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Wednesday, 23 March 2011
Page: 1561


Senator BACK (11:57 AM) —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.