Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Hansard source

I rise to support the Tertiary Education Quality and Standards Agency Amendment Bill 2014 which I did not expect to do when the bill was introduced in February. The bill was introduced without notice and without prior consultation with stakeholders but since then the bill has been the subject of an inquiry by the Senate Education and Employment Legislation Committee. The committee recommended that the bill be passed but Labor senators submitted a minority report that proposed amendments, which I am pleased to see have changed the government's attitude to its own bill.

At the time I was attacked for referring the bill. We now find that the government has accepted all of the amendments that the Labor Party proposed. The Minister for Education described my referral of this bill as a spectacular backflip. He argued that the purpose of the bill was to implement the recommendations of the Review of higher education regulation 2013 report by Professors Valerie Braithwaite and Kwong Lee Dow, which Labor commissioned when in office. I was very keen to have that report published, even though the department was somewhat reluctant to have it published. But we can ask the question: who has actually backflipped now? All of the concerns raised by Labor senators in the report have been addressed in the government's amendments, which are, as I have said, subject to that report. So as backflips go the minister's reversal on this bill is about as spectacular as the claims that he has been making about other people.

The claim that the bill intended to implement the Braithwaite and Kwong Lee Dow recommendations was maintained by the government throughout the inquiry. It was impossible, however, to consider the consequences of the bill as originally conceived other than in the context of the proposed changes to higher education that were announced in the budget.

The Tertiary Education Quality and Standards Agency, TEQSA, is the regulator of Australia's higher education system. It assesses and registers new institutions in the system and conducts quality audits of existing institutions. TEQSA's operations are already constrained by this government's removal of 40 per cent of its funding. At a time when the government wants to open up higher education to new private providers and at a time when the government is proposing that universities can charge what they like for a university degree, TEQSA would be required, if the government amendments were true to form, to undertake considerably more with much less.

That depleted state would have been made even worse as the original form of the bill sought to deprive TEQSA of powers that it actually needed to do the job. As the minority report notes, the unamended bill would have altered TEQSA's structure and purpose in fundamental ways. It would have substantially diminished the agency's quality assessment role, other than in assessing institutions against threshold standards—as it was put, those concerned with provider registration and course accreditation in the Higher Education Standards Framework.

The bill also increased the minister's power to issue directives to TEQSA, gave the minister the power to reduce the number of TEQSA commissioners and allowed greater delegation of authority to the senior staff. I was concerned with the way the bill was originally worded as it may well have allowed for delegation to personnel outside of the agency. All those proposed changes raised disturbing questions about the government's intention, which of course we never got straight answers on in the inquiry.

The number of staff TEQSA employs is about 88. Under these government proposals that is to be reduced to 66. The consequences of that sort of reduction when it comes to the issue of quality assurance I think are quite serious. On the issue of quality assessment itself, the bill would have repealed section 60 of the act that gives TEQSA the power to assess institutions, or the sector more broadly, against non-threshold standards. Such things here would include learning and teaching standards, research standards and information standards.

The minister sought to justify the change by arguing that it would streamline TEQSA's operations by focusing them on provider registration and course accreditation as core functions. This was in spite of the fact that section 60 only states that TEQSA 'may review any aspect of an entity's operation'. The act as it is currently written does not require TEQSA to conduct comprehensive quality assessments of all institutions beyond the threshold level. Because of that, and because TEQSA has already begun to move beyond the one-size-fits-all approach that characterised earlier operations, it is not obvious why the section needed to be repealed.

The dangers of restricting the scope of TEQSA's operation, however, are abundantly clear. The National Tertiary Education Union stated in its submission to the inquiry:

… the push to reduce regulatory burden … is being conflated with deregulation—and in doing so, removing an entire government mechanism that addresses quality in the sector.

The need for such a mechanism should be obvious. TEQSA plays a crucial role in the reputation of a higher education provider. The damage caused by fly-by-night operators in recent years was a great threat to the reputation of Australian higher education, and that is the reason why TEQSA was actually established by Labor in office.

Senators may remember the saga of Greenwich University, the scam degree factory operating out of Norfolk Island which followed the laissez-faire approach, the dog-eat-dog approach, that developed under the former Howard government. That sort of policy is reminiscent of the sorts of attitudes we are seeing under this government. So TEQSA was established to clamp down on those types of operators, which were doing such profound damage to this nation's international reputation. These examples were not isolated and without a regulator, without appropriate powers, such dodgy operators may in fact be able to infect the system again. That is why it is so important to have a strong regulator to ensure quality.

If you look at the example of what has happened in VET in Victoria, the danger is clear. In that state traditional TAFE colleges have been struggling to compete with a flood of new providers, many of which have been briefly pursuing somewhat fashionable lifestyle courses. They have been able to extract quite substantial revenues but at great cost to the students that they enrol. It does not take a leap of imagination to envisage a similar outcome in the higher education sector if the regulator were to be permanently crippled.

TEQSA's ability to fulfil its quality assurance role was also undermined in the original bill by a provision allowing the agency to extend registration periods beyond seven years. As the RMIT argued in its submission to the inquiry, the provision would have 'presented a real risk in ensuring consistency in the approach to and assessment of a provider's ability to meet the higher education framework'. This provision, together with the repeal of section 60 of the act, reasonably prompted some suspicions about the government's motive in introducing the legislation. The conclusion that it actually wanted to weaken the regulator to facilitate the entry of new providers to the market was a very difficult one to avoid.

The question of ministerial directives for quality assessment is extremely important. Quality assessment is an area where I do not think the government had thought through the implications. The unamended bill increased ministerial powers to issue directions to TEQSA in relation to 'the performance of its functions and the exercise of its powers'. That raised the possibility in my mind of the politicisation of TEQSA's decisions by ministerial direction.

The minister's power of direction was not, in the original bill, a disallowable instrument. The minister had given some rather blithe assurances that nothing sinister was intended by the change. It may well be that the minister is well intentioned. This minister may well be. I will concede there is that possibility—I do it quietly and quickly. But, nonetheless, you cannot assume that all ministers would have that level of integrity. You cannot possibly suggest that we know what a minister in the future could do with such unfettered powers unless they were disallowable. The whole point of a disallowable instrument is to provide accountability, a very important principle which this Senate guards jealously. We have the immortal words of Mandy Rice-Davies, who said, 'He would, wouldn't he?' when the assertion was made that he would never do such a thing.

The point, of course, is not whether the minister did in fact intend to interfere in TEQSA's operations for political purposes. The point is rather that the change would have allowed him or any subsequent minister to interfere on political grounds should they choose to do so. That is why I have been so insistent on having this matter a disallowable instrument.

Yet another ill thought through change in the original bill allowed TEQSA to delegate its functions to 'persons who hold an office or appointment under a law of the Commonwealth'. A pretty amazing set of drafting, that! That clearly had to be clarified, because we know that 'any Commonwealth officer' is a very broad remit. It could well have been portrayed as an innocuous change allowing the agency to resolve temporary staffing problems but would have most unintended consequences. The power of delegation was so broad that it raised the possibility of the blurring of roles that should never be blurred when it comes to the question of regulation. A seconded immigration officer, for instance, might bring concerns to the process of assessment which should properly be the work of TEQSA.

The bill also sought to reduce the number of TEQSA's commissioners and to separate the roles of chief commissioner and chief executive. These changes supposedly sought to adopt a more corporate model of governance that would allow greater administrative efficiency. In business operations, however, the CEO is appointed by a board, whereas under the original form of the TEQSA the CEO would have been appointed by the minister. Coupled with the minister's increased powers to issue directions to the agencies, this prerogative appointment raised the spectre of politicisation again. Further, the number of commissioners would be reduced not by attrition but by the spilling of all existing positions. The sacking of a board by legislation would have set a disturbing precedent, with implications beyond the regulation of higher education. It could, for example, have raised the prospect that all the human rights commissioners could be dismissed in the same way if such a precedent were allowed to go unchallenged, or perhaps the Fair Work Australia commissioners.

Labor's amendments, taken together, change these TEQSA proposals in the original bill, which would have resulted in an agency with fewer powers at a time when greater vigilance is actually needed, and in an agency potentially subject to political direction. Those changes needed to be prevented because of a potential for political intervention in the regulation of our higher education scheme. For that reason, Labor proposed amendments to the bill: that TEQSA's discretionary power to conduct assessments of non-threshold standards should not be removed; that an upper limit should be placed on TEQSA's ability to extend registration periods; that the number of commissioners, their role, their relationship with the CEO and the grounds on which they may be dismissed should be clearly identified; and that the minister's power to issue directions to TEQSA should become a disallowable instrument.

Some comment has been made about the relationship between the government and some commissioners. I take the view that it is important, particularly when a new government is established, that senior officers do enjoy the confidence of the minister. I take the view, however, that the political dismissal of boards is not appropriate—there are other ways in which relationships of those types can be resolved. I do not take a simplistic notion, however, that, if the minister has lost confidence in a senior officer, there cannot be things done to resolve that matter. I do not make any suggestion that I would agree in advance to any proposition, but I do think as a general principle it is important for the minister to have confidence in senior officials with whom he is working. That, of course, is all consistent with the principles of merit protection within the Australian Public Service.

However, since this bill was first introduced, I think the minister has made appropriate adjustments consistent with the principles that I have argued here today. The government's amendments ensure that TEQSA's quality assurance function will be maintained; ministerial directives to TEQSA will now be a disallowable matter; the provisions regarding the sacking of commissioners will be removed; and the delegation of powers by TEQSA's commissioners will not only be made within TEQSA itself. Labor welcomes the government's commitment to amend the bill consistent with these principles.

The amended bill is a much more reasonable piece of legislation. It safeguards the reputation of TEQSA and, through it, the reputation of Australia's higher education sector. The international and domestic reputation of the universities and other providers deserves absolutely nothing less. There has recently been some discussion concerning plagiarism, particularly with the operations of a website which has been subcontracting out the writing of essays for students to be used for assessment. I have made some comments about that—I have raised the matter at Senate estimates—and I understand the government has now taken some steps to ensure that these questions are attended to. But that is an example precisely of why you need a strong regulator. We have circumstances here where people have committed fraud—and I believe, prima facie, there is a case of fraud. If that can be demonstrated, there may well be criminal sanctions required. In the first instance, the universities have to take responsibility to ensure quality within their institutions, but there must be a strong monitoring body with real power—real teeth—and it has to be able to protect our reputation as a nation. I recall that during the previous Liberal government Minister Nelson made the observation that, when it is all said and done, our education industry, and our international education industry in particular, is all about reputation. It is all about people's perceptions of Australia being a quality provider of quality qualifications with real integrity.

We need to ensure that there is a regulator there to guarantee that proposition. The problem, of course, with crooks in the education field is that it is a bit like tax avoidance—you can never rest. You can never, ever assume that a set-and-forget policy is going to be satisfactory. That is why this amended bill vindicates the approach taken through the Senate committee process; it vindicates that it is appropriate that there be proper discussion with the government about such matters. Although the government initially resisted the inquiry and suggested we should adopt a 'tick and flick' operation, we demonstrated just how important these processes are. Of course, I am delighted that the government now has completely abandoned its former position. So I take this opportunity—it does not happen very often—to congratulate this minister for his change of heart and for his recognition that he was wrong. I stress how important it is for him to recognise his responsibility to protect the integrity of Australian higher education. I am so pleased to be able to offer Labor's support to this amended bill.