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:
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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.
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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.
Section 2 provides an overview of what has and has not changed. In doing so, it also summarises NZQA’s functions and powers.
This Guidance note is 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:
www.legislation.govt.nz/act/public/1989/0080/latest/DLM175959.html
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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.
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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: www.nzqa.govt.nz/about-us/our-role/legislation/nzqarules/
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:
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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 2012 unless replaced earlier.
NZQA will be gradually revising and updating these policies and criteria and rules and procedures into Rules during that time.
These carried-over Rules (or otherwise carried over by the Interpretation Act 1999) are:
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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:
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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 www.nzqa.govt.nz/about-us/our-role/legislation/nzqa-rules/
Do these changes affect existing registrations, accreditations, approvals etc?
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No, but:
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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 issues that 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:
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Your NZQA Sector Relationship Manager
Email info@nzqa.govt.nz
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SECTION 2 – 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
Requirements for
PTEs proposing to
enrol international
students
Registration
requirements,
application process
Section
Summary of effect
reference
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
232CPTE must be registered to provide approved
232D
programmes or training schemes.
Registration applications must:
1. contain certain information set out in 232D
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Changes from previous Part 18
Similar to previous framework.
Change in statutory requirements for what a
registration application must contain.
Particular clarity required about possible
conflicts of interest between governing
NZQA registration
powers
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
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
Registration
conditions
233B
All PTEs must comply with certain conditions.
NZQA can impose conditions on particular PTEs or
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member’s PTE role and interests elsewhere in
education and immigration sectors providing
goods or services to tertiary students.
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.
Essentially the same as under previous s
236AA.
a class of PTEs.
Annual fee
233C
Cancellation and
lapse of registration
233D-234
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.
PTE must pay NZQA annual registration fee set
under Rules.
NZQA may cancel registration for non-compliance
with Act, conditions or other specified matters.
NZQA must follow statutory natural justice process.
No change except now set by Rules
No change in relation to NZQA’s discretion to
cancel registration.
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.
NZQA’s obligation to cancel registration where
criminal wrongdoing is new.
Cancellation means approvals, accreditations and
consents to assess are withdrawn.
No change
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.
New
Registration does not lapse if time extended in
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specific situations.
Domestic students fee
maxima
234A
Information to be
given to prospective
students
234B
Student fee protection
234C235C
Registration also lapses if PTE fails to pay fees
after two reminder notices.
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.
PTEs must give prospective students specific
information including programme/training scheme
costs/fees, materials and withdrawal entitlements,
and governing members’ conflicts of interest
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).
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No change
New but similar in principle to previous Act.
Material conflicts and related education sector
interests new, otherwise largely similar to
previous legislation and student fee protection
policy.
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
Information sharing
with government
agencies
235D
235E-236
Minister may gazette refund parameters for
international students.
Minister may direct PTEs about compulsory student
services fees.
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.
New
No change
No change
No material change
Maintaining student
records
236A
Intentional failure to provide all relevant information
to MSD is a criminal offence.
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.
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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
NZQA functions
New Zealand
Qualifications
Framework
Section
reference
246A
248
Summary of effect
Changes from previous Part 20
NZQA, inter alia:
Largely unchanged from previous section 263
(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
NZQA must list on the NZQF all approved
qualifications.
NZQA can amend or remove a qualification. If
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New
Directory of
Assessment
Standards
Approval of
programmes
qualification removed, approvals and accreditations
lapse.
248A-248B Approve standard-setting bodies.
249-249A
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.
NZQA may grant or refuse approval of programmes,
including subject to conditions.
New
Largely unchanged (previous sections 258 and
258A related to course approvals)
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.
Accreditation to
provide an approved
programme
250-250C
NZQA may withdraw approval. It must follow
statutory natural justice process.
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.
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Largely unchanged from previous sections 259,
259A and 261
Exemptions for gazetted secondary
qualifications and employers providing
workplace training
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:
Approval of training
251-251C
 PTE deregistration
 Programme ceases to be approved
 Qualification discontinued
A training scheme means study or training that leads
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New but based on previous short course
schemes
to an award but does not, of itself, lead to an award of approval framework.
a qualification listed on the Qualifications Framework.
Note that previously approved courses which did
not lead to a qualification convert to approved
training schemes.
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:
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Exemptions for gazetted secondary
qualifications (schools and tertiary) and
employers providing workplace training
(a) approval granted, institution does not provide
all or part of training scheme; or
(b) institution last provided all or part of training
scheme.
Consent to assess
against standards
252-252B
NZQA may extend 1 year period.
NZQA may grant or refuse consent to assess against
listed standards, including subject to conditions.
New
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.
Rules
253
Consent expires in certain situations.
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.
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New, but similar to:
(a) Policies and criteria made under previous
section 253; and
(b) Rules and procedures made under
previous section 265
Rules require Minister’s approval.
New rule-making powers include:
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Granting of consent
for degree and postgraduate awards
Power to obtain
information
Power to enter and
inspect
253B
NZQA may grant or refuse consent to grant award.
254A
NZQA may require Secretary for Education or
institution (polytechnics, wānanga, GTEs, PTEs,
schools, ITOs or other bodies) to provide information
or documents.
255A
NZVCC can exercise this power in relation to
universities.
NZQA may, to establish whether a PTE or PTE agent
is complying with Act, rules etc:
Agents taking student fees
Credits/cross credits/recognition of prior
learning and moderation
 Workplace training
 Enrolment and academic records at PTEs
 Credit reporting
Largely unchanged from previous section 254
No change
New
(a) enter and inspect premises;
(b) require production of or copy documents
(c) require statements
Compliance notices
255
so long as certain safeguards (such as evidence of
authorisation) met.
NZQA may issue compliance notice to institution
requiring it to do, or not to do, certain things by a
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Largely unchanged from previous section 255A
stated date.
Fees charged by
NZQA
254
If institution does not comply, NZQA may take
actions. Some actions automatically have
consequences for other NZQA approvals.
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
This Part relates to offences and both maintains existing offences and adds new ones. Under sections 292-292G, it is an offence
to, for example:
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grant an award without NZQA’s consent
make false representations in relation to approvals and consents
falsely represent that a person is an agent of an institution
fail, without reasonable excuse, to maintain student records
provide or advertise cheating services
as an agent, fail to deposit monies received from a student with either the PTE or an independent trustee as soon as
possible.
Under s 292H, NZQA may apply to the High Court to stop certain offences and other (proposed) actions.
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Transitional Provisions
The Act preserves existing:
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qualifications listed on the New Zealand Qualifications Framework
standards listed on the Directory of Assessment Standards
course approvals (which become either programme approvals or training scheme approvals)
accreditations
consents to assess against standards
consents to grant awards
Note these qualifications to the above:
1. policies and criteria, and rules, made under the Act prior to its amendment continue as deemed Rules until 31 December
2012 unless replaced earlier
2. where an institution providing study or training holds a consent to assess against standards, but not a course approval or
accreditation for study or training in relation to those standards, it must apply for training scheme approval, or programme
approval and accreditation, by 30 August 2012, or else its consent to assess lapses (note that gazetted secondary
qualifications are exempt, as are employers providing workplace training)
3. existing registrations are preserved but PTEs must, to maintain their registrations:
a. by 29 February 2012, provide NZQA with the conflict of interest declarations required under s 232D
b. by 29 February 2012, satisfy NZQA that they comply with s 233 relating to the provision of information to prospective
students
c. provide to NZQA any application or information relating to each governing member being a fit and proper person,
within 6 months of receiving a request from NZQA
d. by 30 August 2014, satisfy NZQA that each governing member is a fit and proper person
4. failure to meet these registration requirements may result in cancellation of the registration
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