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Wednesday, 23 March 2011
Page: 1544

Senator NASH (10:39 AM) —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.