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Wednesday, 23 March 2011
Page: 1524


Senator LUDWIG (Minister for Agriculture, Fisheries and Forestry and Minister Assisting the Attorney-General on Queensland Floods Recovery) (9:37 AM) —I table the explanatory memorandums relating to these bills and move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows—

Tertiary Education Quality and Standards Agency Bill 2011

This Government is committed to improving the quality and integrity of our higher education system.

In 2008, we initiated a review to examine the ability of our higher education system to meet the needs of the Australian community and economy.

The release of the Review of Australian Higher Education in December 2008 provided a clear direction for change.

The findings of the Review and the recommendations made by the expert panel led by Emeritus Professor Denise Bradley, called for a shift in the current funding and resourcing arrangements for our higher education system and to place students at its centre.

The Bradley Review was the catalyst for the package of reforms, announced by this Government in the 2009-10 Budget, to support our productivity and participation agenda.

The transformation of our higher education system is central to achieving our vision of a stronger and fairer country. Our reforms set new targets for higher education participation and access, along with increased resources for teaching, learning and research.

At the centre of the reforms is the move to a demand-driven approach in which funding for undergraduate student places will be based on student demand.

This is a far-reaching, fundamental economic reform.

It will allow our universities to grow with confidence and diversify in response to student needs.

It will free up universities to make the right strategic choices to better deliver on their unique goals and meet the needs of their student body.

It will encourage diversity and specialisation and will allow universities to play to their strengths.

It will help to transform the scale, potential and quality of our universities and higher education providers, allowing growth in the sector and opening the doors of higher education to a new generation of Australians.

As we enter a period of more rapid growth in enrolments of Australians in higher education, we need to be confident that the quality of the education that students are receiving can be assured.

This Bill establishes the Tertiary Education Quality and Standards Agency, or TEQSA, as a single national regulatory and quality assurance agency for higher education.

Using a standards-based approach to regulation, TEQSA will require institutions to meet or exceed threshold standards in order to be registered to deliver higher education in Australia.

This will ensure that the expansion of our higher education system will not come at the expense of quality.

TEQSA will combine the regulatory activities currently undertaken in the states and territories with the quality assurance activities currently undertaken by the Australian Universities Quality Agency.

It will replace the current state and territory based systems of registration and course accreditation and, in doing so, reduce the number of federal, state and territory regulatory and quality assurance bodies from nine to one.

As Professor Peter Coaldrake recently pointed out, it simply does not make sense for a country of our size in the world in which we operate, to countenance the idea of maintaining nine different regulatory and quality assurance bodies, each attempting to regulate higher education in a parochial way.

I wish to make it clear that the establishment of TEQSA is not about standardising the operations of our higher education providers, or restricting the right to academic freedom which is central to our traditions of higher learning.

The Government is committed to encouraging growth in the higher education sector and recognising the diversity of higher education providers, their curriculum and their methods of delivery.

Furthermore, we recognise the important roles universities have in society and the valuable contributions that they, and other higher education providers, make.

In establishing TEQSA, we have maintained our commitment to ensure that the independence and diversity of universities are preserved.

Universities will continue to operate under the Acts by which they are established.

Their authority to self-accredit courses of study will be automatically transferred to the new regulatory environment upon the establishment of TEQSA. It will also be explicitly recognised in the Provider Standards, which will be a legislative instrument.

I turn now to the specifics of the TEQSA Bill.

TEQSA will undertake a variety of regulatory functions including registration and re-registration, accreditation and re-accreditation and compliance and quality assessments.

TEQSA’s regulatory approach will be based on proportionality and risk.

To support this approach, the Government has established a set of basic principles for regulation to which TEQSA must adhere in all of its functions.

These principles are:

  • the principle of regulatory necessity, which provides that TEQSA should not burden a provider any more than is necessary;
  • the principle of reflecting risk, which provides that TEQSA should have regard to a provider’s history, including its history of compliance with state and federal laws relating to higher education; and
  • the principle of proportionate regulation, which provides that TEQSA must exercise its powers in such a way that is proportionate to a provider’s non-compliance with the Bill and any risk of future non-compliance.

TEQSA will be required to tailor its regulatory actions in order to comply with these principles.

It will work with providers to address quality issues, to improve their performance and to address areas of risk.

TEQSA will focus its activities on encouraging and supporting both new entrants to the system and higher risk providers, while ensuring that existing, higher quality, lower risk providers will not be unnecessarily burdened.

Importantly, TEQSA will have the power to take enforcement action to address quality issues, where it is necessary to do so.

As a statutory agency, TEQSA will be subject to the Financial Management and Accountability Act 1997 and its staff will be engaged under the Public Service Act 1999.

Its governance arrangements will be based on a commission model, led by a Chief Commissioner.

The Chief Commissioner will be supported by four other commissioners—two of whom will be full-time and two part-time.

Consistent with the shared arrangements that exist in higher education, responsibility for TEQSA will be shared by the Minister for Tertiary Education and the Minister for Innovation, Industry, Science and Research, in line with their portfolio responsibilities.

All commissioners will be appointed by the Minister for Tertiary Education in consultation with the Minister for Research.

A key mechanism for consistent regulation will be the set of national standards established by the Bill.

The Higher Education Standards Framework will incorporate national quality standards and benchmarks. These will be central to ensuring that the bar for entry to the higher education sector is sufficiently high and provides a solid basis of performance from which all providers can build excellence and diversity.

The Framework will include the Threshold Standards, which are standards that a provider must meet or exceed in order to be registered by TEQSA.

The Threshold Standards will include the Provider Standards, which are based on the existing National Protocols, and the Qualification Standards, which are based on the Australian Qualifications Framework.

The development of these standards will set out the threshold which all higher education providers must meet in order to deliver higher education in Australia.

They will underpin the regulatory framework of TEQSA and provide appropriate safeguards to ensure students receive a quality education.

The Higher Education Standards Framework will be developed and maintained by the Higher Education Standards Panel. Its functions will be to provide advice and make recommendations to the Minister for Tertiary Education, the Minister for Research and TEQSA on matters relating to the framework.

To ensure the separation of TEQSA’s quality assurance and regulatory functions, the Panel will be independent of TEQSA and will provide advice directly to the Ministers. TEQSA Commissioners will not be eligible to be appointed to the Panel.

The Panel will comprise an appropriate balance of professional knowledge and demonstrated expertise including those in the fields of teaching and learning, research and research training, regulation or standards-setting.

It will work closely with the higher education sector and other interested parties on the development of the framework to ensure it reflects current practices relating to the delivery of higher education and to provide for a culture of continued improvement.

It will be the responsibility of the Minister for Research to make the Research Standards that form part of the Higher Education Standards Framework. The making of all other standards will be the responsibility of the Minister for Tertiary Education.

The Government recognises and understands the important work of the states and territories in the provision of higher education and the Bill reflects this.

The establishment of TEQSA will not affect state or territories’ capacity to establish or disestablish universities. The establishment of new universities will remain the responsibility of state and territory governments and new public universities will continue to require legislation in their jurisdiction to be established.

In performing its functions, TEQSA will be required to consult with the relevant state or territory Minister responsible for tertiary education before taking certain actions against providers who operate in the category which permits the use of the word ‘university’.

These actions include:

  • the assessment of an application for registration made by a provider wishing to operate as a university;
  • the decision to impose a condition on a university’s ability to self-accredit; and
  • the cancellation of a university’s registration.

This will ensure that the close links that exist between the states and territories and the universities under their jurisdiction are preserved.

To ensure that states and territories are engaged in the process of making standards, the Commonwealth Ministers must consult with the appropriate Ministerial Council before making a standard.

TEQSA will be equipped with a broad range of investigative powers and sanctions similar to those found in other regulatory arrangements, including the Education Services for Overseas Students Act 2000.

These powers include administrative sanctions, civil penalties and criminal offences along with appropriate search and monitoring powers.

Where poor quality is identified, TEQSA will intervene with an escalating series of responses in accordance with its principles of regulation. The action TEQSA will take will depend on the risk of the provider and the seriousness of any contravention.

These may range from discussions with the provider to resolve the breach through to imposing conditions or sanctions. The penalty provisions are consistent with the Commonwealth’s policy framework for penalties and offences.

This enforcement regime is important in enabling TEQSA to take real action as required.

TEQSA’s enforcement powers are stronger than those available to existing state regulators and will ensure that TEQSA has a full suite of regulatory tools when dealing with poor performing providers.

A number of stakeholders have also contributed constructively to the design of this Bill to ensure that the regulatory regime is fit for purpose.

Concerns initially expressed by representatives of our higher education sector regarding the proposal to establish a single national regulator have been addressed by the Government through an extensive process of consultation to develop this Bill, the related consequential amendments and transitional provisions Bill and the national standards.

Through the process of working together on the design of TEQSA’s regulatory approach, there has developed a much broader appreciation that improved quality assurance is essential in a new funding environment which will support substantial growth in higher education.

There has also been an increasing understanding that poor quality by anyone in the provision of higher education has the potential to damage everyone.

In this spirit, I would like to record my appreciation for the participation of Universities Australia, the Council of Private Higher Education, TAFE Directors Australia, the Australian Council for Private Education and Training, the National Tertiary Education Union, the Council of Australian Postgraduate Associations and the National Union of Students in contributing to the development of the legislation and associated standards.

I would also like to take this opportunity to thank Professor Denise Bradley, the Interim Chair of TEQSA, and Mr Ian Hawke, the Interim Chief Executive Officer of TEQSA, for the leadership they have provided in their roles.

Professor Bradley, particularly, has been a key contact for the sector and a source of independent advice for this Government on the development of TEQSA and its approach to quality assurance.

The introduction of a national approach to regulation will strengthen and streamline current practices to provide for greater national consistency and improved quality across the sector.

It reflects this Government’s commitment to creating a system which is diverse, innovative and responsive to the needs of students.

TEQSA will enhance the overall quality of our higher education system and ensure that the next generation of scholars receives a quality education.


Tertiary Education Quality and Standards Agency (Consequential Amendments and Transitional Provisions) Bill 2011

This Bill contains consequential amendments and transitional provisions which are required to give effect to the Government’s intention to establish the Tertiary Education Quality and Standards Agency, TEQSA.

The Bill contains a number of amendments to existing Acts that are required to ensure that the new regulatory framework interacts properly with other regulatory frameworks and funding programs.

Consequential amendments to the Education Services for Overseas Students Act 2000 provide for TEQSA and its staff to undertake the functions relating to provider registration currently undertaken by the states and territories and for the delegation of functions currently undertaken by the Department of Education, Employment and Workplace Relations.

This includes making TEQSA the designated authority under the Education Services for Overseas Students Act for providers registered to deliver higher education courses to overseas students.

Amendments to the Higher Education Support Act 2003 recognise that the TEQSA legislation, once enacted, will establish new registration requirements for higher education providers and that TEQSA will administer those requirements.

The Bill also provides for the Minister for Tertiary Education to make the first set of Threshold Standards which are part of the Higher Education Standards Framework.

These standards will be based on the existing National Protocols for Higher Education and the Australian Qualifications Framework. They are currently the subject of an extensive process of consultation with the higher education sector.

The Bill requires that the Higher Education Standards Panel must initiate a review of the first set of Threshold Standards within the first year of the Panel commencing operation.

These provisions balance the need to provide regulatory certainty for providers by establishing standards based on the current requirements shortly after the TEQSA legislation comes into force, while ensuring that there will be timely expert review of these important instruments.

The transitional provisions of this Bill ensure that where a provider was registered under state or territory law, it will be automatically registered under the TEQSA legislation including, where applicable, the authority to self-accredit courses.

Similarly, courses which are currently accredited by a Government Accreditation Authority will also be automatically accredited under TEQSA.

Where a provider’s application for re-registration or course re-accreditation is pending, TEQSA will determine the outcome of their application.

Provisions have also been made to allow the sharing of information and transfer of copies of records from the states and territories to TEQSA.

This will ensure that regulatory activities are not interrupted during this transition period.

Amendments have also been made to ensure the continuity of quality assurance activities undertaken by the Australian Universities Quality Agency are transitioned to TEQSA.

In conjunction with the Tertiary Education Quality and Standards Agency Bill 2011, this Bill reflects the Government’s continued commitment to improving the quality of our higher education system and to provide for greater national consistency of regulation.


Product Stewardship Bill 2011

The Product Stewardship Bill 2011 implements a cornerstone commitment of the National Waste Policy, which heralded a new, coherent, efficient and environmentally responsible approach to waste management in Australia. The Policy, which was endorsed by the Council of Australian Governments in 2010, committed to establishing a national framework, underpinned by Commonwealth legislation, to support voluntary, co-regulatory and mandatory product stewardship schemes. Product stewardship involves shared responsibility for reducing the environmental, health and safety impacts of manufactured goods and materials across the life of a product.

  Waste in Australia is growing. In the four years to 2007, the amount of waste generated grew by nearly a third to around 44 million tonnes, which is the equivalent of over 2000 kilograms for each Australian each year. Over the same period, the amount of hazardous waste doubled. Even if the current recycling level of about 52 per cent is maintained, this trend could result in an almost threefold increase in the waste generated over the coming decade.

The nature of waste is also changing. The waste stream today is markedly different from 50 years ago when motor vehicles, refrigerators and televisions were less common, and home computers, mobile phones and compact fluorescent lamps did not exist. Today’s goods are increasingly complex, and not only contain materials that can be re-used but also contain hazardous substances. As a result of their increasingly short product life, these goods now comprise a significant and growing component of the waste stream. At end of life these products are placing a disproportionate burden on the general community rather than on those who use them or benefit from their use. Sharing responsibility is central to product stewardship.

Australia—as a responsible global citizen—is party to a number of international conventions, including the Basel Convention and the Stockholm Convention, which seek to reduce and manage waste and hazardous substances, including those substances that are persistent in the environment, toxic and accumulate along the food chain. Product stewardship can play a part as one of the means by which to achieve these goals. 

These international obligations do not remain static. Under the Stockholm Convention, some flame retardant chemicals present in many products are to be restricted or banned. There is also emerging global agreement on directions to reduce mercury emissions.

Mercury is present in many products. It is also harmful in minute amounts and long term, daily exposure above 25 millionths of a gram per cubic metre is considered unsafe. To place in context the importance of responsible end of life management of products—over 50 million lamps containing mercury, in particular street lights and commercial lighting, were imported to Australia in 2008 and these contained approximately 600 kilograms of mercury. 

The Commonwealth is responsible for ensuring that Australia’s international obligations are met and the states and territories have the primary role in the management of waste under the Australian Constitution. This has led to a long history of collaboration by all Australian governments, anchored in the 1992 National Strategy for Ecologically Sustainable Development. This was the first comprehensive domestic approach to waste and committed all Australian governments to improving the use of resources, reducing the impact of waste on the environment and improving the management of hazardous wastes.

The waste sector has also evolved to cover re-use, recovery, treatment and disposal of waste, and increasingly manages waste as a resource. This creates opportunities. Today the waste and recycling sector is valued at between $7 million and $11 million and employs a direct labour force of around 30,000.

The Regulation Impact Statement for the National Waste Policy estimated the savings from a national product stewardship approach to be $147 million over 20 years. The Regulation Impact Statement also identified the additional costs of jurisdictions implementing up to five separate product stewardship programs could be up to $212 million. 

Product stewardship schemes are in place in many other parts of the world, including in North America, Europe and Asia. Electrical equipment, tyres, mercury lamps, batteries, packaging, chemical products and even cars are covered by such arrangements. 

Australia has adopted many individual approaches to product stewardship. The Commonwealth’s Product Stewardship (Oil) Act 2000 covers lubricating oils and its Ozone and Synthetic Greenhouse Gas Management Act 1989 covers the management of ozone depleting substances and synthetic greenhouse gases. South Australia introduced a mandatory deposit-refund scheme on drink containers in 1977 and the Northern Territory has recently passed similar legislation. New South Wales, Victoria and Western Australia also have legislation that can require product stewardship schemes. Used packaging stewardship is covered by a National Environment Protection Measure that has been enacted differently in each jurisdiction since 1998.

 A complex mix of rules and regulations applies to products and materials that are sold nationally by companies operating Australia-wide. A single piece of legislation that allows for the consistent regulation of products and materials provides a more effective mechanism than an array of individual product legislation at both Commonwealth and state levels.

There is no doubt that many companies wish to do the right thing and are already involved in voluntary product stewardship schemes. Some of these schemes are familiar. DrumMuster recycles used agricultural and veterinary chemical containers and has reformulated products to reduce packaging and waste. Planet Ark takes back printer cartridges, MobileMuster deals with mobile phones, and more recently Fluorocycle started recycling mercury from commercial lighting.

The states and territories, local government, industry, business associations, the retail sector, environmental groups and the community actively support the National Waste Policy, and a national approach to product stewardship. Extensive consultation has been undertaken over the past two years, with strong levels of participation. To date over 1000 people have attended some 80 public and bilateral meetings, and there have been around 320 public submissions.

This Bill efficiently addresses the need for a simple enduring national approach to product stewardship through a single piece of framework legislation. Three types of product stewardship arrangements will be catered for. Industries and products may be regulated through either a co-regulatory or mandatory approach and voluntary product stewardship schemes can be accredited. 

This framework will allow for different products and materials to be covered over time as needs emerge, and for the arrangements to be tailored to suit different circumstances in a changing international, social, environmental and economic context. Importantly there is also a comprehensive suite of checks and balances built into the framework to ensure it is appropriate and transparent.

This Bill sets the framework under which products and materials can be regulated and the obligations placed on various parties. It sets out the governance arrangements, the powers of the regulator, and the reporting and audit requirements for organisations delivering product stewardship schemes. It provides the offences and penalties together with the compliance and enforcement powers.

For a product to be covered it must further the objects of the legislation, which are an expression of the aims and principles of the National Waste Policy and its product stewardship strategy. The product must also satisfy two or more specified criteria, such as whether the product is in a national market.

As each product, material and industry is unique, the regulations will set out the details of what is to be regulated and the actions to be taken. The actions required in the regulations may include the need to avoid, reduce or eliminate waste from products. There may be a requirement to reduce hazardous substances or to manage the waste as a resource. Importantly there may be the obligation to ensure that products or waste from products is reused, recycled, recovered, treated or disposed of in a safe, scientific and environmentally sound way.

The intent of the voluntary element is to encourage product stewardship without the need for regulation and provide the community with more certainty, through the use of a logo, that accredited schemes are actually achieving what they claim. In particular, product stewardship organisations that are accredited will meet specific reporting and audit requirements which will provide for both transparency and accountability.

Co-regulatory product stewardship schemes will be delivered by industry with only outcomes and basic operational requirements specified in regulation. A company will not be able to benefit from refusing to participate so there will be no free riders. Thresholds may be applied to avoid impacts on small business.

Mandatory product stewardship would set obligations for parties to take certain actions in relation to a product. The Bill provides a comprehensive set of product stewardship requirements that can be drawn upon for that purpose. These include the ability to require labelling, to require producers to take products back at end of life for recycling, or to require a deposit and refund be applied to a product. These requirements are based on those already in use, such as those in the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989.

There will be a rigorous, transparent assessment and consultation process before a decision to make regulations on a product. This will follow the Australian Government’s regulatory impact analysis requirements.

Through the Environment, Protection and Heritage Council, all governments have agreed that a national television and computer product stewardship scheme should be the first to be regulated under this product stewardship framework legislation.

The Decision Regulation Impact Statement, published in 2009, showed that a national television and computer product stewardship scheme would provide a net benefit to society in the range of $517 million to $742 million over the period 2008-09 to 2030-31.

Industry, jurisdictions and the community have sought national regulation for end of life televisions and computers for more than a decade. Around 32 million new television and computer products were sold in Australia in 2008 with an estimated 16.8 million units reaching end of life in the same year.  Only 10 per cent are recycled, well below the average rate of recycling for all waste of 52 per cent. The volume of television and computer products reaching end of life is expected to grow to 44 million per year by 2028. This electronic waste is classified as hazardous waste under the Basel Convention.

The decision by all governments and industry to deliver this scheme is an important step towards sustainable management of electronic waste in Australia.

This Product Stewardship Bill 2011 demonstrates the willingness of business, community and government to share responsibility for reducing the environmental impacts of products throughout their lives and will make a major contribution to a more sustainable Australia.

Ordered that further consideration of the second reading of these bills be adjourned to the first sitting day of the next period of sittings, in accordance with standing order 111.

Ordered that the Tertiary Education Quality and Standards Agency Bill 2011 and the Tertiary Education Quality and Standards Agency (Consequential Amendments and Transitional Provisions) Bill 2011 be listed on the Notice Paper as one order of the day, and the remaining bill be listed as a separate order of the day.