reference to the person’s character and ability, as well as the likelihood that the person will comply with (or reasonably assist compliance with) the obligations imposed by the governing legislation.
Whether a body corporate is fit and proper should be determined by reference to the persons through whom the body corporate acts, as well as the body corporate’s own history.
Within the College administration, this policy shall relate specifically to the following Administrative positions:
- the Principal of the College; and
- the Chief Operations Officer.
Within the Governing Board, this policy and procedure shall relate specifically to the following Board/Sub-Committee members:
- The Chairperson of the Governing Board; and
- The Treasurer and/or Chair of the Finance and Audit Sub-Committee.
This policy and procedure shall also apply to any future Governing Board Members or Administrative Staff Members who are delegated responsibilities for decision making which substantially or materially impact the operations or welfare of the College.
Assessment
The evidence that is relevant to whether a person is fit and proper, and the weight that should be afforded to that evidence, will be considered in the circumstances of each case.
A finding by TEQSA that a person is not a fit and proper person is a serious determination. This could result in the applicant being precluded from registration as a higher education provider or the possibility (if registered) of the registration being cancelled.
Accordingly, when determining whether a person is fit and proper it is important that ECA give due regard to relevant considerations including a person’s:
a. compliance with the law and provision of information
b. previous conduct and management history
c. financial record.
The above matters can be considered in respect of the person (if an individual), a corporation and any of its officers (if a provider or prospective provider), including its Board directors, ERxecutive Principal (chief executive) and leaders, or other persons who are involved in making decisions that affect the whole, or a substantial part, of the provider’s affairs.
A. Compliance with the law and provision of information
In determining whether the person is fit and proper, ECA considers, amongst other things, whether the person has been convicted of an offence involving dishonesty, fraud, money laundering, theft or any other crime, and whether the person has been ordered to pay a pecuniary penalty. ECA also considers whether the person is currently involved in proceedings before a court or tribunal.
ECA will take into account whether the individual presents with a record of any:
a. criminal convictions
b. professional denunciations and misconduct
c. the provision of false or misleading information
d. disqualification of registration, licence or accreditation.
Should any of the above be found against the individual being assessed, then the decision maker should take into account additional matters such as:
a. whether the conduct in question was regarded as relevant to exercising duties required for the registration, licence, authorisation, certification (or equivalent) within the Higher Education Sector
b. the seriousness of the matter
c. the length of time that has lapsed since the event occurred
d. any history of past conduct
e. any consequences for the applicant or any other person
f. the implications of the matter—that is, what does it show about the person?
g. the person’s attitude towards the matter—such as whether the person has learnt, changed and improved their behaviour and is unlikely to further offend in the future.
B. Previous conduct and management history
In determining a person’s fitness and propriety, ECA will have regard to a person’s past conduct, previous involvement and management history. This will include but not be limited to:
a. whether the person has previously been found not to be fit and proper in relation to a relevant act,
b. whether the person’s registration to provide higher education courses, accreditation of a course or registration as a Registered Training Organisation (RTO) under the Act or a State or Territory law has been cancelled, revoked, restricted, not renewed or suspended
c. whether the person’s registration under the Education Services for Overseas Students (ESOS) Act has been cancelled, revoked, restricted, not renewed or suspended
d. whether the person has had a condition imposed on a registration, approval or arrangement to provide higher education courses, accreditation of a course or registration as an RTO under the Act, ESOS Act or a State or Territory law
e. whether the person has breached a condition listed at d above
f. whether the person has been disqualified from managing corporations under Part 2D.6 of the Corporations Act 2001
g. whether the person has the skills and experience relevant to govern and manage the affairs of a higher education provider
h. whether the person has the technical knowledge and ability relevant to the specific duties for which they are engaged
i. whether the person has a sound professional reputation (for example, based on the individual’s professional history and the views of others from the relevant field/s)
j. whether the person has the confidence of peers, colleagues, clients, and the public at large to not engage in improper conduct in the discharge of their professional duties. This could involve matters that fall short of convictions but call into question the person’s judgement and integrity, such as whether the person represents as legitimate a qualification issued by an institution that is found to issue illegitimate qualifications (i.e. a degree or diploma).
C. Financial record
A person’s financial record is an important element in determining their fitness and propriety.
When assessing the financial record of the individual, ECA will generally consider matters such as (but not limited to):
a. whether there are any indicators that the individual will not be able to meet debts as they fall due
b. whether relevant solvency requirements are met
c. whether the individual has been subject to any judgment, debt or award that remains outstanding or has not been satisfied within a reasonable period
d. whether the individual has made arrangements with creditors, filed for bankruptcy or been adjudged bankrupt or had assets confiscated
Fit and Proper Person Declaration
In addition to the general recruitment activities conducted by the Governing Board to fill vacant administrative positions, or to attract to the Governing Board or its Sub-Committees members who have demonstrated skill and experience in business, corporate management or education, the Chairperson of the Board shall, prior to an offer of appointment being made, arrange for the candidate to complete a Fit and Proper Persons Declaration.
This declaration shall include the following details:
- The full name of the candidate;
- The position in the Governing Body or the College administration which the candidate will fill;
- A brief statement of the primary responsibilities of the position;
- The address of the candidate;
- Details of any convictions for an offence against a law of the Commonwealth or of a State or Territory;
- Details of any breach of conditions of any previous employment or appointment protocols with respect to previous employment or service as a key personnel member or governing body member;
- Details of any act of professional misconduct;
- Details of any bankruptcy, or application to take the benefit of a law for the benefit of bankrupt or insolvent debtors, compounded with your creditors or assigned your remuneration for the benefit of creditors;
- Details of any disqualification from managing corporations under Part 2D.6 of the Corporations Act 2001;
- Details of any false or misleading information provided to a state or registering body, or any false statement made to such a state or registering body;
- Details of any failure to meet the fit and proper person requirements for the purposes of the National Vocational Education and Training Regulation Act 2011;
- Details of any mater which could lead to a public lack of confidence in your ability, or that of the College, to provide or assess educational qualifications; and
- Details of any experience as a Governing Board Member or Board Sub-Committee Member of an educational institution, or as a key administrative person of an educational institution.
The declaration shall include the words: “The material in this document is true and correct to the best of my knowledge and belief. I understand that giving false or misleading information is a serious offence.”
The Governing Board may, at its discretion, use the following forms to collect the above required information:
- Fit and Proper Person Requirements Declaration, of the Application for Registration or Renewal of a Higher Education Provider (TEQSA); and/or
- Fit and Proper Persons Requirements Declaration, of the Application of the Application for Registration or Renewal of a Registered Training Organisation (ASQA).