The COVID-19 pandemic has had severe impacts on all education providers due to the necessary closure of campuses intended to ensure the wellbeing of students and staff. The move to large scale on-line delivery, with students and staff working and studying from home has brought unprecedented challenges, increasing risks that cut across all domains of the Threshold Standards for higher education providers and the National Code of Practice for Overseas Students.

Technological considerations alone have brought increasing pressures to people and organisations, changing the risk profile of institutions and requiring institutions to be agile and resilient in the face of day to day uncertainties. Homes have become school and office spaces all at once! Isolation, closed-in and limited physical and social spaces together with the increased rate of interaction in virtual spaces have extended the risks of cyber-security breaches, privacy considerations as well as throwing-up new dilemmas involving bullying and harassment and emerging social and mental health issues.

What pressures does this place on providers in relation to risk management and critical incident reporting requirements?

Here, we present indicative answers to some of the frequently observed questions coming from providers about their regulatory obligations under these extraordinary circumstances. What are their obligations to manage risk, to manage critical incidents, and to support student wellbeing at a time when a US Centre for Disease Control survey (August 14,2020 weekly report) found 40 per cent of all respondents reporting at least one mental health condition.

Providers’ obligations for overall risk management in this time

It would be interesting to know how many risk management registers in 2019 included the risk of a pandemic occurring, predicting major loss of revenue and posing potentially unusual risks to the health of staff and students.  In this “new normal” context, obligations to staff and students are an important, if not more urgent, consideration in circumstances defined by uncertainty, increased workloads, limited resources and forced adjustments to new learning and working environments encroaching on previously sacrosanct home and living spaces.

We recommend all providers review their risk management framework in the light of the pandemic to put in place responsive measures and interventions to address the likelihood of inherent and emergent risks, including future pandemics.

Pandemic-specific regulatory obligations specific to the pandemic

The most relevant section of the Higher Education Standards Framework (Threshold Standards) 2015 (HESF) is the section on wellbeing and safety. While this section obviously does not make specific references to a pandemic, it does indicate that providers need to “promote and foster” a safe environment.

In terms of the National Code of Practice for Overseas Students, providers should note the circumstances of students who are “trapped” on-shore or “off-shore” and consider how information for students is managed to provide accurate and timely advice on marketing information, fee structures, refunds and cancellation policies, procedures for suspension and deferrals, changes to visa requirements, avenues for complaints and appeals and up-to-date information and available learning and support services to students.  Providers should also use a variety of means to track and monitor the impact of changing pressures on the financial, social and environmental factors on international students.  Of particular importance, is the need for providers to track and monitor the safety and performance of any under-18 students in welfare arrangements.

Providers would manage pandemic-specific risks to wellbeing and safety generally by:

* acting: publicising and acting on a commitment to remove known and present hazards (and avert future hazards that are foreseeable and preventable) and creating as safe an environment as possible

* educating: educating staff and students to adopt safe practices that will reduce the danger of critical incidents (for example sound occupational health and safety precautions)

* mitigating: monitor the occurrence of hazards and learn the lessons from each incident about what could be done to reduce the risk of them recurring.

In terms of support services students might need, which they would have resort to after an outbreak providers should wherever possible collaborate to develop and share resources, research to identify and provide a broad scope of information to both domestic and international students, pointing forward to available government and sector resources to help students come to terms with the ‘new normal’.

This must include access to psychological support in view of the high levels of psychological stress being reported in the general population. International students will have additional stressors if they cannot return home and are unable to support themselves through the casual employment options previously available to them. Staff should be on watch for any warning signs of psychological distress in their interactions with students.

To promote and foster a safe environment, specifically in the context of the pandemic, providers should follow the advice given by the national and local health authorities for maintaining a “COVID-safe” working environment, especially the advice from Safe Work Australia. The drop-down menus include advice for specific sectors including tertiary education, for example on cleaning.

Should providers anticipate an increase in critical incidents due to the pandemic?

We do not regard a single COVID-19 infection as a critical incident in itself, but the death of a student or staff member would constitute a critical incident, as would the potential risk of further infection, particularly in the context of multiple infections.

A whole range of secondary issues directly or indirectly related to COVID-19 can potentially trigger a range of critical incidents.  While there is largely general agreement that critical incidents would increase as a result of the pandemic, there is not yet any research we have identified to prove this.  What we do know is that students are faced with the onset of new pressures. The questions they now face are unfamiliar and potentially provocative. What we can surmise is that unfamiliar environments increase anxiety levels which in turn could potentially increase the rate of critical incidents.  Whether critical incidents emerge as a result of direct or indirect causes, it remains cautionary for providers to anticipate and prepare for a rise in critical incidents.

General requirements for managing a critical incident

Providers should have a critical incident policy together with accessible procedures to guide the immediate response to an incident and follow-up. The policy and procedures would guide staff in managing the incident and its consequences in order to mitigate any harm caused, but would not normally deal with prevention.

Most important, the critical incident policy and procedures would detail who would be in charge in the event of any critical incident, overall and campus by campus. There should be a committee of senior managers overseeing, as well as a particular incident controller directing staff and students on the ground. The policy should provide clear direction on protocols relevant to core elements such as:

(i) planning and preparing – developing, documenting, training and testing arrangements

(ii) detecting and mitigating – identifying, assessing, controlling, treating and monitoring risks

(iii) responding – making people safe, minimising damage to assets, and managing strategic issues and consequences

(iv) recovering – implementing business continuity arrangements and repairing negative impacts

v learning and adapting – reviewing and improving arrangements.

Responding to a COVID-19 incident or possible incident

If, despite following all the good practices, even one student or member of staff becomes infected, this would constitute a risk of passing the infection on to others, although it would arguably not constitute a critical incident in itself.

SafeWork Australia has a useful Infographic about what to do even if you are just concerned that someone has become infected, or an infected person might have visited a campus:

Reporting obligations to TEQSA in the event of a COVID-19 incident

In answering this question we first have to consider the requirements for reporting any material change. The legislative requirement in s29 of the TEQSA Act is a little ambiguous. Providers have to notify TEQSA of any event that will “significantly affect the provider’s ability to meet the Threshold Standards”.

What does this mean? On plain reading, it would seem to apply to events that impair a provider’s ability to meet a standard. But most of the standards are couched as general principles, so that particular incidents in themselves do not always constitute a breach of a standard, or cause a risk of not meeting a standard.

A provider’s ability to meet the Standards would come into question if:

* an effective framework to mitigate risks and manage incidents was not in place and being actively implemented

* access to support services, or information about how to access them, was not available.

And remember too, there is a specific obligation for all providers to have a business continuity plan in place and ready to go at a moment’s notice, to address any threat to business continuity such as closure of a campus.

TEQSA has temporarily replaced its Material Change Notification Policy with a stripped down requirement to only report where a provider has:

  • ceased or suspended the delivery of a course (or courses) of study
  • closed one or more campuses
  • changed to an on-line mode of delivery for one or more courses of study
  • incurred material risks to ongoing financial viability including: a Liquidity Ratio below 1.0; and/or an operating cash flow ratio below 0.5
  • experienced a change in ownership or control
  • temporarily stood down, or permanently retrenched, staff as a direct response to the COVID-19 pandemic
  • been unable to meet practical placement requirements of a course which impacts timely completion
  • lost accreditation by a professional accrediting body for one or more of its courses due to a change (or changes) to course design or delivery, including mode of delivery.

Providers benefit from reporting critical incidents

We all benefit by reporting critical incidents because TEQSA understands the big picture of the pandemic and provider responses as they unfold help provide critical information to plan and mitigate risks on a broader level for the whole sector. More specifically, if a risk to compliance does develop down the track, you will be in a better position if there are no surprises, i.e. if it is evident to TEQSA that you are taking all necessary steps to comply, and you develop a relationship of trust with the regulator.

What TEQSA will do

If there is no evident risk to compliance, the case manager will file the information for future reference. It an incident has been major, it is likely it will be included in the next available report on material events for information to TEQSA’s commissioners.

If compliance is not evident, the case manager may make further inquiries, which may lead to a requirement to take remedial action.


Dr Michael Tomlinson is a higher education consultant, specialising in independent review of governance and quality assurance. Until January 2020 he was Director of the Assurance Group at TEQSA.

Professor Jane Fernandez is the founder and convenor of HEPP-QN, the Higher Education Provider Quality Network, and Head of Compliance at Study Group Australia. She is also an Adjunct Professor at Avondale University College, where until April 2020 she was Vice-President (Quality & Strategy).


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