Kate Ellis (Adelaide, Australian Labor Party, Shadow Minister for Education) Share this | Hansard source

by leave—I move opposition amendments (1) and (2) together:

(1) Clause 6, page 4 (after line 2), insert:

alternative dispute resolution processes means procedures and services for the resolution of disputes, and includes:

(a) conferencing; and

(b) mediation; and

(c) neutral evaluation; and

(d) case appraisal; and

(e) conciliation; and

(f) procedures or services specified in the regulations;

but does not include:

(g) arbitration; or

(h) court procedures or services.

Paragraphs (b) to (f) of this definition do not limit paragraph (a) of this definition.

(2) Page 71 (after line 13), after Part 9, insert:

Part 9A—VET Student Loans Ombudsman

Division 1—Establishment and functions and powers of the VET Student Loans Ombudsman

101A Establishment

There is to be an VET Student Loans Ombudsman.

101B Functions of the Ombudsman

(1) The functions of the Ombudsman are:

(a) to conduct alternative dispute resolution processes in relation to disputes:

(i) between students and course providers, and

(ii) between students and the Commonwealth, to the extent that the disputes relate to the application of this Act; and

(b) to represent students in any proceedings in a court or tribunal in relation to disputes:

(i) between students and course providers; and

(ii) between students and the Commonwealth, to the extent that the disputes relate to the application of this Act; and

(c) to inquire into, and investigate, any act or practice by a course provider, or by the Commonwealth in relation to the application of this Act, that may be detrimental to students; and

(d) to refer matters to relevant authorities; and

(e) to publish reports in accordance with this Act; and

(f) to perform any other function conferred on the Ombudsman by any Act or legislative instrument.

(2) The Minister may, by legislative instrument, confer additional functions on the Ombudsman.

101C Flexibility and range of working methods in performance of the Ombudsman ' s functions

(1) The Ombudsman is not required to act in a formal manner in the performance of the Ombudsman's functions, unless otherwise required to do so under this Act, or any other Act or legislative instrument.

(2) In the performance of the Ombudsman's functions, the Ombudsman may:

(a) inform himself or herself on any matter in any way the Ombudsman thinks fit; and

(b) consult with anyone the Ombudsman thinks fit; and

(c) receive written or oral information or submissions.

101D Ombudsman ' s powers

The Ombudsman has power to do all things necessary or convenient to be done for or in connection with the performance of the Ombudsman's functions.

Note: The Secretary may enter into contracts and other arrangements on behalf of the Commonwealth to assist the Ombudsman in performing the Ombudsman's functions. See section 23 of the Public Governance, Performance and Accountability Act 2013.

101E Delegation by the Ombudsman

(1) The Ombudsman may, by written instrument, delegate the functions and powers of the Ombudsman to:

(a) an SES employee, or acting SES employee; or

(b) an APS employee who holds or performs the duties of an Executive Level 1 or 2 position, or an equivalent position;

made available by the Secretary of the Department to assist the Ombudsman.

(2) In exercising powers or performing functions under a delegation, the delegate must comply with any written directions by the Ombudsman.

101F Directions from the Minister

(1) The Minister may, by legislative instrument, give written directions to the Ombudsman about the performance of the Ombudsman's functions.

Note: Section 42 (disallowance) and Part 6 (sunsetting) of the Legislative Instruments Act 2003 do not apply to the direction (see sections 44 and 54 of that Act).

(2) The direction must be of a general nature only.

(3) The Ombudsman must comply with the direction.

101G Ombudsman is an official for the purposes of the finance law

The Ombudsman is an official of the Department for the purposes of the finance law (as defined for the purposes of the Public Governance, Performance and Accountability Act 2013).

Note: The Ombudsman's responsibilities as an official under the Public Governance, Performance and Accountability Act 2013 include duties in relation to exercising due care and diligence, acting in good faith and for a proper purpose, not improperly using information or position and disclosing material interests (see Division 3 of Part 2-2 of that Act).

101H Reporting

The Ombudsman must publish the following information within 14 days after the end of the period of 6 months beginning on 1 January and 1 July in each year (the reporting period):

(a) the number of complaints received by the Ombudsman during the reporting period;

(b) whether there are any patterns of conduct apparent from the complaints received by the Ombudsman, and inquiries and investigations carried out by the Ombudsman, during the reporting period that may be detrimental to students;

(c) if there are any such patterns of conduct, the details of those patterns.

Division 2—Appointment and terms and conditions of the VET Student Loans Ombudsman

101I Appointment

(1) The VET Student Loans Ombudsman is to be appointed by the Governor-General by written instrument.

(2) Before the Governor-General appoints a person as the VET Student Loans Ombudsman, the Minister must be satisfied that the person:

(a) has suitable qualifications or experience; and

(b) is of good character.

(3) The Ombudsman holds office on a full-time basis.

(4) The Ombudsman holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.

Note: The Ombudsman may be reappointed: see section 33AA of the Acts Interpretation Act 1901.

101J Remuneration

(1) The Ombudsman is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the Ombudsman is to be paid the remuneration that is prescribed under subsection (4).

(2) The Ombudsman is to be paid the allowances that are prescribed under subsection (4).

(3) This section has effect subject to the Remuneration Tribunal Act 1973.

(4) The Minister may, by legislative instrument, prescribe:

(a) remuneration for the purposes of subsection (1); and

(b) allowances for the purposes of subsection (2).

101K Leave of absence

(1) The Ombudsman has the recreation leave entitlements that are determined by the Remuneration Tribunal.

(2) The Minister may grant to the Ombudsman leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.

101L Outside work

The Ombudsman must not engage in any paid work outside the duties of the Ombudsman's office without the Minister's approval.

101M Resignation

(1) The Ombudsman may resign his or her appointment by giving the Minister a written resignation.

(2) The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.

101N Disclosure of interests

Disclosure before appointment

(1) Before starting to hold office, the Ombudsman must give to the Minister a written statement of any material personal interest that the Ombudsman has that relates to the functions of the Ombudsman.

Note: The Ombudsman, once appointed, must also disclose interests under section 29 of the Public Governance, Performance and Accountability Act 2013.

Disclosure after appointment

(2) A disclosure by the Ombudsman under section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) must be made to the Minister.

(3) Subsection (2) applies in addition to any rules made for the purposes of that section.

(4) For the purposes of this Act and the Public Governance, Performance and Accountability Act 2013, the Ombudsman is taken not to have complied with section 29 of that Act if the Ombudsman does not comply with subsection (2) of this section.

101O Termination of appointment

(1) The Minister may terminate the appointment of the Ombudsman:

(a) for misbehaviour; or

(b) if the Ombudsman is unable to perform the duties of his or her office because of physical or mental incapacity.

(2) The Minister may terminate the appointment of the Ombudsman if:

(a) the Ombudsman:

(i) becomes bankrupt; or

(ii) takes steps to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

(iii) compounds with one or more of his or her creditors; or

(iv) makes an assignment of his or her remuneration for the benefit of one or more of his or her creditors; or

(b) the Ombudsman is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or

(c) the Ombudsman engages, except with the Minister's approval, in paid work outside the duties of his or her office (see section 27); or

(d) the Ombudsman fails, without reasonable excuse, to comply with section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section.

101P Other terms and conditions

The Ombudsman holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.

101Q Acting appointments

The Minister may, by written instrument, appoint a person to act as the VET Student Loans Ombudsman:

(a) during a vacancy in the office (whether or not an appointment has previously been made to the office); or

(b) during any period, or during all periods, when the Ombudsman:

(i) is absent from duty or from Australia; or

(ii) is, for any reason, unable to perform the duties of the office.

Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.

Division 3—Persons assisting the VET Student Loans Ombudsman

101R Staff

The staff necessary to assist the Ombudsman are to be persons engaged under the Public Service Act 1999 and made available for the purpose by the Secretary of the Department.

101S Consultants

The Secretary may, on behalf of the Commonwealth, engage consultants to assist in the performance of the Ombudsman's functions.

Division 4—Responding to requests for assistance

101T Requests for assistance

(1) Any student may request assistance from the Ombudsman in relation to a dispute:

(a) between the student and a course provider; and

(b) between the student and the Commonwealth, in relation to the application of this Act.

(2) The request may be made to the Ombudsman orally or in writing.

(3) If the request is made orally to the Ombudsman, the Ombudsman may:

(a) reduce the request to writing; or

(b) at any time require the person who made the request to reduce the request to writing.

(4) If the Ombudsman requires a student to reduce a request for assistance to writing, the Ombudsman may decline to deal with the request, or to deal with the request further, until the student reduces the request to writing.

(5) A request for assistance by a student in relation to a dispute:

(a) between the student and a course provider; and

(b) between the student and the Commonwealth, in relation to the application of this Act;

made to the Ombudsman in writing, or reduced to writing, is a formal request.

101U Circumstances in which Ombudsman authorised to deal with a request for assistance

(1) The Ombudsman is authorised to deal with a request for assistance by a student in relation to a dispute:

(a) between the student and a course provider; and

(b) between the student and the Commonwealth, in relation to the application of this Act.

(2) If a formal request for assistance is made and the Ombudsman decides not to give assistance, or further assistance, because the Ombudsman is not authorised to deal with the request for assistance, the Ombudsman must give the person who requested assistance notice in writing setting out:

(a) the Ombudsman's decision; and

(b) the reasons for the Ombudsman's decision.

101V Circumstances in which Ombudsman may decide not to provide assistance

(1) The Ombudsman may decide not to give assistance in response to a request, or decide not to give further assistance in response to a request, if the Ombudsman reasonably believes that:

(a) the request is frivolous or vexatious; or

(b) the request was not made in good faith.

(2) If a formal request for assistance is made and the Ombudsman decides not to give assistance, or further assistance, under this section, the Ombudsman must give the person who requested assistance notice in writing setting out:

(a) the Ombudsman's decision; and

(b) the reasons for the Ombudsman's decision.

Division 5—Gathering information about requests for assistance

101W Inquiries in relation to a request for assistance

The Ombudsman may make inquiries for one or more of the following purposes:

(a) deciding whether a request for assistance is one which the Ombudsman is authorised to deal with;

(b) deciding whether to refuse a request for assistance;

(c) conducting an alternative dispute resolution process, or alternative dispute resolution processes, to assist in a dispute:

(i) between a student and a course provider; or

(ii) between a student and the Commonwealth, in relation to the application of this Act;

(d) obtaining details of the parties to a dispute:

(i) between a student and a course provider; or

(ii) between a student and the Commonwealth, in relation to the application of this Act;

for the purposes of performing functions or duties, or exercising powers, under this Act in relation to the dispute;

(e) inquiring into, or investigating, any act or practice by a course provider, or by the Commonwealth in relation to the application of this Act, that may be detrimental to students;

(f) deciding what other action the Ombudsman will take in giving assistance in response to a request.

101X Notice to person to provide information and documents

(1) If the Ombudsman reasonably believes that a person has, or could take reasonable steps to obtain, information or documents relevant to an inquiry under this Division, the Ombudsman may, by notice, require the person to send to the Ombudsman:

(a) a statement setting out the specified information; and

(b) specified documents.

(2) The notice must:

(a) be in writing; and

(b) specify the period within which the statement and documents referred to in subsection (1) must be sent to the Ombudsman; and

(c) be served on the person.

(3) The period specified in the notice must be a period of at least 10 business days commencing on the day the notice is served.

(4) A person who is served a notice under this section must comply with the notice.

Penalty: 30 penalty units.

(5) A person is not subject to a requirement under subsection (4) if:

(a) the person does not have the information or document required; and

(b) the person has taken all reasonable steps available to the person to obtain the information or document required and has been unable to obtain it.

101Y Documents produced in relation to inquiry

If documents are produced or given to the Ombudsman under this Division, the Ombudsman:

(a) may take possession of, and make copies of, or take extracts from, the documents; and

(b) may keep possession of the documents for so long as is necessary for the purposes of the inquiry to which they relate; and

(c) while the Ombudsman has possession of the documents, must permit them to be inspected at all reasonable times by people who would be entitled to inspect them if they were not in the possession of the Ombudsman.

Division 6—Secrecy

101Z Meaning of protected information

Protected information is information that:

(a) is disclosed to, or obtained by, a person in his or her capacity as an entrusted person; and

(b) relates to the affairs of a person (other than an entrusted person).

101ZA Meaning of entrusted person

Each of the following is an entrusted person:

(a) the Ombudsman;

(b) a delegate of the Ombudsman;

(c) a person assisting the Ombudsman under section 101R;

(d) a person engaged as a consultant under section 101S.

101ZB Use or disclosure of protected information

(1) A person commits an offence if:

(a) protected information has been disclosed to, or obtained by, the person; and

(b) the protected information has been disclosed to, or obtained by, the person in his or her capacity as an entrusted person; and

(c) the person:

(i) discloses the information to another person; or

(ii) uses the information.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

Exceptions

(2) Each of the following is an exception to the prohibition in subsection (1):

(a) the disclosure or use is authorised by a provision of this Act;

(b) the disclosure or use is in compliance with a requirement under:

(i) a law of the Commonwealth; or

(ii) a law of a State or a Territory.

Note: A defendant bears an evidential burden in relation to a matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

(3) Except where it is necessary to do so for the purposes of giving effect to this Act, an entrusted person is not to be required:

(a) to produce to a court or tribunal a document containing protected information; or

(b) to disclose protected information to a court or tribunal.

101ZC Disclosure or use for the purposes of this Act

An entrusted person may disclose or use protected information if the disclosure or use is for the purposes of this Act.

101ZD Disclosure to the Minister

(1) Any of the following persons:

(a) the Ombudsman;

(b) a delegate of the Ombudsman;

(c) a person assisting the Ombudsman under section 101R;

may disclose protected information to the Minister.

(2) However, information must not be disclosed under this section if it relates to a request for assistance in relation to a dispute with the Department.

101ZE Disclosure to the Secretary etc.

(1) Any of the following persons:

(a) the Ombudsman;

(b) a delegate of the Ombudsman;

(c) a person assisting the Ombudsman under section 101R;

may disclose protected information to:

(d) the Secretary; or

(e) an officer of the Department who is authorised by the Secretary, in writing, for the purposes of this section;

if the disclosure is for the purposes of advising the Minister.

(2) However, information must not be disclosed under this section to the Secretary or a person mentioned in paragraph (1) (e), if it relates to a request for assistance in relation to a dispute with the Department.

101ZF Disclosure to certain agencies, bodies and persons

When this section applies

(1) This section applies if the Ombudsman reasonably believes that protected information will enable or assist any of the following agencies or bodies to perform or exercise any of the functions or powers of the agency or body:

(a) the Commonwealth Ombudsman;

(b) the Australian Securities and Investments Commission;

(c) the Australian Competition and Consumer Commission;

(d) any other prescribed agency of the Commonwealth, a State or a Territory.

Disclosure

(2) The Ombudsman may disclose that protected information to the person or body concerned.

(3) If any of the following persons:

(a) a delegate of the Ombudsman;

(b) a person assisting the Ombudsman under section 101R;

is authorised by the Ombudsman, in writing, for the purposes of this section, the person may disclose that protected information to the person or body concerned.

101ZG Disclosure with consent

An entrusted person may disclose or use protected information that relates to the affairs of a person if:

(a) the person has consented to the disclosure or use; and

(b) the disclosure or use is in accordance with that consent.

101ZH Disclosure to reduce threat to life or health

An entrusted person may disclose or use protected information if:

(a) the entrusted person reasonably believes that the disclosure or use is necessary to prevent or lessen a serious and imminent threat to the life or health of an individual; and

(b) the disclosure or use is for the purposes of preventing or lessening that threat.

101ZI Disclosure of publicly available information

An entrusted person may disclose or use protected information if it is already publicly available.

101ZJ Disclosure of summaries or statistics

An entrusted person may disclose or use:

(a) summaries of protected information; or

(b) statistics derived from protected information;

if those summaries or statistics, as the case may be, are not likely to enable the identification of a person.

101ZK Disclosure for purposes of law enforcement

Scope

(1) This section applies if the Ombudsman reasonably believes that the disclosure of protected information is reasonably necessary for:

(a) the enforcement of the criminal law; or

(b) the enforcement of a law imposing a pecuniary penalty; or

(c) the protection of the public revenue.

Disclosure

(2) The Ombudsman may disclose that protected information to:

(a) an agency of the Commonwealth, a State or a Territory; or

(b) an Australian police force;

whose functions include that enforcement or protection, for the purposes of that enforcement or protection.

(3) If a delegate of the Ombudsman, or a person assisting the Ombudsman under section 101R, is authorised by the Ombudsman, in writing, for the purposes of this section, the individual may disclose that protected information to:

(a) an agency of the Commonwealth, a State or a Territory; or

(b) an Australian police force;

whose functions include that enforcement or protection, for the purposes of that enforcement or protection.

Secondary disclosure and use

(4) A person commits an offence if:

(a) the person is, or has been, an employee or officer of:

(i) an agency of the Commonwealth, a State or a Territory; or

(ii) an Australian police force; and

(b) protected information has been disclosed under subsection (2) or (3) to the agency or police force, as the case may be; and

(c) the person has obtained the information in the person's capacity as an employee or officer of the agency or police force, as the case may be; and

(d) the person:

(i) discloses the information to another person; or

(ii) uses the information.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

(5) Subsection (4) does not apply if:

(a) the disclosure or use is with the consent of the Ombudsman; and

(b) the disclosure or use is for the purpose of:

(i) enforcing the criminal law; or

(ii) enforcing a law imposing a pecuniary penalty; or

(iii) protecting the public revenue.

Note: A defendant bears an evidential burden in relation to a matter in subsection (5) (see subsection 13.3(3) of the Criminal Code).

Conditions

(6) The Ombudsman may, by writing, impose conditions to be complied with in relation to protected information disclosed under subsection (2) or (3).

(7) A person commits an offence if:

(a) the person is subject to a condition under subsection (6); and

(b) the person engages in conduct; and

(c) the person's conduct breaches the condition.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

(8) An instrument under subsection (6) is not a legislative instrument.

Unfortunately, it is not only taxpayers who have had to pay the price of this government's incompetence when it comes to this scheme. It is students, far too many students, who have been the real victims—students who have had their time completely wasted; students who now have unfair debt associated with them; students whom this government, time and time again, has left to fend for themselves. Labor have long argued that we want to be on the side of standing up for these students, and that is why we have been calling for a VET Ombudsman for a very long time now.

A year ago, in the Senate, Labor moved to establish an ombudsman, and at that time the minister said that he would look into it. He promised to progress the idea. Well, a year has come and gone, and still there has been no action from this government, which has so often been the case when it comes to this particular case. Again, Labor moved first, and the government sat back, dillydallied, did absolutely nothing. But then last week, when these bills were introduced into the House, the Assistant Minister for Vocational Education and Skills, who is at the table now, said in her second reading speech that the government would finally agree and would establish a VET Ombudsman. 'Finally, some action,' we thought. Finally, the students would have someone to help stand up for them. The funny thing is, when you take a look closer look at the legislation which is before the House, when you really have a look at the bills, it reveals that there is nothing in them at all that would create this ombudsman.

So, a year after looking into it, after issuing a discussion paper, seeking feedback from the sector on the idea of an ombudsman, we are left with nothing from this government. That is despite the risk of these very bills declaring the idea of an ombudsman to be the most popular idea put forward by the government in their discussion paper. That is despite students, providers and consumer advocates all calling for an ombudsman.

More than anything else, this amendment today is about protecting the innocent victims of this government's incompetence when it comes to overseeing the VET FEE-HELP scheme. It is about protecting those who have suffered the greatest as a result of their mismanagement. This is a practical way to help those students who have been ripped off, who have been left with huge debts, with nothing to show for them. That is why these amendments before the House now create an ombudsman and give them the power to both resolve disputes and represent students. Ultimately, the point of these amendments are to help students with unfair debts and to get redress for the exploitation that they have suffered as a result of those opposite.

We cannot give students their time or their hopes and dreams back, but the least we can do is make sure that there is help at hand so that they have some way of trying to progress getting their money back. It is essential that such an ombudsman have the powers and the resources needed to protect students past, present and future.

We note that the government is proposing to flick this idea off to a Senate committee inquiry. I stand here today and say that there is not a single member of this chambe

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