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Monday, 31 October 2011
Page: 12194

Mr GARRETT (Kingsford SmithMinister for School Education, Early Childhood and Youth) (16:00): I present the explanatory memorandum for this bill and move:

That this bill be now read a second time.

24 March 2011 marked an important day for Australia's vocational education and training, VET, sector. This was the day the National Vocational Education and Training Regulator Act 2011 was passed by this parliament and one of the most significant reforms to the VET sector in years became a reality.

That act clearly demonstrated this government's commitment to improving the quality and consistency of training in the VET sector, both at home and internationally. The act established the National VET Regulator and the Australian Skills Quality Authority, ASQA, commenced operations on 1 July 2011. I acknowledge that this key reform could not have been achieved without the considerable support and cooperation over a long period between the Commonwealth and most states and territories, as well as stakeholders across the sector.

But I have to say, ASQA does not have an easy job ahead of it and there are many significant challenges in the sector that ASQA needs to work through. Since 1 July, ASQA has had responsibility for all registered training organisations, RTOs, in New South Wales, the Northern Territory and the Australian Capital Territory. It also assumed responsibility for RTOs in Victoria and Western Australia that also operate in referring states and territories, or offer services to international students. This accounts for around 2,000 RTOs and this figure is expected to double over the coming year as Queensland, South Australian and Tasmanian governments enact their legislation referring powers to the Commonwealth.

On commencement, ASQA took over a high volume of work with some 642 outstanding applications being transferred from state and territory regulators. ASQA has begun its operations with a robust, but risk based, approach to regulation. With its new suite of regulatory tools to address non-compliance issues, it is steadily working through its significant workload to ensure that training providers either improve or exit the system.

When the National VET Regulator legislation was before the Senate on 23 March 2011, Senator Evans acknowledged that while the government received very strong support from all the major stakeholders, they raised some legitimate concerns. There were also some issues raised in the reports of the Senate Standing Committee on Education, Employment and Workplace Relations inquiry into the bill and in the Scrutiny of Bills Committee. Some of these concerns were able to be addressed at the time through amendment of the explanatory memorandum. Others could not be addressed due to the legislative process of states referring their powers. Senator Evans did, however, ask the Department of Education, Employment and Workplace Relations to hold a consultation process with stakeholders to consider these concerns and to allow amending legislation to be introduced as early as possible to address them, without disrupting the referral process.

The department has undertaken an extended consultation process with stakeholders, including state and territory government officials. This consultation included two face-to-face meetings; one in Canberra on 20 and 21 April and a second one in Sydney on 9 and 10 August. At the April consultations those sections of the act which had been identified as needing reworking were discussed in some detail. The second consultations in August involved consideration of an exposure draft of the amending bill, on a confidential basis, to explain in detail the changes that are being proposed in response to concerns and suggestions of the stakeholders.

These consultation processes also provided an opportunity to reflect on the advice provided by the two Senate Standing Committees: the Scrutiny of Bills Committee and the Senate Education, Employment and Workplace Relations Committee. I thank these committees for their work and considerations on this important government reform. I am happy to say that through this extensive consultative process, stakeholders have generally expressed their agreement to the measure in the amending bill that I am introducing today. This is an excellent outcome for all concerned—but most importantly, it is further confirmation of the widespread support for the reforms we are making to the VET sector and the commitment of all to ensuring that Australia has a strong VET sector known for its high quality.

Before moving on to explain the detail of the measures in the bill I am introducing today, I would like to again encourage the Victorian and Western Australian governments to join the national regulatory system for the VET sector. Although I know they have some concerns about states' rights issues, I am also confident that they are keen to see improvements in the quality of the VET sector. The National VET Regulator Act provides ASQA with a more robust set of powers than is currently available to state regulators. Feedback from stakeholders is that they welcome the concept of a truly national and consistently applied regulatory system. I trust that we can continue to work cooperatively toward that end.

I will now address the specific measures in the bill.


Throughout the consultations, and in submissions to the Senate standing committee inquiry, stakeholders expressed the view that an objects clause would contextualise the act and give the sector an indication of its purpose. I am pleased to say that following constructive discussions with stakeholders and states and territories, the government has built a consensus around negotiated objects, and these will be reflected in a new section 2A objects clause in the National VET Regulator Act. The objects would be as follows:

to provide for national consistency in the regulation of VET

to regulate VET using a standards based quality framework and, when appropriate in the circumstances, risk assessments

to protect and enhance VET quality, flexibility and innovation and Australia's reputation for VET both within Australia and internationally

to provide a regulatory framework to encourage and promote a VET system that is appropriate to meet Australia's social and economic needs for a highly educated and skilled population

to protect students undertaking, or proposing to undertake, Australian VET by ensuring the provision of quality VET

to facilitate people being able to have access to accurate information relating to the quality of VET.

The objects clause will also include two notes defining the standards based quality framework and also that the objects are subject to the constitutional basis of the act.

The government, and stakeholders, consider these objects focus appropriately on the goals for a national regulatory and quality framework that is essential for retaining Australia's reputation, that is essential for the protection of students and that is essential for businesses operating across state borders.

State/ t erritory l aws

This bill also amends section 9 of the act, which deals with the registered training organisations being immune from certain state and territory laws. The amendment clarifies that the intent of the main act is that it applies in the same way in referring and non-referring states in relation to the act's interaction with their state laws.

The bill also introduces a new subsection at 9(3) which provides a new mechanism to allow for laws in non-referring states to be specifically excluded with the agreement of the ministerial council. Commonwealth representatives have negotiated tirelessly and constructively with our state counterparts to draft a provision which all governments are comfortable with.

Amending accredited courses

The amending bill clarifies the circumstances when the national VET regulator can amend a VET accredited course without an application being made by the course owner. This amendment to subsection 51(2)(a) narrows the power currently provided in the National VET Regulator Act. Concern that the existing power was too broad was raised by both the Senate Standing Committee for the Scrutiny of Bills and stakeholders. The proposed amendment restricts the circumstances when the regulator can amend accredited courses to situations where the amendment:

updates the course

corrects false or misleading information in the course

is requested by a licensing or other industry body that has an interest in the course.

This power is important to ensure that the robustness of the VET quality framework can be maintained and that courses can be updated in response to changing circumstances or requests from industry.

Cancelled qualification

The National VET Regulator Act provides for a civil penalty where a person purports to hold a VET qualification or statement of attainment that has been cancelled. The act also requires a person to be notified of a cancellation and given a reasonable opportunity to return the cancelled qualification.

Both Senate standing committees raised concerns about this process and were concerned to ensure that a person is aware of, or could reasonably be expected to be aware of, the cancellation of the qualification or statement of attainment before being liable for a civil penalty. The amending bill therefore includes provisions to ensure this is clarified.

Minor changes are also proposed to sections 58, 59 and 60 to clarify details around the period within which a cancelled qualification must be returned, taking into account the method of notification and whether the person affected seeks a review of the decision to cancel the qualification.

The power to cancel a qualification is an important regulatory tool to allow the regulator to ensure the quality of VET in Australia. It helps to ensure that there are not uncertified people purporting to be properly trained and thereby bringing discredit to their industry. The amendments in the bill ensure that the process in respect of informing a person of a cancelled qualification is as fair and transparent as possible.

Use of force

The Scrutiny of Bills Committee, and some stakeholders, raised some concerns about the use of force provisions in the National VET Regulator Act. The act specifies that an authorised officer may use force against a 'thing'—for example, to move or open a filing cabinet—when executing a warrant. The government is proposing to amend section 70 of the act to include limits on the use of force. Under the proposed amendments, the person in charge of the 'thing' in question must be given a reasonable opportunity to move or open it themselves, prior to any force being used. The amending bill also clarifies that the section does not authorise use of force against people.

These amendments are consistent with the recommendation of the Scrutiny of Bills Committee in that they reflect the approach taken in other Commonwealth acts such as subsection 3U(d) of the Crimes Act 1914. In his speech to the Senate on 23 March, Senator Evans indicated that the relevant provisions in the act would also be amended to include the recording by video of situations where force is used in executing a warrant. This option was also raised by the Scrutiny of Bills Committee. However, on further investigation by the department, it was found that the use of video recording in such circumstances is not mandated by any other piece of Commonwealth legislation. Given this, the government did not feel it appropriate to place this requirement on the national VET regulator at this time. This, of course, does not prohibit authorised officers under the act from using video recording equipment if the regulator believes it is appropriate in certain cases.

Authorised officers

The Scrutiny of Bills Committee also raised concerns around the wide discretion that the regulator had to appoint authorised officers and that authorised officers be appropriately qualified and trained. The proposed amendment seeks to amend the act to enable the minister to make a determination about required experience, training and qualifications (if any) for authorised officers appointed by the regulator under section 89 of the act.

Sharing information with the Tertiary Education Quality Standards Agency

In order to ensure a consistent approach to tertiary education regulation, particularly as greater numbers of providers operate in both the higher education and VET sectors, an amendment is proposed to facilitate information sharing with the Tertiary Education Quality Standards Agency, the higher education regulator. Not only will this facilitate information sharing; it will also help to reduce the regulatory burden on dual-sector providers.


Stakeholders also suggested that, for ease of reading, some headings should be changed to better reflect what particular sections deal with. The government is always happy to work with the sector to ensure the act is user friendly and clear for RTOs, trainers and students. We are therefore seeking minor amendments to the headings of sections 107, 108, 109 and 110. This amending bill reflects the government's continued commitment to working with governments and stakeholders to continually improve the quality and consistency of training across the VET sector. A strong, nationally consistent regulatory framework is a key step in achieving this. I commend the bill to the House.

Leave granted for second reading debate to continue immediately.