Fiona Nash (NSW, National Party, Shadow Parliamentary Secretary for Regional Education) Share this | Link to this | Hansard source

I rise to make some remarks on the National Vocational Education and Training Regulator Bill and related bills. These bills aim to establish a national vocational education and training regulator, which is designed to shift responsibility from the states to the Commonwealth. The coalition is supportive of moving towards a national regulator, for a variety reasons. There are some very good arguments for doing that. However, we are not supportive of this legislation as it is somewhat shambolic. I know that my good colleague Senator Back, who was part of the inquiry, will elaborate on that comment.

We saw a COAG agreement in December 2009 which was designed to get a referral of powers from the states to the Commonwealth in order to establish the NVR—the national VET regulator. Within that process we saw dissent from Victoria and Western Australia. Victoria and Western Australia had significant issues with where the government was headed. They broadly supported what the Commonwealth was doing, but only in the context of enacting mirror legislation in their own states. They would not sign up to the referral of powers. So from day one there was a split between the states on how this should advance.

Running up to where we are at this point in time, there has been a real concern with the lack of consultation with stakeholders. That has been a significant concern. There has been a very narrow context of consultation from the government with those stakeholders. Several substantive issues need to be addressed by the government. We think those issues are so substantive that they have led to our opposition to the bill. Western Australia, in particular, has a number of concerns. It has indicated that the agreement made with the Premier at COAG in 2009 on that VET regulation has not yet been sufficiently reflected in the legislation as it stands. The understanding is that assurances were given to the Premier by the Prime Minister that the reforms would not result in the regulatory takeover of state-owned public providers, including the Western Australian TAFE colleges. That has been a very significant issue for Western Australia. They do not believe that the intent of the agreement has been reflected in the subsequent bill, and they want to see amendments to the legislation to address this.

Victoria certainly believes that the bills will undermine the consumer protections for VET students in Victoria. They are also very concerned that the bills are going to create uncertainty for the administration of TAFE colleges in Victoria, aligning with Western Australia’s concerns in this area. And they are significant concerns for those states. Victoria also has concerns about the regulation of apprenticeships. Victorian apprenticeships are to be overridden under the legislation. No equivalent arrangements are going to be established by the NVR bill to replace the state laws that it displaces, so a regulatory gap is going to be created by a lack of having anything established to replace it. The government should take some time to look at the anomalies in this legislation. It really does seem that it has been created in a very rushed manner. Obviously the government was trying to get referral from all states to get a conclusive agreement, but that has not happened. Victoria and Western Australia have these significant concerns that really are very substantial.

Victoria also believes that the non-referring states should retain responsibility for the regulation of all the VET providers based in their jurisdiction. Allowing the non-referring states to retain that responsibility hardly allows for a cohesive national system when we have these two states that still are not prepared to refer powers. Indeed, over the past year it seems to have become even more apparent, now that they have delved more deeply into the context of the bills and how they are going to operate, that their concerns have escalated.

There also seems to be the outcome with these bills that we are going to have two regulatory systems. It does appear that there will be state and federal systems for, my understanding is, at least 12 months. When the whole point of the legislation is to move to one national regulatory system to be able to get greater harmonisation and greater clarity around those rules as they apply across all states, it is very difficult to understand how the management of running concurrent systems will work. The other issue that that throws up is that there is the expectation that that will be a significant component of cost recovery in this. If the states are going to be running their own systems parallel, obviously they are going to need funding streams to be able to do that, which would indicate that that cost recovery component is not going to be available to the Commonwealth because those states are going to need that funding to run their own systems.

The coalition has a number of concerns. The three main ones are that there seems to be an attempt to bind the hands of parliament, if you like, in dealing with this bill properly. There is an issue from New South Wales, who have said that their agreement on referral of powers is contingent on the Commonwealth bill not being amended. That then provides a real conundrum for this place, I believe, where we do have the opportunity and we do utilise the opportunity on many an occasion, as my good colleagues Senator Marshall would agree. It is hamstringing the correct scrutiny of these bills if the charge is there that these bills cannot be amended because then the initial referral—and I understand that New south Wales is the host state—will not be able to go ahead. So it is very messy. That is probably not the technical term to use but it is really very messy. The coalition is quite right in the expectation that they have of government to go back to the drawing board and fix this. The intent is right; we certainly support the intent. But the legislation has too many holes and there is not enough cohesion across the states obviously with the position of Victoria and Western Australia, and that needs to be fixed.

There is a suggestion that the legislation should be enacted on the basis of an intergovernmental agreement. The agreement apparently has not even been signed yet, which is another issue. So we have another case here of seemingly the cart before the horse and the government rushing to get this through rather than properly and sensibly working through all of these issues so there can be some cohesion and clarity in how this regulator is going to work nationally and to ensure that all the states are on board in doing that. In moving towards a national system it just stands to reason that we want all the states to be part of that movement forward, we want all the states to be happy, because if they are not the system is going to break down and is not going to work in the optimal manner that we would expect it eventually would.

With the intergovernmental agreement, the fact that it is now only in principle is a real issue. The draft agreement is not public. I understand the committee sought to see a copy but it was not provided. Indeed, in the coalition senators’ dissenting report they make comment on the fact that there was no agreed intergovernmental agreement and that in their view this puts parliament in a ridiculous situation. I think that is quite correct. Across a whole range of areas we have seen a poor consultation process, we have seen these issues with Victoria and New South Wales, which very simply means that we cannot have the operation of an NVR in the way we would envisage without that cohesion between those states and without making sure that we address these concerns that have been raised, and not just by those states. Obviously New South Wales has an issue in terms of its referral and the effect of any amendments, and stakeholders out there in the community also have a concern about how this is going to operate and the anomalies that are there and the difficulties that are being presented to us.

So I again indicate to the Senate that the coalition is not supportive of these bills. Having said that, as I said at the outset we do agree with the intent. There is a great deal of merit in having an NVR, a national VET regulator. Obviously for providers who operate in more than one state there will be a particularly good benefit in moving to one national system, as there will be for a whole range of stakeholders right across the country and for a whole range of reasons. However, these bills do not do it in any way, shape or form that is going to provide any clarity and any cohesion. There are simply still too many anomalies. There are too many deficiencies within these bills. We say to the government, go back, start again, have another look. The intent is right but get the bills right so that we can have a proper NVR in place that is going to be able to operate efficiently and effectively.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Firstly I want to respond to a few things that Senator Nash said. Again we have a position where the opposition are saying they agree with the intent of the National Vocational Education and Training Regulator Bill but then scramble around to find some reasons to simply say no to it. I think that is what Senator Nash tried to do. She talked about a lack of consultation, and in a couple of moments I will take the chamber through the process of consultation and getting agreement through a COAG process. I think anyone who has been around this place for any length of time will know how difficult that is and the extraordinary levels of consultation that have to go into it. Senator Nash also talked about Western Australia having a number of concerns. They have one concern, and their one concern is that they want to continue to self-regulate their TAFE system. There are a number of reasons and on the surface you can mount a reasonable argument for that, but when you delve a little bit deeper into those issues there are very good reasons why state TAFE systems should also come under a national regulator. I will go into those couple of things in a minute as well.

As Senator Nash indicated, there were a number of concerns raised with the bill, but all the stakeholders—every one of them—throughout the Senate inquiry supported the bill. Some of them supported amendments and some of them suggested clarifications, but on the whole the bill was supported and its need was identified. The only opposition to it comes from the states of Victoria and Western Australia—of course, if they are not going to refer they do not have to. But the chamber should know that both of those states will implement mirror legislation anyway, in effect trying to establish a national standard for a national regulator, albeit it will not be a true national regulator without those states in it. If they are going to have mirror legislation, I suspect it will simply be a matter of time before they realise it is a bit foolish to spend lots of money having a state regulator doing exactly the same thing as a national regulator. I think through the natural evolution of these things the opposition from Victoria and Western Australia will diminish. I suspect it is more to do with a bit of politicking than any serious objections.

Senator Nash said this is rushed. This process started in December 2008 with the Review of Higher Education, led by Professor Denise Bradley, which recommended the creation of a national regulatory body responsible for accreditation and quality standards of all providers of higher education in Australia. The review also recommended the Australian government explore with the states and territories the option of expanding the regulator’s role to include accreditation and quality standards for vocational education. So the genesis of this reform was an independent review, the well-known Bradley review, and it started many years ago. This is not rushed. This is a proper, orderly evolution of an issue that has been identified in a review leading to a COAG process, which I will get to in a minute, leading to the legislation that is before the parliament now. It is not rushed.

On 20 November 2009, the Ministerial Council for Tertiary Education and Employment reached a majority agreement for referral of powers to the Commonwealth for the establishment of an independent national regulator for the vocational education and training sector. Victoria and Western Australia did not support the proposal, instead recommending consideration of other models to achieve national regulation and the retention of the principles of state accountability. Then we go to December 2009, when the Council of Australian Governments agreed to establish a national regulator for the VET sector to drive better quality standards and regulation to strengthen Australia’s international education sector. The agreement envisages that the regulator will be established under Commonwealth legislation and will be responsible for the registration and audit of registered training organisations and the accreditation of courses. Victoria and Western Australia elected to retain responsibility for regulating RTOs in their jurisdiction. While retaining this responsibility, those states have agreed to enact mirror legislation to ensure the same standards of operation and accountability across Australia’s VET sector. So we are going to get a common national standard at least. We do not yet have a national regulator, but that is clearly the objective of this government. It is a logical evolution and it is a logical outcome.

The COAG agreement provides for the national regulator to operate in non-referring jurisdictions. As I said before, Victoria and Western Australia determined that providers wishing to operate in more than one jurisdiction or enrol international students at post-secondary education institutions will be registered through the national regulator. COAG also agreed to establish a standards council to provide advice to the Ministerial Council for Tertiary Education and Employment for the development of national standards for VET regulation, including registration, quality assurance, performance monitoring, reporting, risk, audit, review and renewal of providers and accreditation of their qualifications. It is hard work to get agreement across the states, and once we have agreement across the states—New South Wales has referred its powers—my understanding and the advice I have received is that that then locks us into the bills that are before us, but it does not mean they cannot be changed later on. Any amendment here simply renders the whole process invalid; it sends everyone back to the drawing board. That is not a desirable outcome. It is not a desirable outcome for the VET sector or for quality standards of training and education in this country.

I am disappointed that the opposition is not going to support these bills. There are some difficulties with two states, and there may be a bit of politics involved with that, but I think eventually we will evolve into a truly national regulator. The opposition should support these bills. By supporting these bills they do not lock their colleagues who are in power in Western Australia and Victoria into the legislation. If those states do not want to refer they do not have to refer, but the opposition should support this package of bills to get the outcomes we desire.

Western Australia says, ‘Look, we want to continue to regulate our own system.’ The TAFE system is a high-quality system. Once upon a time, when I went to TAFE to do my apprenticeship, TAFEs were very rigid. They were fantastic education and training facilities, and provided great training, but they were incredibly rigid. They were very highly regulated and controlled by the states. Over the eighties and nineties, the whole VET sector and vocational education and training system was freed up. We saw the evolution of RTOs—registered training organisations—that also moved into some of the traditional areas that TAFEs were responsible for. As a consequence, TAFE had to get a little bit more flexible, a little bit more responsive to industry needs and we saw a very positive evolution of the TAFE system.

But that has led to a lot of entrepreneurial activity by the TAFE systems. We have seen them go into joint ventures and move into areas they have not traditionally moved in. Given that they are going to be that flexible, especially if they are entering into joint ventures with overseas training organisations or private training organisations—and they have been doing so for a long time—there is a need for them to come clearly under a national regulator as well. It is not simply about the state saying, ‘We fund it, we control it and we will make sure that it is regulated,’ because it goes a lot broader than that now. That argument would have stood up in the late seventies when I did my apprenticeship in the TAFE system. It does not stand up now.

I also think there is a bit of an issue when the state says, ‘This is our system—we fund it, we control it and we will regulate it, but we will also monitor it.’ I think that it would be preferable if the state systems actually acknowledged that having an independent national regulator is actually good public policy for them. It is better that an independent national regulator regulates the state systems rather than the states doing it themselves. I do have a problem where a state says, ‘This is ours—we will regulate it, we will monitor it and we will be the final arbiters of whether it is doing the right thing or not.’ I do not think that is a good reason. I think the positions of the Western Australian and Victorian governments in wanting to continue to play that role are poor public policy. So we do not support those positions.

I do not know, because I was not there, what was actually said during the COAG meetings. Sometimes in discussions people say things to each other and the two parties come away with different views of what has been said and what has been agreed. All I know is that, in the committee’s inquiry, there was no evidence of any agreement being broken. Western Australia clearly say they had an undertaking from the Commonwealth that they would be able to exclude their state TAFE sector, but there was a complete absence of any written agreement or anything to back that claim up. I do not say for one second that they do not genuinely think that that was the agreement reached at COAG. But often, as I said, there can be disagreement after the event if there is no written documentation of what was agreed. I thought, given that it was such an important thing, that there would be such a record—and maybe there is. But certainly there was no evidence presented to the committee that indicated that there had in fact been a breach of agreement, apart from WA saying that that was the case. I am not going to dwell on that issue. I just make the point that I do not know. So I am not going to comment further on the matter, but WA claim that that is the case.

As I said, the purpose of the bills is to provide for the establishment of a national regulator for the VET sector and a regulatory framework within which the National Vocational Education and Training Regulator will operate. The NVR bill will establish the National VET Regulator and provide the National VET Regulator with administrative and enforcement powers. Further, the bill creates offences and civil penalties relating to the conduct of RTOs and others involved with the VET sector. The bill also allows the use of infringement notices and enforceable undertakings as an alternative to criminal offences and civil penalties.

The need to regulate this industry is well established. This is an incredibly important industry for this country. These are the vocational skills that drive and underpin our economy. We already have a very high standard in the VET sector, compared internationally. It is high quality and it is important that we maintain that high quality. We have seen what happens when there is a lack of regulation and a lack of enforcement in the training sector. We saw some terrible things happening with international students and some colleges, some of which existed for reasons that I think were very dubious. I think some of these colleges were actually set up as immigration centres as opposed to training centres.

Through a lack of strength in the regulation and a lack of enforcement of what regulation there was, we saw the international standing of our whole education sector diminished—significantly diminished in some countries. We understand there were even protests in India about some of the things that were happening and that is of deep concern to this country. We understand why international students would want to come and utilise the Australian VET sector—it is one of the highest quality VET systems in the world. We encourage that. It is good for this country, it brings in money and it is good for our relations with other countries that people can get high-quality skills, Australian skills, and take those skills back to their own countries to utilise. So there are many and varied reasons why this is a very important sector to us.

But if we do not have a national regulator with teeth and good standards and good laws to back it up, we will potentially see failures such as those we have seen in the past and we cannot afford to let that happen. This government has a responsibility to protect this sector from rogue operators. The states in the past have shown that they are not always 100 per cent on the ball on some of these issues. I do not want to name anyone in particular or blame anyone, but the facts are there—the history is there.

Brett Mason (Queensland, Liberal Party, Shadow Minister for Universities and Research) Share this | Link to this | Hansard source

Senator Mason interjecting—

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

There has been a failure in the past and I know Senator Mason acknowledges that. But through the Bradley review and through the consultation and getting COAG agreement, this government has worked very hard to get us into a position where we are going to have a top-quality regulator, a national regulator, to ensure, hopefully, that we do not have the same sorts of problems that we have seen in other parts of the education sector. It is too important to this country; it is too valuable. We need to maintain the highest quality standards and we cannot afford to have our reputation trashed.

I am a little bit surprised and disappointed that the opposition is not supporting the government’s legislation. I have a lot of respect for Senator Nash but, as I said earlier, her contribution sounded to me as though she was scrambling around to find reasons to justify the opposition not supporting these bills more than having any genuine policy reasons. That is very disappointing given that, even though Western Australia and Victoria are not referring their powers, they are going to introduce mirror legislation so that at least we have the same standards.

The government want to get on with it. These bills are important to us. Sure, there could have been improvements in some elements of the legislation. In fact, the government senators’ report indicates a number of those areas. Overwhelmingly, on balance, the position to support the bills outweighs a thousand times any of the problems that could have been fixed. There is a serious technical problem about amending a bill when we already have the referral legislation from New South Wales. It would in fact make the whole process unworkable and send us right back to the drawing board. That is not necessary.

Government senators also recommend in the report that we have another look, after all the referrals have been taken, to see whether there are areas where it would be desirable to tidy up things or clearly, after the legislation has been operating for some time, to have another look at it and, if necessary, to revisit the legislation down the track. I am sure the government will accept those recommendations. The government senators’ report is very clear. We outline all the arguments for and against and mount a strong and compelling argument about why these bills should be supported in their current form. I am sorry I beat Senator Hanson-Young to the jump. I know she was before me on the speakers list but she was a couple of seconds late getting to her seat. I look forward to her contribution.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I rise to speak to the National Vocational Education and Training Regulator Bill and associated bills. I am happy to have heard both sides of the argument before putting forward the Greens position.

First and foremost I would like to point out that the government’s objection to amendments to this legislation, regardless of people’s position—that is, that the legislation cannot be amended because, through COAG, we have already gone through a referral of powers process with the states—really does question the government’s wisdom. The government want to put forward legislation and to get the parliament’s backing but are attempting to pre-empt what the parliament should be doing because, through the COAG process, they have gone through a referral process behind closed doors and away from the parliament. While I accept that that process has happened, perhaps on these types of issues it would be wiser not to do that first. We have seen this done by the government on a variety of issues, not just in relation to these bills.

The legislation provides for the establishment of a national regulator for the VET sector and a regulatory framework within which the regulator will operate, including providing the regulator with administrative and enforcement powers. The Greens, like most stakeholders in the vocational training sector, welcome the commitment to the National VET Regulator. Most people from the opposition, the government, the Greens and the sector agree that there should be a National VET Regulator. It is the process we go through to get there which is the sticking point.

I have spoken many times in this place about problems which have arisen in the sector in recent times, particularly for international students. We have all seen the negative international media coverage of Australia, for example in India, and also in our own domestic media. We know that young people who have come to Australia have received a pretty raw deal from some of the institutions they have studied with. We agree with the government that national consistency and regulation will help to ensure that appropriate standards will protect Australia’s reputation for excellent higher education services. That is what this is all about. If a student from anywhere else in the world wants a good quality education or wants to take their opportunities to the next level, why would they not choose Australia? It is a wonderful place to study. We have a wonderful array of institutions which do the right thing, which treat their students with respect and ensure their qualifications are world class. We need to protect that reputation and the National VET Regulator will ensure consistency and will protect the standards which we all agree should be upheld.

We are supportive of the National Vocational Education and Training Regulator Bill, which sets up the National VET Regulator, but we do have some concerns. These concerns have been raised by the sector at large, particularly in relation to consultation. We understand the government is prepared to further consider matters of concern which have been raised during the various Senate committee hearings as well as through other forums and we welcome the government’s commitment to consider future amendments to the legislation. My understanding is that, when the Minister for Tertiary Education, Skills, Jobs and Workplace Relations speaks to this legislation, a government commitment will be given to introduce amendments in August this year. It seems a roundabout way to go about this. I guess that comes back to the wisdom of getting referrals before allowing the parliament to debate the substantive legislation, but here we have it.

We are concerned with the process undertaken by the government in developing the legislation. There was clearly insufficient consultation with key stakeholders. This has come up time and time again, as it did with the university sector as well. Senator Mason, you would remember that in the discussion of the TEQSA Bill there was a lot of concern that the consultation was not right, so the government went back to the drawing board and consulted properly. Unfortunately, with the VET sector that has not happened, and the government do need to accept that that has been a flaw in their process.

There really did need to be more extensive consultation on the draft of this bill. You can see that through the evidence given to the Senate inquiry. It does highlight the importance of the Senate’s ability to review legislation and to give stakeholders and those who are going to be directly impacted by any piece of legislation the ability to feed into the process. We know the Senate has that responsibility and we relish the responsibility to get feedback on legislation, to refine, to fix, and to amend. Sometimes we do that in the vain hope that, even though they may have overlooked their role in consulting while drafting legislation in the first place, the government will listen to the concerns and the issues raised through those various Senate inquiry processes. Many of the concerns that remain with the text of the bill before us could have been resolved much earlier in the process with improved consultation, but I am thankful that the government are acknowledging that this will not be the end of the process. Passing this piece of legislation will not be the end of the process. They will commit to further amendments as needs be further down the track.

I will talk briefly about the referral of powers issues. The establishment of a national VET regulator relies on the referral of powers by the states. Of course, that is where we find ourselves in a tricky situation today. Given the New South Wales parliament has already passed their referring legislation, the government now tells us in this place that the bills before us cannot be amended without putting that referral at risk. I do think we need to consider the wisdom of putting the cart before the horse. While the Greens are supporting this legislation at this time, the government does need to consider a much cleaner, simpler and better way to make sure that states do not override the primacy of the parliament. The government needs to ensure a much better process for similar arrangements in the future. I think that is the key point here. We have spoken about the issues and the coalition have obviously highlighted those. While the Greens will support the legislation, our concerns remain the same. This is not just because the Greens believe the legislation should of course be put to the parliament for discussion and that it should be the parliament that decides; it is also because the stakeholders have said there are concerns.

One of the key issues that stakeholders have is that there is no objects clause to this piece of legislation and there should be. Many pieces of legislation like this have an objects clause. The Senate has gone through a consultation process with the Senate inquiry to find out what the stakeholders actually think. The stakeholders, the AEU and TAFE Directors Australia, are asking why there is not an objects clause similar to that in the TEQSA Bill, which of course we will be dealing with in this place in due course. The objects of this legislation would include: (1) to provide for national consistency in the regulation of higher education; (2) to regulate higher education using a standards based quality framework; (3) to protect and enhance Australia’s reputation for quality higher education and training services and our international competitiveness in the higher education sector; (4) to encourage and promote a higher education system that is appropriate to meet Australia’s social and economic needs for a highly educated and skilled population; (5) to protect students undertaking, or proposing to undertake, higher education in Australia by requiring the provision of quality higher education; and (6) to ensure students undertaking, or proposing to undertake, higher education have access to information relating to higher education in Australia. They are six objects that this bill is obviously trying to achieve and should be directly highlighted so that everyone knows what this is about. It makes sense to me. It is good practice for bills of this nature to include an objects clause and we would urge the government to consider including such a clause in the amendments they are committing to make in August this year.

More significantly, the Australian Education Union and TAFE Directors have also called for this legislation to incorporate minimum standards into the VET quality framework. The standards suggested are common-sense requirements, such as that registered training organisations have as their proper or significant purpose the education and training of students, while also recognising enterprise RTOs. A basic standard for registered training organisations is that they believe their purpose is the education and training of students—pretty simple. If we want to have some national standards and a national regulator, why would we not set the most basic requirements? A second requirement would be that registered training organisations are required to act in the best interests of their students—pretty simple, pretty commonsensical. When we are talking about the need for a national regulator, let us make sure we put those standards in. A third requirement should be that RTOs are able to demonstrate the adequacy of their physical and human resource infrastructure and educational viability—again, pretty basic. If we are setting up a national regulator, let us make sure they are all sticking to those basic standards. We think that is the purpose of registered training organisations. It is preferable for standards such as these to be reflected in the legislation and we urge the government to work towards that outcome, but at the very least the practice and policy of the regulator should clearly reflect these matters. That is something I would like the government to go away and have a think about.

A further concern is that, unlike the regulatory scheme for universities, the VET Regulator does not allow for the development of provider categories of registration or provider category standards. In the VET context this means that the TAFE system—the public providers of vocational education and training—have no ability to be recognised as pre-eminent providers in the sector. I think due respect needs to be taken into consideration there.

Of course, again, because the Senate did its job and did the consultation that the government neglected to do, the report on the bill from the Senate Standing Committee on Education, Employment and Workplace Relations raised a number of concerns with the offence and penalty provisions and with the enforcement powers accorded to the regulator. I do not need to repeat all of those concerns as I think that everyone can have a read of the report and the various submissions. It is important for the Greens to say that we share these concerns and urge the government to work with stakeholders to modify the provisions. There is still a lot of tweaking that needs to happen to this legislation.

In particular I note the need to amend sections 60(1) and 60(2) to ensure that a student does not commit an offence if they do not return cancelled VET qualifications or statements of attainment in circumstances where they did not know the qualifications had been cancelled. I think we need to ensure that we look after the best interests of students in this area. So, those are some more tweaks that this legislation clearly, clearly needs.

In conclusion, the Greens will support the passage of this legislation with a very clear commitment from the minister that these issues need to be dealt with in a common-sense manner, and that there will be a commitment to legislation amending this bill in August this year. That is what we want to see, and we would like the minister to commit to that in the speech today.

Students in the VET sector deserve high-quality education and training services, and a national regulator is an important step to ensuring higher standards. I will just reiterate that this process would not be looking so messy if the government had gone through the proper consultation that the sector deserved in the first place. Thankfully, that is what the Senate does well. We run inquiries into legislation, we review and we look at the direct impact that legislation would have. Thankfully, the Senate did its job. Unfortunately, we are in a messy situation because the government put the cart before the horse and neglected to do their job in consulting the stakeholders.

Brett Mason (Queensland, Liberal Party, Shadow Minister for Universities and Research) Share this | Link to this | Hansard source

The coalition is, in principle, in favour of a national regulator for the vocational education and training sector. We support this idea for the same reason we support the creation of TEQSA, the Tertiary Education Quality and Standards Agency—which, of course, is for the university sector—to maintain consistent standards and quality across the sector on a national level. I note that the minister introduced the TEQSA legislation this morning in the Senate. Like Senator Hanson-Young, I look forward to that debate over the next few weeks.

If anything, the VET sector is much more in need of a national regulator than universities, which, in general, both manage themselves well and are well managed under existing institutional arrangements. The VET sector, however, has been much in the news lately and, sadly, usually for the wrong reasons. Everyone interested in education issues in Australia is aware of the spate of collapses of VET institutions, mostly, but not exclusively, in Victoria, many of which operated more as visa and permanent residency factories than as educational institutions. On that issue I join with Senator Marshall, who I think made as always an intelligent contribution to this debate, and he is quite right to suggest that some of those institutions were set up for that purpose. It certainly seems that they were. The government had to act in response to that.

There have also been many worrying reports of violence directed against overseas students undertaking VET courses, again, but not exclusively, in Victoria. The federal government has been slow to act on some of these issues and when it did—and it had to—it did so in a haphazard manner characteristic of the government’s general approach to post-secondary education. The visa requirements were eventually tightened; that is true. Arguably, however, they were tightened a little bit too much with the government going from laxity to overreaction, which is now making it much more difficult for genuine overseas students to seek education in Australia, and it is putting Australian educational institutions at a disadvantage in comparison with some of our foreign competitors.

The issue of violence against students, fortunately, does seem to have subsided but, again, Senator Marshall was right, as a bad impression seemed to linger, particularly I might add, in India. That country, of course, is a very important market. Be that as it may, the need for a national VET regulator does remain if only so that the mistakes of the past are not allowed to happen again. The government has certainly made that case.

Although the problems I mentioned before have been largely restricted to the VET sector they do, sadly, cast a shadow across universities as well. The impact appears right across the higher education sector creating an inaccurate impression that Australia is somewhat unstable and even a bit violent and, indeed, even a bit of an unwelcome destination for overseas students. That is a mistaken but a bad impression. Education is far too important, economically, for Australia. We cannot afford to take another hit to our longstanding and otherwise good international reputation as a provider of quality education services.

All honourable senators will know that education is Australia’s fourth largest export industry after iron and coal. Only last year it was pushed from its traditional third position by the rise in the price of gold. Yet it remains Australia’s largest services export industry. A quarter of a million overseas students, who every year attend Australia’s schools, VET institutions and universities, inject billions of dollars into the Australian economy as well as billions directly into the education institutions they attend, thus cross-subsidising the teaching infrastructure and learning opportunities for our domestic students in Australia.

In addition to economic benefits there are also many intangible and sometimes immeasurable benefits as overseas students build lifelong friendships and connections with their Australian colleagues. They add to the international reservoir of goodwill towards our country and in some cases stay on to become residents and citizens, thus enriching Australia with their knowledge, their expertise and their hard work.

I was speaking to a government minister not so long ago who said that he was in Malaysia recently and was surprised but delighted to learn how many of the Malaysian cabinet had been educated here in Australia. There is no doubt that that serves as a great wellspring of good faith and cultural congruity with our country. That is a great thing. It is a good thing for Australia and for Malaysia.

Australia has for years, if not decades, been considered a world-class education provider for international students. Considering our small population, we have managed to attract more students per capita than just about any of our overseas competitors. The Australian educational achievement is quite remarkable. We have done very well in educating so many citizens of the world. We have built a strong and solid reputation as a welcoming destination offering a great lifestyle as well as excellent quality education for overseas students but, as all my colleagues this morning have said, our position has been under threat over the last few years. I think there would be unanimity on that in this place.

Our reputation has been affected by what some have called an almost perfect storm of unfavourable circumstances over the last few years. The global financial crisis has reduced the number of students seeking education overseas right across the globe. We have been hit by the GFC. Many of our target student markets such as India and China have been slowly but steadily developing their own quality domestic higher education services, negating the necessity for ambitious young people to travel overseas in order to gain a good education. In addition, our competitors in the international education marketplace—particularly the United States and, in very recent times, Great Britain—have been much more active and much more aggressive in recruiting international students to their marketplaces, somewhat putting pressure on ours. The high Australian dollar also does not help. It makes education in Australia that much more expensive for overseas students than it perhaps has ever been before.

Lastly, the controversies surrounding our VET sector do not help our image and our reputation overseas. They do not help at all. All these factors have combined and led to a fall in the number of international students attending Australian higher education institutions both in the VET and the university sectors. That in turn has meant less income for these institutions, which are already very stretched for resources. The sector is under great pressure. It is true that the numbers seem to have started bouncing back again. They have bounced back but with still a long way to go. The worst of the global financial crisis is thankfully behind us although I think it is fair to say the international economy is rather patchy. We cannot do much about the growing education standards and opportunities across the developing world. We also cannot make our international competitors abandon their quest for a greater share of the market as the United States and Great Britain are not about to leave the industry. Nor can we magically decrease the value of our dollar.

We certainly are duty bound to do everything that is in our control in order to rebuild a somewhat frayed reputation and to show the world that Australia remains an attractive destination for international students, offering them quality education, as well as a friendly educational experience. That is where the National VET Regulator comes in. The fact that we support the legislation in principle—as my friend Senator Nash spoke about before—does not extend to blindly agreeing to anything that the government puts up. As always with this government, the devil is very much in the detail and in the implementation. It seems that no matter how noble their intention—and I think the intention of the government is good—the government has yet again managed to botch yet another of their flagship education initiatives. It has happened—another flagship and another botch.

This legislation before us essentially requires the referral of powers from the states to the federal government and abolishing the state based regulators. That is essentially what we are doing. Otherwise all we are doing is merely adding another layer of bureaucracy and red tape on the system, creating innumerable future problems and potential jurisdictional conflicts. So far only the New South Wales government has passed legislation referring its powers to the Commonwealth. However, we now know that, should there be any amendments of the bill before us, the New South Wales referral would not support such an amended bill. We will be back again to square one.

In addition, Victoria and Western Australia have refused outright to sign up to the idea of a national regulator and Tasmania, South Australia and the great state of Queensland will continue to maintain their state regulatory bodies alongside the national one, following what they refer to as a wait-and-see principle to find out how the new system works and whether it is in their interests to abolish their own state regulators. In other words, this is becoming a bit of a shambles. Instead of a blueprint for a truly national system, what we have from the states is one yes, two noes and three maybes. Despite this we are being asked to vote now for a piece of legislation that is predicated on the referral of powers by all the states—the whole lot. Should this legislation be passed, we will end up with a system that will have two layers of bureaucracy instead of one—more red tape, more capacity for conflict, more duplication and more confusion.

What the government should do, and I urge my friends in the government to do this, is pull this bill off the agenda, go back to the states, restart the negotiations, make sure that concerns of stakeholders are addressed, obtain an agreement from all the states that they all refer their powers to the Commonwealth and then, and only then, come back to the parliament and put it again before the Senate. I think then you may find that the coalition is more than happy to assist; otherwise, we are just wasting our time and participating in another Labor-created mess, another botched implementation that does not achieve its objectives. For these reasons the coalition will not vote in favour of this bill at this time. We remain in principle in favour of a national VET regulator but we remain even more in favour of good policy making, good governance, less duplication, less bureaucracy and much less red tape.

Catryna Bilyk (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

I also rise to speak on the National Vocational Education and Training Regulator Bill 2010 [2011] and the two associated bills that deal with transitional provisions and consequential matters arising from the main bill. The main bill, as we know, will form a new statutory authority, the National Vocational Education and Training Regulator, or NVR, with responsibilities and powers for the registration and audit of registered training organisations that operate in multiple jurisdictions, train international students or operate in the territories or one of the referring states in the accreditation of courses in the VET sector.

In speaking today I am somewhat amazed that those on the other side are not supporting this bill. Recently the Senate Education, Employment and Workplace Relations Legislation Committee undertook quite a lengthy inquiry into the National Vocational Education and Training Regulator bills. The first recommendation in the committee’s report is that the bills be passed in their current form. So I am somewhat perplexed by the attitude of those on the other side—but we do know that they oppose just about everything for opposition’s sake. Having listened to some of the arguments from the other side today, I think their arguments are particularly weak. We all know the importance of training. We all know how important it is to the community. We all know how important it is to students. We also know how exceptionally important the strong links are between vocational education and training in the move between compulsory education and work. I will speak more about the committee later and deal with the bills first.

The Commonwealth draws its power to establish the new authority from a referral of powers from most states and through its constitutional powers to operate in the territories and non-referring states. The bill empowers the National VET Regulator to register and audit training providers and to accredit courses. The bill gives the NVR the power to audit VET providers to ensure that they meet standards approved by the ministerial council. It also provides the NVR with an extensive set of regulatory options, which include administrative sanctions and civil and criminal penalties to ensure compliance with VET standards. This is of particular importance.

The transitional bill establishes the conditions to allow a smooth transfer of operations and staff from current state and territory regulators to the new national body. These include administrative actions by the state regulators such as the registration and suspension of providers and their courses, which will continue under the NVR. Unfortunately, there is always going to be some people who do not do the right thing in regard to training. Records in possession of the state regulators are to be transferred to the NVR upon commencement. In addition to that, any legal actions to which a state RTO, or registered training organisation, finds itself a party will, on the commencement of the NVR, become the NVR’s to pursue.

The consequential amendments bill contains the final set of amendments needed to ensure that the new regulatory framework interacts properly with other regulatory frameworks and funding programs. The bill will amend the Education Services for Overseas Students Act 2000, the Higher Education Support Act 2003 and the Indigenous Education (Targeted Assistance) Act 2000. The ESOS Act amendments are primarily targeted at making the NVR the designated authority under the ESOS Act for providers which are registered with the NVR for the purposes of delivery of VET courses to overseas students. The act will also strengthen the regulation of the international students sector by allowing the minister to make standards for ELICOS and foundation programs.

With around 37 per cent of international students studying in the VET sector, the establishment of the national regulator is a very important measure to ensure quality of, and sustainability in, the international education area. One of the other inquiries that the Senate Education, Employment and Workplace Relations Legislation Committee was involved in and, as a member, I participated in was the international students inquiry that looked at issues concerning international students. The Joint Standing Committee on Migration has looked at these issues as well. So these issues are very important and it is high time we had a national regulator to help sort out any issues that arise in this area.

The changes to the Higher Education Support Act 2003 will also reflect the introduction of the new National VET Regulator. The amendments allow for the sharing of information between the minister and the relevant VET regulator for limited purposes such as deciding whether to approve a body as a VET provider. The changes to the Indigenous Education (Targeted Assistance) Act will ensure that its definitions reflect the introduction of the National VET Regulator and delete other outdated material.

The three bills together implement the decision made by COAG in December 2009 to create a national VET regulator as a Commonwealth statutory body. Back in 2009 COAG made the decision that we should have a national VET regulator. As I said, I am unsure why those on the other side of the chamber are opposing this legislation. I think it is just part of their general attitude of ‘let’s oppose everything for opposition’s sake’. As I said earlier, their arguments have been fairly weak and insubstantial. They might do better to support this legislation and get it through so that we can start work.

New South Wales will be the lead referring state and will pass referral legislation this year or has already passed it. Other referring states are expected to follow over the next year. Non-referring states—Victoria and Western Australia—have committed to the introduction of mirror legislation. If the reason that the opposition is opposing this is that Victoria and Western Australia do not want to join, the fact that they are introducing mirror legislation should send a pretty firm message to those on the other side that they need to support this.

The National VET Regulator will use constitutional powers to regulate providers who have international students or who also operate in a referring state or territory in line with the COAG decision. The NVR will ensure that training providers comply with standards for NVR-registered training organisations. These standards will reflect the Australian Quality Training Framework standards approved by the Ministerial Council for Tertiary Education and Employment. This provides a mechanism by which the states, in consultation with the Commonwealth, can continue to provide input on what represents the minimum standards for providers in the VET sector.

Funding for the NVR was included in the 2010-11 budget as a part of the Skills for Sustainable Growth package. The Labor government has committed $55 million over four years to create the National VET Regulator. The regulator will have appropriations of $94.9 million made available to it between commencement in 2011 and June 2014. The NVR will be able to cost-recover through a number of specific services that it will provide. It is expected that its cost-recovery activities will return $39.9 million to the budget over four years.

I would like to reflect on some comments made about these bills in the final report of the inquiry into the bills conducted by the Senate Education, Employment and Workplace Relations Legislation Committee, of which I am a member. Before I go into that, I will mention some of the facts to do with the inquiry. On 10 February 2010, the Senate referred the bills to the Senate committee for inquiry and report by 21 March 2011. The committee wrote to 87 organisations and individuals inviting submissions, which were due by 1 March. They received submissions from 22 individuals and organisations. I thank all those organisations and individuals who made submissions to the inquiry and all those who gave evidence at the public hearings.

The reason that we had this Senate inquiry was that in December 2008 the review of higher education led by Professor Bradley AC recommended the creation of a national regulatory framework. DEEWR provided some advice to the committee at a hearing on these bills that was similar to the advice that they provided on the corporations bill. I mentioned before that the committee recommended that the bills be passed in their current form. That was the first recommendation from this committee. It still surprises me that after this inquiry, which members of the opposition were involved in—Senator Back, who is here now, was involved in it; Senator Cash was—they do not want to take much notice of the outcome. For some reason that is yet to be determined they oppose these bills.

What happened back in 2008 was that Professor Bradley recommended the creation of a national regulatory body responsible for the accreditation and quality standards of all providers of higher education in Australia. The review also recommended that the Australian government explore with the states and territories the option of expanding the regulator’s role to include accreditation and quality standards for vocational education and training. I do not think that there is one person in this room or in this Senate that would dispute the importance of quality vocational education and training.

On 20 November 2009, the Ministerial Council for Tertiary Education and Employment reached a majority agreement for referral of powers to the Commonwealth for the establishment of an independent national regulator for the vocational education and training sector. Victoria and Western Australia did not support the proposal and instead recommended the consideration of other models to achieve national regulation and the retention of the principles of state accountability. Following that, on around 7 December 2009, the Council of Australian Governments agreed to establish a national regulator for the VET sector to drive better quality standards and regulation and to strengthen Australia’s international education sector. It was envisaged in the agreement that the regulator would be established under Commonwealth legislation and that it would be responsible for registration and audit of registered training organisations and the accreditation of courses. That is some of the background to why we had the inquiry and why the inquiry recommended that the bills proceed.

In the last few minutes, I will speak about the importance of this. The report concluded that Australia will benefit from a single national approach to vocational education and training. This was the message clearly sent by major stakeholders in the field.

I have a background in vocational education and training. I spent a couple of years working within the job skills sector until the Howard government chopped those programs. It was of great importance. The initial pilot program was related to employing 20 long-term unemployed mature-aged women in the childcare industry—and of course we all know how important it is to make sure we have quality, accredited and trained childcare workers; and back in the nineties, at entry level, there was no such course for long-term unemployed people. So it was wonderful to be able to set up this pilot, run out of Tasmania, my home state, and to see the benefits that that ensured. To this day, over 10 years later, there are still women that I am in contact with who were in that program and tell me not only that it changed their lives but it gave them the confidence to move on, because they actually had some training, even though they had been out of the workforce for over five years—in fact, many had been out of the workforce for 15 or 20 years. So that was a major achievement for the childcare industry, and it was a shame that Mr Howard saw fit to cut the Job Skills program as a whole.

After that pilot we were also involved in placing over 360 people into employment programs through local government within Tasmania. Many local governments participated in that program, to employ mainly blue-collar workers—but not all; there was a range of projects there, and a number of white-collar workers. That was a particularly beneficial program not only to the long-term unemployed but also to the employers, who had the chance of getting people in and giving them some on-the-job and off-the-job training. At the end of that time a number of those people were either retained in their local councils or found it easier to find work, because they had that experience behind them in local government in Tasmania.

So the importance of having the VET Regulator cannot be underestimated. I think that those on the other side who are proffering delays need to become a bit accountable about why they are not supporting this. As I said earlier, I have not really heard any deeply fulfilling arguments from those on the other side. If they have severe opposition to it, they need to voice that—because as yet I have not heard it.

But I have digressed. I was talking about the report from the Senate committee. The report concluded that Australia would benefit from a single national approach to vocational education and training. As I said, this was the message that was clearly sent by major stakeholders in the field. The benefits of a national approach include reducing complexity for businesses and having a key quality assurance mechanism, which improves confidence in Australia’s VET system. It can only improve confidence in the workplace, it can only improve confidence for employers and it can only lead to improvements in the Australian workforce and productivity in general. The Australian Council of Trade Unions supported the change. They said it was something that had been needed for some time. The Australian Council for Private Education and Training said:

… the proposed legislation significantly strengthens the ability of the regulator to take action against seriously non-compliant providers [and] will therefore serve to improve the quality of vocational education and training being delivered in Australia.

The Minerals Council of Australia also welcomed the ‘reduction in the complexity of the regulatory framework’. The Master Builders Association said a national regulator would deliver ‘consistent robust national regulation of training providers and courses.’ And ACCI, the Australian Chamber of Commerce and Industry, said that the establishment of the NVR would help to rectify problems with poor-quality providers and their lack of compliance with state and territory quality requirements. It is clear from the comments of these stakeholders that the creation of the NVR will improve the quality of Australia’s VET system and reduce red tape for business. It will deliver these outcomes for more than 1.2 million students and thousands of Australian businesses committed to the sector. As the Minister for Tertiary Education, Skills, Jobs and Workplace Relations, Senator Evans, has said:

The new regulator will ensure that students are better equipped to take advantage of the growing economy, and give employers greater confidence in the skills of Australia’s VET graduates …

As I said, I do not understand what the opposition is. I have yet to hear a clear and concise argument about why those on the other side are opposing this. Once again, I think it is them playing games maybe with regard to states that just happen to be in opposition hands at the moment, and wanting to be seen to be doing the right thing by those states. I think that is an inappropriate activity to undertake in regard to something as significant and important as vocational education and training in Australia and the future of our workforce, and a large number of students and employees who also undertake some VET education— (Time expired)

Christopher Back (WA, Liberal Party) Share this | Link to this | Hansard source

I am pleased to be able to assist Senator Bilyk in her comprehension of why the coalition is not able to support a recommendation that the National Vocational Education and Training Regulator Bill 2010 [2011] and related bills proceed in their current form at this time. I earnestly hope, once they spend some time and get it right, that we can actually have this reintroduced without delay and we can pass it—because there is plenty of evidence, as has been stated by others, of RTOs and others strongly supporting a national approach to VET regulation and auditing, having regard to the number of organisations that operate across state and territory boundaries. Indeed, all states and territories see the merit of nationally consistent regulation and auditing of the sector, so what a great way to start.

The two states of Western Australia and Victoria have both said that they are prepared to introduce mirror legislation into their parliaments to give effect to this aspiration. You could not have a better sense of goodwill. The Western Australian Premier stated that he was given an assurance at COAG by the then Prime Minister—and he believed it—that the national system would not result in the transfer of regulatory responsibility for state owned RTOs, being mainly TAFEs, but of course this is not reflected in the legislation that is before the Senate today.

The states operate, fund and own the TAFE colleges and institutes in their states. Not unreasonably, Western Australia and Victoria believe that the regulation and auditing of the processes in their states is superior to that of others and superior to what we would be likely to see nationally, and they would ask why we would have a race to the bottom in this process. I again emphasis that they are interested in and want to see nationally consistent legislation, but that does not mean that consistency equals control. They would join me in the observation that there would be very few instances in which the federal government has been able to demonstrate its superiority in delivering services over and above that of the states.

In its submission to this inquiry, Victoria raised some very interesting points about the draft legislation relating to constitutionality and whether or not, under NVR, registered training organisations may gain some immunity from Victorian laws governing administration of state TAFE institutes under, I believe, clause 93A of the bill. Those are very reasonable and reasoned objections and concerns. They also noted concern about the potential to regulate apprenticeships in the state of Victoria. Neither Western Australia nor Victoria—both now referred to as non-referring states—believe at this time that the national regulation is where it should be. I am sure Senator Bilyk is listening carefully when I say that it does allow the opportunity for the department to negotiate with those two states to address their concerns and bring them in as referring states.

The second point I wish to make goes to intergovernmental agreements and parliamentary scrutiny—after all, this is what we are here to do, as I understand it. The creation of a national approach to VET is underpinned by government negotiations and an agreement that there be referral of powers to the Commonwealth by the states and territories. Unfortunately, there is no agreement yet in that area. I am concerned about how under the Constitution the federal government could not introduce this legislation so it has done so through the agency of an act of parliament in New South Wales with referral back to the Commonwealth. We should all be concerned about this process. That legislation was passed in late November last year in New South Wales and given royal assent in early December, but it has not yet been enacted. One can only wonder after this weekend whether it might ever be.

We should have concerns for three reasons. Firstly, this has the effect of tying the hands of the federal parliament by preventing us from improving and examining legislation that we have been asked to enact. We cannot change it; we cannot amend it. I will come back to that. Secondly, there is a suggestion that the legislation should be enacted on the basis of an intergovernmental agreement when the agreement has not been signed by the participants, has not been made available for scrutiny by this committee or this parliament, and has not been made public. Those are real concerns. Thirdly, there was a poor process of consultation on the exposure draft of the legislation, including a failure to present it to the committee for its consideration. This surely goes to the heart of what the role of a Senate committee is.

We also note that the Senate Standing Committee for the Scrutiny of Bills had equal concerns and raised them with the Minister for Tertiary Education, Skills, Jobs and Workplace Relations. The minister advised that committee that if there is an amendment to the draft legislation in this parliament then the New South Wales referral will not support the enactment of the amended bill. This would happen even if a small number of amendments were made. Any amendments to the text of the New South Wales bill will therefore delay or prevent the establishment of the National VET Regulator. It is a shame that Senator Bilyk is not here because this goes to the heart of it.

In summary, the government is asking this parliament, even though the views of the legislators were never sought and the bills cannot be revised, to give consideration to legislation that we cannot change, amend, delete or alter. Finally, we are then being prevented from carrying out the scrutiny we are properly charged to undertake. Surely there would not be a senator in this place who would disagree that it would be wrong to give haste to this legislation when those provisos have not been met. I come back to the point that there is widespread support for national consistency in VET regulation and auditing. That has been documented in the committee report and I, and others on my side, support it.

In his contribution, Senator Marshall said that the process must not be held up. There is no reason for the legislation to be held up if you get it right. If the agency of the New South Wales legislation is used it can be presented into the legislature of any other state for the same purpose. Should the legislation be right and should we be happy with it, there is no reason for delay. The parliaments of Western Australia, Victoria, South Australia and Tasmania are sitting. Once we have seen that this legislation is fit for passage there is no reason the same process used in New South Wales should not occur here. In other words, we can radically improve the legislation.

Senator Hanson-Young drew attention to the fact that there is no object in this legislation. How she could then go and say that they will support the legislation with such a glaring omission is beyond me, and I urge her and her party to reconsider, given the fact that there does not need to be a delay in the eventual passage of this legislation. We were told by the department that there is an intergovernmental agreement with the states and territories in which the objectives are set out, but it is known, as indicated by others, that there is no intergovernmental agreement in place. It has not been endorsed by all the states and territories. It has not been signed off; it is only a draft. Furthermore, the committee have not had the opportunity to scrutinise that draft.

In summary, the parliament here has been notified—it cannot revise the bills without invalidating the New South Wales referral powers. We are being asked to support legislation in the absence of a signed agreement between the jurisdictions and indeed even in the absence of its public release. This is not satisfactory.

I come, then, to the point of consultation, but not with the wider community. It was argued by the department and we were given instances of the dates on which various consultations took place with state and territory agencies. They were in fact disputed in some instances, but I will not go to that point here. What I will go to is the lack of consultation with this place. All of this legislation, in its draft form, could have been presented to the Senate Standing Committee for the Scrutiny of Bills and the Senate Education, Employment and Workplace Relations Legislation Committee in 2010, when the draft was going to the New South Wales legislature. We could then have had an opportunity to consider these bills at the time they were being provided to other stakeholders. On that basis the majority report of this particular committee agrees that that recommendation should have been given effect and it should have taken place in October 2010. We are being asked to pass the legislation well and truly after the horse has bolted.

I come to the question of investigatory powers, including the right of entry, search and seizure. When you look at the legislation, you have to pinch yourself as a reminder that it is actually to do with vocational education and training. Other points have been made today about how harsh it appears to be for graduates through the program. If for some reason they have lost their qualification and do not return it to the appropriate authority, they may be facing a strict penalty. I agree completely. Again, if the time is permitted for us to review and amend this legislation, I am sure that is one thing that the government would also wish to fix up before the legislation comes back to this place.

The legislation equips the national regulator with significant investigatory powers, including the powers to search premises, warrant, question persons on the premises and seize documents. To the extent that those RTOs were abusing the process, as we saw, regrettably, with overseas students’ educational aspirations, nobody could disagree with those particular clauses. However, I concur with the Scrutiny of Bills Committee in its view that the provisions do not contain sufficient safeguards or accountability measures, despite its requesting and receiving advice from the minister, who, I am pleased to see, is here in the chamber.

I support the view of the scrutiny committee in providing a number of options to bring the enforcement powers into line with best practice while still ensuring a robust, regular pre-response to RTOs who fail to comply with properly structured frameworks. I would support that entirely. However, I recommend that the bill be amended to ensure that the national VET regulators exercise their powers appropriately, with due regard to personal rights and liberties, and that the Fair Work Act be investigated as a possible model to exercise powers of entry, search and seizure. For some reason the draft legislation for the NVR seems to go well beyond even those powers that exist in fair work legislation. Again, without delaying the passage of the bill unduly: get this right, fix it up, bring it back and allow us to vote on it when that has been done.

I was deeply concerned with the evidence of some parties on enterprise RTOs, those being registered training organisations that are themselves enterprises. They are both government and private-sector organisations, the Australian Taxation Office being an example. In the private sector, Qantas is another example, as are the retailers Woolworths and Coles. In other words, these organisations attend to their own training. They are enterprise RTOs. The thrust of the submissions of some parties, who said that the only or dominant purpose of an RTO should be as a registered training organisation, deeply concerned me. I do not see the logic of that. I do not see why an entity such as the Australian Taxation Office or Qantas should be denied the right to frame, to conduct, to deliver and to examine its own training operations, as long as it is externally audited and complies with VET regulation. In fact, it has been argued that the enterprise RTOs probably lead the sphere, particularly in the private sector, for the excellence of their work. I would bitterly oppose any attempt to in some way hamstring enterprise RTOs so that their only or dominant activity is registered training other than what they undertake for the purposes of their commercial reality.

In summary, I agree—and my colleagues on the coalition side agree—with the concept of a nationally consistent VET regulator and auditor process. It would provide significant advantage, especially to cross-border RTOs and the students, employees and graduates who undertake the training within that sector. Passage of this legislation must be delayed until all avenues are exhausted to satisfy the reasonable concerns of the two non-referring states, Victoria and Western Australia. I am confident, having heard the evidence and having looked through the documentation, that proper negotiation with both of these states can in fact satisfy the concerns they have quite rightly raised so that we can move towards a full, nationally consistent format. Only the highest standards for regulation and audit should be adopted. I am not convinced that an audit process here in Canberra or in the eastern states is going to be the most effective in a state that is 3,500 to 4,000 kilometres away. If there are states that wish to pass this regulation and audit role over to the national regulator, that is all well and good. If the states that do not wish to do that want to put through mirror legislation, let them do so. Let them maintain control of the regulation and audit process. But let us ensure that that audit process is reported to the national body so that we can ensure consistency. Certainly there is no reason at this time for this legislation to be rushed through.

It has been put to us, and Senator Marshall in his contribution made the point, ‘Just put the legislation through and then by amendment et cetera we can address this afterwards.’ Regrettably, I do not have sufficient confidence in the government that it would be able or willing to do that. There is no reason for delay. We can get this right. We can address it, we can undertake that consultation, we can make the changes that we need in those areas that I have outlined, we can bring it back to this place, and having done so we can then refer it to another state for passage through their legislation and referral back to the Commonwealth, so that the due processes can be undertaken.

My final point is that it is the role of this place to properly scrutinise legislation that comes before its committees and through its committees by report to this parliament. If we are stopped, if we are sequestered, if we are emasculated in our processes of being able to review that legislation, then, as I asked during the Melbourne hearing, what are we doing here? It makes a mockery of that process if we are asked to actually consider legislation that has gone to the New South Wales parliament months ago when it could have come before our committees at that time and we are not able to even make small amendments. I commend the coalition senators’ position on this and urgently ask that the government give favourable consideration to it.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I will give a relatively brief contribution on the National Vocational Education and Training Regulator Bill 2010 [2011]. I indicate that I will be supporting this bill, subject to some assurances I believe the Minister for Tertiary Education, Skills, Jobs and Workplace Relations will be giving in relation to further amendments to this bill. Can I assure Senator Back after his very comprehensive contribution that I in no way will seek to emasculate him. Given the definition of the word ‘emasculate’, I will not be seeking to do that.

Christopher Back (WA, Liberal Party) Share this | Link to this | Hansard source

I’m relieved to hear that.

Brett Mason (Queensland, Liberal Party, Shadow Minister for Universities and Research) Share this | Link to this | Hansard source

He’s a vet.

Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Link to this | Hansard source

There is only one person here who has successfully emasculated something.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

As Senator Evans points out, there is only one person who has successfully emasculated any creature in this place, and that is Senator Back as a practising and eminent veterinarian.

I indicate that it is important that this legislation is passed at these stages for these reasons. Firstly, this legislation establishes a national vocational education and training regulator to be responsible for registering training organisations, accrediting VET qualifications and courses and establishing performance benchmarks. That is unambiguously a good thing which I think has been acknowledged in part by the opposition, by Senator Mason and by Senator Back. We need to have that level of oversight, of benchmarking, of performance criteria at a national level. The activities of this regulator will include registration, quality assurance, performance reporting, risk assessment and audit and renewal of registration and accreditation. I think it is crucial that we have this national approach because current regulation of the sector is dispersed between the states and territories and this bill is following COAG agreement to establish national standards. I note the remarks in relation to Victoria and Western Australia in terms of not coming on board at this stage. I am sure that has nothing to do, Senator Mason, with the fact that they happen to be coalition governments—

Brett Mason (Queensland, Liberal Party, Shadow Minister for Universities and Research) Share this | Link to this | Hansard source

Just a coincidence.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Just a happy coincidence, Senator Mason. But of course they are entitled to raise concerns and they are entitled to hold out in relation to this. My concern is that the other states that have signed up on this will be missing out on a national scheme which I think is not only good for industry but, most importantly, gives security and some real reassurance to the hundreds of thousands of students who participate in vocational training colleges. It is very important that the consumers, the students, are protected, and this scheme will provide a great deal of protection.

I also note that, in terms of what I believe the minister and the government will be setting out, the key stakeholders, whether it is unions, industry, the Australian Council for Private Education and Training, the Minerals Council of Australia, the Australian Manufacturing Workers Union, the Australian Council of Trade Unions or the Enterprise RTO Association, are reassured that there will be a process in August of this year that brings further amendments. I assume this, and I am sure the minister can confirm it. If that is the case, I think it is important not to hold up this piece of legislation.

This is not a criticism of the coalition, but I note their very considered Education, Employment and Workplace Relations Legislation Committee minority report which was released earlier this month. In that dissenting report, which set out the position of Victoria and Western Australia, coalition senators recommended that the bill not be passed in its current form. They also made a number of recommendations, for instance that the bill be amended to address the concerns identified by the committee and the Scrutiny of Bills Committee and if necessary be followed by a new referral of powers to a state. In particular in recommendation 6 coalition senators recommended that the bill be amended to ensure that the National VET Regulator’s powers are exercised appropriately and with due regard for personal rights and liberties and that the Fair Work Act be investigated as a possible model for exercise of entry, search and seizure powers. That was the recommendation. It sounds like a very considered recommendation. I am not sure whether I necessarily agree with it but I would like to hear the arguments for it. Obviously a lot of consideration was put into that recommendation.

As I understand it, the coalition has not moved any amendments. I do not know whether Senator Mason can confirm that. We are not in the committee stage, but my understanding is that there are not any amendments in relation to this.

Brett Mason (Queensland, Liberal Party, Shadow Minister for Universities and Research) Share this | Link to this | Hansard source

Correct.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I think the coalition will have an opportunity to propose amendments that have not been moved at this stage. Again, this is not criticism of the coalition but there will be an opportunity to move those amendments and for them to be properly considered when this bill comes back in August this year. I think it is important that we have this framework sooner rather than later. It will provide important safeguards and protections for the hundreds of thousands of students that attend vocational training courses in colleges around the country. That is why I think that on balance this is a good piece of legislation, a beneficial piece of legislation, and I look forward to some of the commitments from the minister in relation to this.

Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Link to this | Hansard source

I thank all senators for their contributions—it has actually been a good debate. I appreciate the support around the chamber for the measure, if not for the actual vote on the bills. I point out, particularly to Senator Mason, that there were only two points in his speech which I did not agree with enthusiastically: one where he failed to take responsibility, on behalf of the former Liberal government, for the disarray that occurred in the management of student affairs, which led this government to have to deal with that problem when we came to office in 2007, where successive cabinet submissions by relevant ministers in the former government to act on this problem were ignored. Nevertheless, it was a political defence he put up in defence of his great former leader, Mr Howard, of whom I know he was so fond and proud.

The other point was that after making the case very cogently for the bill, he said, ‘We’re going to vote against it.’ I think this is where the opposition are getting themselves in a bit of strife. They accept the need for a national VET regulator. Their colleagues in the New South Wales parliament—the Liberals and the Nationals, even, in fact, the Greens—all supported these bills. They say, ‘Everyone supports the national VET regulator, but somehow we can’t quite bring ourselves to vote for it.’ Well, that is an issue for them. I do say that the work done by the Standing Committee on Education, Employment and Workplace Relations was positive. I appreciate Senator Back’s contribution, but then again he got to the point of saying, ‘Let’s do nothing, let’s defer it, let’s go back to square 1.’ That is clearly a recipe for inaction.

I remind senators that this is about ensuring ‘brand Australia’ in international education is protected. For too long, people have refused to face the reality of the abuse that was occurring in the international education system in this country. Too many people failed to act. Too many people, both in the former Liberal government and in the Victorian government, were in denial about the problems. But this government has acted to try and address those concerns. I think everyone now accepts that brand Australia is affected every time we have a problem in education in this country. If a small vocational education college with a dubious record falls over, the University of Melbourne, the University of Western Australia and the major TAFEs in this country all pay the price in terms of their marketing of international education and their reputation. This is a very important bill to address those issues. It is part of what we are doing both here and with TEQSA and is totally consistent with what we have done with the ESOS Act. I point out to Senator Xenophon, on the question of powers and the suggestion of using the powers of the Fair Work Act, that the powers in this bill are consistent with those in the ESOS Act, an act we have already endorsed in this parliament.

Before coming to some of the detail I indicate that I am very keen for the Victorian and Western Australian governments to come into this scheme. I have had positive discussions with Minister Collie and with Minister Hall, the new Victorian Minister for Higher Education and Skills. I know there are concerns which effectively go to states’ rights and the management of their own VET systems. I do not, and this government does not, want to manage their VET systems, but we do want to provide quality assurance, we do want to provide national standards and we do want to address this issue of uniform national standards and a quality framework that everyone knows is best for the industry. We have had very strong support from all the major stakeholders. They have had some concerns at the margins, which we have tried to address. They have had some concerns about the consultation process, which I as the new minister have attempted to address. I think people are pretty happy with where we have got to. There are some issues that arose in the committee inquiry and in the Scrutiny of Bills Committee, which I am happy to address, but we need to pass this legislation to get it up and running. The other referring states are ready to go, and I am very anxious to work with WA and Victoria to see if we cannot get them to refer as well. This is not about a Commonwealth grab for power; it is about national standards, quality and our international reputation. I think everyone now accepts the need for that, and these pieces of legislation and the TEQSA bill, which I hope will go through the parliament as well, will give us a framework which builds on what has already been done through the ESOS Act and the good work Bruce Baird has done in taking us to this point.

The parliament has been a little hamstrung by the process of states referring their powers. I understand Senator Hanson-Young’s point, but there is no alternative to that process: we have to get a referral from the state government. We have got that and we are now committed, if you like, to passing the same bill without amendment. We have sought to address the concerns, and I am going to give a series of assurances now to address those concerns. I think senators would generally accept that they will be honoured. We agree, for instance, with the recommendation of the education committee to introduce further legislation to amend clauses 61 and 62 after passage of the bills to avoid any constitutional issues. I think that is a good amendment. We agree to amend the explanatory memorandum and provide an additional addendum to clarify points raised by that committee and the Senate Scrutiny of Bills Committee. I table that amendment to the explanatory memorandum to address those points raised by the two committees. The amendments include additional information about the offences framework; an explanation for the proposed extraterritorial operation of the offences; an explanation about the fee structure in clauses 17 and 232; clarification about the application of common law justice requirements at subclause 36(1)(b) and clause 37; additional clarification about the civil penalties at clauses 60 and 61; clarification about the role of delegation under clauses 224, 225 and 226; additional information about the enforcement powers of authorised officers at clauses 70, 71, 85 and part 5; and clarification about necessary assessments under clauses 103 and 105. We have done everything we can in the additional explanatory memorandum to address the concerns that have been raised. Again, I note that a number of the key players have been happy that we have done that and they have accepted that this is all we can do at the moment, but we have also given further assurances.

I have asked my department to hold a consultation process with stakeholders through April and May this year to pick up on some of the concerns. I think most of the concerns—I do not want to demean them—are at the edges, but they are serious concerns which we need to treat seriously. That process will identify amendments to the National VET Regulator Act, which needs to be passed unamended to keep the referral on foot. But I am happy to bring in amending legislation as early as I can—in August this year—to pick up those concerns without undoing the referral power. Those amendments would include a number of those identified in the Senate committee report, including to more narrowly define the circumstances in which the regulator may make amendments to accredited courses; to clarify beyond doubt that, under clause 62, the person using a cancelled qualification will only commit an offence if they have knowledge of the cancellation; to clarify that the use of force in executing a warrant under clause 70 is to be recorded by video and does not extend to force against a person; and to identify the qualifications level and/or training for appointed authorised officers.

This consultation process will give us the opportunity to seek agreement with stakeholders on the NVR’s approach to risk management in the VET sector and the standards that would apply, noting these standards are endorsed by MCTEE, the ministers council, with the aim of aligning arrangements between the NVR and TEQSA. On the basis of these commitments, I think the concerns that the TAFE directors had have been met. I want to make it clear that we are serious about an engagement on these matters to make sure we get the best possible system in place. I am appreciative of the New South Wales government and the New South Wales parliament passing their referral legislation. The other states, contrary to what Senator Back said, are ready to go and they will look to refer their powers. The bottom line people need to understand is that they do not want to have two forms of regulation, nor do they want to bear the cost of a separate state regulator if we are already doing the job.

So I think we have made good progress on this. It is never easy to coordinate and to get all your ducks in a row to get the states to refer powers, but there has been good cooperation with the states. There is a positive relationship between me and the two ministers from the non-referring states, and I am hopeful that we can overcome their concerns when this legislation is passed. They are both committed to quality education. They both understand the need for us to be able to market ‘Brand Australia’ as being a quality product in international education. I think we are all on the same page. As with my endorsement of Senator Mason’s speech, it sometimes looks as though WA Minister Collier and I have got the same speechwriter, because we fundamentally agree on the approach that needs to be taken. But there is this issue of concern to the states about their own VET providers. All I can say is that we are not interested in taking over their roles or interfering in their management, but a national regulatory and quality framework is essential for the reputation of Australia. It is essential for the protection of students. It is essential for businesses operating across state borders. You have seen the strong support for this from national business organisations. They want a national system. We have got a pretty good framework now. This legislation will allow us to finish the job. I think within a year or so we will have one national VET regulator, because I am sure we have the goodwill between the Commonwealth government and the two non-referring states to get them to a position where we can agree on them participating as well.

I thank senators for their contributions. This was a good debate. I thank those senators who raised concerns for their constructive contributions. I would particularly like to thank Senator Marshall for his leadership on the committee and his speech today. I would appreciate the support of the Senate in passing this legislation and allowing us to get on with the job that was agreed at COAG more than two years ago now.

Question put:

That these bills be now read a second time.