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Employment, Workplace Relations, Small Business and Education Legislation Committee
06/05/99
DEPARTMENT OF EDUCATION, TRAINING AND YOUTH AFFAIRS
Program 2—Higher education
Subprogram 2.1—Higher education system

Senator CARR —I want to begin with a question on Norfolk Island, which I have no doubt you will not be surprised to hear I have a particular interest in. Is the legal branch still here? Ms Emery is not here, though, is she?

Mr Grant —No, she is not, Senator.

Senator CARR —Mr Kriz, this is a hell of a question to be involved in first up.

Mr Kriz —No problems.

Senator CARR —That is the nature of your job, I suspect. Mr Kriz, are you familiar with the advice that was tendered to the committee by Ms Emery at the last hearings regarding the powers of the Administrator on Norfolk Island and the implications of section 22 of the Norfolk Island Act, particularly as they relate to the capacity of the Governor-General of Australia to withhold consent? Are you familiar with that?

Mr Kriz —Yes, I am.

Senator CARR —Are you satisfied with the advice given at the last meeting by Ms Emery?

Mr Kriz —Which aspect?

Senator CARR —When I asked a question about the reserve powers of the Australian Governor-General, I was advised by Ms Emery—and I am paraphrasing—that there were no reserve powers of the Australian Governor-General in regard to the Norfolk Island legislation and the university of Norfolk Island.

Mr Kriz —Yes, I am. In this sense they are strictly reserve powers, and legal parlance refers to powers which are not statutory powers. The powers which the Governor-General has in this regard are powers that are given to him under the act under which the Norfolk Island legislature operates.

Senator CARR —What about the Australian Constitution? Does that override powers that might be enacted by the Legislative Assembly of the Norfolk Island?

Mr Kriz —This place has the power to change any laws.

Senator CARR —Sorry?


Mr Kriz —Parliament has the ability to change any laws which it gives to its external territories, but I do not think I am the appropriate person to give you legal advice on these issues.

Senator CARR —You are not? Well, who is?

Mr Kriz —No. I give legal advice to the minister and to the department, not to the—

Senator CARR —Estimates committee?

Mr Kriz —Estimates committee.

Senator CARR —Who in the legal branch is able to answer questions?

Mr Kriz —Nobody really.

Senator CARR —Nobody?

Mr Kriz —They are all able to answer questions, but it is not our function to give legal advice to the committee.

Senator CARR —Perhaps Mr Grant can assist me. I am sure he would be delighted to do so.

Mr Grant —Senator, I think we have had this discussion before at least in terms of the principle. It would be helpful if we could have an indication of your specific questions. To the extent that they go to matters of fact, we will be happy to deal with them. To the extent that they go to matters of advice, particularly of a legal nature, as Mr Kriz has said, we do not see it as our role to have the department's legal advisers providing legal advice to the Senate committee.

CHAIR —Minister, is it appropriate for officers to comment on Australian constitutional law? Is it within the ambit of this committee or the expertise of officers?

Senator Ellison —It is not normal for officers to give legal advice in the form of answers. Under the standing orders of the Senate, that is not allowed either. If Senator Carr wanted to, he could approach the Attorney-General's Department. They might be willing to—

Senator CARR —I am sure they would, Minister.

Senator Ellison —That is, after all, the appropriate area to seek any advice if it is possible to obtain that—but certainly not from officers here today.

CHAIR —Perhaps, Senator, you should pursue specific questions on Australian constitutional law through more appropriate channels.

Senator CARR —I am actually pursuing the advice which was given to me by Ms Emery at the last hearing of this estimates committee.

Senator Ellison —Can you refer us to that passage?

Senator CARR —Yes. I ask you to look at the Hansard page 184. I say to you that questions on this matter are right on the money in terms of the standing orders.

Senator Ellison —All Ms Emery said was that she did not have a copy of the legislation in front of her.

Senator CARR —Is that what she said? I said:

So you are saying that there is no reserve power for the Australian Governor[hyphen]General in regard to this matter.

Ms Emery responded:

That is my understanding.

Senator Ellison —She was not actually advising you on the situation.

Senator CARR —No, she was not. She was nonetheless—

Senator Ellison —In any event, what is the problem with that? Your question has been answered.

Senator CARR —That is the question I am asking you. It is a substantive issue as to the Commonwealth's capacity to overturn the decision of the Norfolk Island—

Senator Ellison —I will take that on notice.

Senator CARR —Thank you. Is the information provided in relation to those answers correct? Does section 23, disallowance procedures, of the Norfolk Island Act apply to all laws and processes made under the Norfolk Island Act? Is it restricted to matters initially reserved under section 22 for the Governor-General's pleasure?

Senator Ellison —That really is a question to be directed to the minister responsible for the department of regional services and territories.

Senator CARR —That is the point, Minister, in so far as it relates to the actions of this department and the capacities. That is why I am seeking advice from this department as to what they understand to be the situation in regard to what is a very serious matter involving the establishment of a shonky university on Norfolk Island.

Senator Ellison —I understand that there was a question from you on notice which asked:

Is there any reserve power in the Norfolk Island Act 1979 for the Australian Parliament to disallow the Greenwich University (Norfolk Island) Act 1998 ?

The answer which has been provided, E438, states:

The Norfolk Island Act 1979 . . . does not provide any powers to the Commonwealth Parliament to disallow an Act of the Norfolk Island Legislative Assembly.

The Act does provide that the Governor-General may disallow a proposed law of the Norfolk Island Legislative Assembly within six months from the date of the Administrator's assent.

That disallowance can occur only within six months from the date of the Administrator's assent.

Senator CARR —Is there not a more general provision that applies to all acts of the Commonwealth parliament that would take into account the capacity to go beyond that six[hyphen]month specified period under the Norfolk Island Act?

Senator Ellison —Again, I would have to take it on notice, Senator Carr.

Senator CARR —It may well be that the conventional arrangements are that the Governor-General does not exercise those powers. I would ask you to specifically consider whether an approach under section 23, which would allow for the Governor-General to disallow or take action to disallow the Norfolk Island Act with regard to Greenwich University, would be consistent with the Governor[hyphen]General's powers under sections 58, 60 and 74 of the Australian Constitution.

CHAIR —Minister, would this not be a matter for the territories minister?

Senator Ellison —I agree, Mr Chairman. This is really getting into a territories question. The minister for territories is really the appropriate minister to answer these questions.

Senator CARR —That might be the case, but I would ask you to take that particular matter on notice in view of the answer that has been given to me, as outlined on page 184 of the Hansard of the proceedings of 11 February 1999 of this committee.


CHAIR —Perhaps the minister could refer it to the territories minister.

Senator Ellison —Yes, I will refer it to him.

Senator CARR —I seek that that matter be taken on notice in that way. Mr Gallagher, do you wish to alter any of the advice you have tendered to the committee so far on your involvement in the approval of the Norfolk Island University?

CHAIR —I do not think that is a very fair question, Senator.

Senator CARR —I am just asking him.

CHAIR —I think you should be more specific.

Senator CARR —I am asking Mr Gallagher: are you happy with letting things stand as they are in terms of your advice in the last hearing?

Senator Ellison —Mr Chairman, if Senator Carr has anything in particular that he wishes to put to Mr Gallagher, he should do that.

CHAIR —That is what I am advising.

Senator Ellison —It is not normal to ask: has everything you have said in your previous life been correct?

CHAIR —That is quite right, Minister. Senator, could you be a bit more specific in your questioning?

Senator Ellison —If there is something, it should be brought to the attention—

Senator CARR —I just thought you might want to update us, Mr Gallagher, in terms of the advice you tendered on 11 February.

CHAIR —Perhaps, Senator Carr, you could ask a specific question.

Senator Ellison —It does not exactly constitute a supplementary question when you ask, `Can you update me on everything I asked before?' Senator Carr has been referring to prior questions, and it has been an appropriate way to conduct a supplementary estimates hearing.

CHAIR —It is what we used to call in education a broad focus question of high cognitive demand. I would suggest, Senator, you be a little more specific.

Senator CARR —I will be. Mr Gallagher, do you recall that, at the February hearings, we canvassed the issues of the establishment of Greenwich University and the department's role in those matters at some length?

Mr Gallagher —Yes, Senator.

Senator CARR —You are aware that Senator Macdonald, whatever his particular title is—

CHAIR —Minister for Regional Services, Territories and Local Government.

Senator CARR —The minister for territories has made some comments about the process and the involvement of the department of education in his decision to direct the Administrator of Norfolk Island to assent to the Norfolk Island Legislative Council's bill establishing Greenwich University. Are you familiar with that testimony?

Senator Ellison —Where is it?

Senator CARR —Are you familiar with that or not? It was given in estimates two days ago.

Senator Ellison —That is better. Thanks.

Senator CARR —Are you familiar with that?

Mr Gallagher —On Tuesday, 4 May, yes.


Senator CARR —Would you be aware that the minister indicated that Greenwich was first established under regulations of the Norfolk Island administration?

Mr Gallagher —In June 1998, yes.

Senator CARR —When did you become aware of those regulations?

Mr Gallagher —I was not aware of them.

Senator CARR —You were not aware of that? So the first you heard of the regulations was when the minister for territories indicated to the estimates committee two days ago that the regulations existed?

Mr Gallagher —I am sorry, Senator, I misunderstood your question. We were aware in preparing for the previous hearing of this committee on this matter of the chronology of events, including the transfer of Greenwich University from Hawaii to Norfolk Island, the provision by the Norfolk Island Legislative Assembly to establish Greenwich University incorporated by regulation in June and the subsequent decision of the Norfolk Island Legislative Assembly to change the structure and move to legislation.

Senator CARR —So you were aware at the last meeting of the committee that those regulations had been proclaimed on Norfolk Island?

Mr Gallagher —Yes.

Senator CARR —Did you mention that to us?

Mr Gallagher —I thought I did, Senator.

Senator CARR —You may well have. I just cannot recall.

Mr Gallagher —I said on page 183 of the Hansard for the previous meeting:

It was called a university when it was in Hawaii and since the 1970s. I understand it was recognised in 1994 on Norfolk Island as Greenwich University Pty Ltd, and it has traded under that local business name during that period.

You then intervened and went on about a registered company.

Senator CARR —About University Meats in Melbourne, yes. Where did you refer to the regulations?

Mr Gallagher —I did not specifically say `by regulation', but I was aware of that at the time.

Senator CARR —I did not think you had referred to the regulations, but you were aware of the regulations that had existed. Was that part of your advice to the department of the territories? Did that consideration form part of your advice?

Mr Gallagher —I think that is policy advice.

Senator CARR —Policy advice, is it?

Mr Grant —Senator, it may be the case that Mr Gallagher did not refer to regulations in the evidence that he gave at the February hearing of this committee. If there was no particular cause to mention those regulations, I do not see why you should expect that he would refer to them. If you did not ask a question about that matter, it is a reasonable thing that he did not refer to the existence of the regulations.

CHAIR —Particularly seeing this is within the purview of the territories department.

Senator CARR —There is a great deal that Mr Gallagher has not referred to, obviously. I just wanted to know what the process was that the department undertook to establish the bona fides of Greenwich University.


Mr Gallagher —Maybe, Senator, if you ask for an update, I can do that in answering that question.

Senator CARR —I did ask for an update in one of my earlier questions.

Mr Gallagher —I could deal with it that way, if you would like.

Senator CARR —Could you advise the committee as to what procedures you entered into to establish the bona fides of Greenwich University before advice was tendered to the minister for territories and the territories department concerning the establishment on Australian soil of a foreign university with this sort of reputation?

Mr Gallagher —We are in the process now of assessing the bona fides of Greenwich University following the request from the responsible Norfolk Island minister.

CHAIR —Again, Senator Carr, you have made two pejorative statements now about Greenwich University that are totally unfounded. You have no evidence of that and I would ask you to desist from doing that. Greenwich University has invited you to step outside this chamber and make those comments. There are 11 steps to courage, Senator, if you want to do that.

Senator CARR —I have asked the question: what steps did you take before the advice was tendered as to the bona fides of Greenwich University?

Mr Gallagher —I have said before we did not assess the bona fides of Greenwich University. We are now in the process of doing so.

Senator CARR —So it would be fair to say that there was no rigorous assessment of the bona fides of the university?

Mr Gallagher —The process is now under way, Senator.

Senator CARR —Would that be the same process that applied to other universities in Australia?

Mr Gallagher —The one we are about to follow?

Senator CARR —Universities are being established in other states. For instance, did the private university in Melbourne have a rigorous assessment as to its bona fides?

Mr Gallagher —Yes, I am sure it has, Senator.

Senator CARR —So the normal practice would be for there to be a rigorous assessment before a university was established in other parts of the country, would it not?

Mr Gallagher —I think the process is variable, Senator, and you may recall recent media reports about higher education institutions in the state of South Australia about which there are now investigations. So these things can happen. In the case of Greenwich University, as the Hansard record from the territories hearings indicates, there was a clear understanding given to the territories portfolio that Greenwich University would not be operating in the mainland Australian market.

Senator CARR —Was that your understanding, Mr Gallagher?

Mr Gallagher —That was the territory's understanding.

Senator CARR —No, was that your understanding, Mr Gallagher?

Mr Gallagher —It was not brought to my attention.


Senator CARR —It was not brought to your attention. So the claims that have been made by Greenwich University that you have been involved in discussions with them for a long period of time are accurate?

Mr Gallagher —Mr Chairman, can I make some preliminary observations before I answer that question?

CHAIR —Certainly.

Mr Gallagher —Let me just put this in context. The Acting Chief Minister of Norfolk Island on 21 January 1999 wrote to the chair of MCEETYA—the Ministerial Council on Employment, Education, Training and Youth Affairs—seeking inclusion of Greenwich University on the register of bodies of the Australian qualifications framework. That was, if you like, just after the Christmas break, as soon as possible after the assent to the Norfolk Island legislation by the Commonwealth. So the responsible Norfolk Island minister took immediate action to refer this matter to the responsible ministerial council.

Dr Kemp advised MCEETYA at its meeting in Adelaide on 22 and 23 April that the Commonwealth has established a process of review of Greenwich University's academic and financial credentials. MCEETYA, at its meeting in Adelaide, considered the matter in the context of developing a common protocol for accreditation and, more broadly, guaranteeing the quality of Australian higher education, given the emergence of private providers, including corporate and virtual universities crossing state, territory and national borders. MCEETYA endorsed the Commonwealth's approach in the following terms:

Following discussion, including advice from the minister for education from Norfolk Island, council:

(a) agreed to refer the issue of a common approach to criteria and procedures employed in the accreditation of higher education institutions to the Multilateral Joint Planning Committee on Higher Education for consideration and advice. The committee will report on the current criteria and procedures for the accreditation of higher education institutions in each state and territory and make recommendations on the most appropriate instrument for a common approach;

(b) endorsed the Commonwealth's proposed approach to establishing Greenwich University's academic and financial credentials. In endorsing this approach, ministers noted that the proposed committee would conduct a full assessment with additional information as required and take account of criteria and indicators set out in the 1989 Australian Vice-Chancellors' Committee statement on the nature of the university and other relevant benchmarking information about Australian universities;

(c) agreed that MCEETYA would not form its view on the inclusion of Greenwich University on the Australian qualifications framework until the Commonwealth's proposed process is completed;

(d) agreed that if the committee established by the Commonwealth advises that Greenwich University does not meet the academic and resource criteria for recognition as a university, the Commonwealth minister will take immediate steps to consult with the Territory of Norfolk Island so that legislative recognition of Greenwich as a university is removed by repeal or appropriate amendment.

I understand the responsible minister from Norfolk Island who attended the MCEETYA meeting agreed that, if the review were to find that Greenwich University did not fully satisfy all requirements, it should be given an opportunity to do so and, if it still could not meet the necessary standards, then the Norfolk Island government would consider the action appropriate for it to take to arrive at a satisfactory outcome. The committee of review holds its first meeting tomorrow.

I had previously written to the Norfolk Island Chief Minister seeking relevant documentation. That has been received and is now subject to assessment. I have also written to Dr Walsh of Greenwich University advising him of the committee membership and proposed process and inviting his comments. As chair of that review committee, I have a responsibility to ensure
the review is conducted by proper process, rigorously and fairly. Greenwich University is entitled to have its claims assessed impartially and without prejudice. I trust you will appreciate the sensitivities in this matter.

As for the sequence of events, this goes to the relationship that the Commonwealth has with the people of Norfolk Island. The Commonwealth has given Norfolk Island lawful powers and responsible self-government. The minister for territories is responsible for the Commonwealth's general relations with the Norfolk Island government.

On the matter of Greenwich University, I understand the initial proposals regarding the transfer of its administration from Hawaii to Norfolk Island was to be facilitated through regulation establishing Greenwich University Inc. around June 1998. Subsequently, the Norfolk Island government moved to establish Greenwich University by legislation, which was assented to in November 1998. Norfolk Island had confirmed to the minister for territories that Greenwich University would not be operating in the mainland Australian market.

The current situation as we understand it is consistent with several policy principles. It is consistent, first, with the nature of good relations that the Commonwealth seeks to maintain with the Norfolk Island community. It is consistent with proper processes in respect of testing the credentials of claims made for higher education institutions.

I put this issue of Greenwich University in the context that MCEETYA identified: we are seeing the rapid emergence of new forms of education delivery on a global basis and we need to be working towards a policy framework that accommodates this diversification while assuring standards, at least where public subsidies are involved, and informing prospective customers to look to certain guarantors of quality and to beware of providers that are not recognised by official guaranteeing bodies. When it comes to universities, the place to look to is the AQF register of bodies with authority to issue qualifications. That is what this process is now properly about by concurrence of all the relevant ministers.

CHAIR —Thank you, Mr Gallagher.

Senator CARR —That is it, is it? That is your statement?

Mr Gallagher —Yes.

Senator CARR —Good. Can I just go back over some of the things you have mentioned. In regard to the 10th MCEETYA meeting in Adelaide, I do not think you referred to the fact that Victoria opposed points (b) and (c) of the statement you have just read out.

Mr Gallagher —That is true.

Senator CARR —That is acknowledged in the minutes, is it not?

Mr Gallagher —Yes, Victoria opposed points (b) and (c) on the following grounds. Victoria would have preferred that the Commonwealth utilise the power available to it under section 23(1) of the Norfolk Island Act to recommend to the Governor-General that the Greenwich University Act be disallowed by 6 June 1999. Further, Victoria has real concerns with the lack of commitment by the Commonwealth to a time frame for the review and urges that this should be done as soon as possible. That was a single state dissenting view.

Senator CARR —And there were no other supporting concerns expressed by other states?

Mr Gallagher —That is the only one that is recorded in the minutes.

Senator CARR —It is the only one recorded. But at the meeting, were there other concerns?

Mr Gallagher —I was not at the meeting. It was a ministers only meeting.

Senator CARR —When it says that the proposed review will take account of the:


. . . criteria and indicators set out in the 1989 Australian Vice-Chancellors' Committee statement on the nature of the university and other relevant benchmarking information about Australian universities . . .

what is meant?

Mr Gallagher —If it is your wish, I can provide documentation to the committee as to the guidelines on the criteria for a university recognised by the AVCC. I can refer to the fact that we have advised Norfolk Island and Greenwich University that we will be using the criteria as outlined in the private providers acts for Victoria and Queensland. If you like, I can give you a copy of the letter that we wrote advising about the procedure for the conduct of the review and the criteria that we will be using.

Senator CARR —Thank you.

Mr Gallagher —The review committee itself in considering these matters may wish to add criteria or clarify those matters subject to consideration of the documentation available.

Senator CARR —And you will be able to provide me with the terms of reference for the review as well? Is there such a thing?

Mr Gallagher —The terms of reference are in the agenda items for the first meeting. If you want, I could make that available.

Senator CARR —Thank you. The minister indicated on 27 April in the Senate that:

. . . the minister for education has ordered a rigorous examination of the application by the Greenwich University to be included on the AQF register. That is something which I have advised previously. . . . this was raised at the ministerial council of education ministers and that course of action was endorsed . . . there is nothing new about this.

That is a quote from the good senator sitting beside you. Mr Gallagher, why didn't you inform the committee of these sentiments at this February meeting?

Mr Gallagher —Of which sentiments?

Senator CARR —The sentiments that there will be a:

. . . rigorous examination of the application by the Greenwich University to be included on the AQF register.

Senator Ellison —Can I just clarify this? The comments that were attributed to me were in April. What was the date in April?

Senator CARR —It was 27 April.

Senator Ellison —And the comments by Mr Gallagher were made on what date? On 11 February?

Senator CARR —Yes. But you did say that there was nothing new in what was being said, that this was raised at the ministerial council and that the action was endorsed.

Senator Ellison —What is the question I was answering? That has to be looked at surely in the context of things. Could you tell us what that question was?

Senator CARR —The question that I asked was in relation to the review and whether or not this was a backdown by the government.

CHAIR —But the minister is asking what question he was asked then.

Senator CARR —That is the question I asked. I asked the question, Senator Ellison, and it concerned the backdown by the government in relation to the review of this bodgie university.


CHAIR —Again, I warn you, Senator Carr. That is the third time you have made a pejorative statement.

Senator CARR —I have a few more to make by the time the day is finished.

CHAIR —Step outside the parliament and say it, and you will get sued.

Senator Ellison —Mr Chair, you can see the problem in this question. Senator Carr is asking Mr Gallagher to comment on his answer, which was no doubt to a different line of questioning from the one I answered 2[half ] months later in the Senate. The answer I gave was in the context of the question—that is, had there been a recent backdown by the government or had it changed course in any way. I simply said that the government was intent on a review, that this was what it was pursuing and that there was a MCEETYA involvement. That is in the context of what was asked at the time. You then have to look back to 11 February to see the line of questioning and Mr Gallagher's comments. Perhaps Mr Gallagher can have time to look at what he said then before he answers the question.

Mr Grant —Could I point out one relevant consideration here. Mr Gallagher made very clear at the February hearing, on page 185 of the Hansard transcript, that there was no exclusive power for the Commonwealth in these matters and that, in response to the request by the Norfolk Island authorities to pursue inclusion in the AQF, the matter would need to be referred to the ministerial council, MCEETYA. The significant difference between the circumstances in February and the circumstances applying at the time of the minister's statement in April is that the matter had indeed been referred to MCEETYA, MCEETYA had considered the matter with the outcomes which Mr Gallagher has described and the minister was commenting on the outcomes of that process. There is a very clear explanation of the difference.

Senator Ellison —They are entirely different circumstances.

Senator CARR —So there has been no change in government policy, Mr Gallagher?

Mr Gallagher —I do not detect one at all.

Senator CARR —You don't detect one at all?

Mr Gallagher —No.

CHAIR —Can I just remind you, Senator Carr, that what we have here is a totally new situation. We have a foreign university; it has Internet access. We have not had that situation in Australia before. Therefore, the ministerial council has quite correctly set up procedures to review this, and it will report. I would have thought, as proper processes are in train, we should wait for the outcome of that review.

Senator CARR —I always enjoy your gratuitous advice, Mr Chair.

CHAIR —Perhaps you should take it occasionally; you would stop wasting the time of the committee.

Senator CARR —We have a legitimate basis for inquiry here. Mr Gallagher, you have advised the committee that the minister for territories was advised that this university would operate only on Norfolk Island. Did you ever have cause to question that advice?

Mr Gallagher —No.

Senator CARR —You had no cause to question it?

Mr Gallagher —No.

Senator CARR —Were you aware of that advice?

Mr Gallagher —When?


Senator CARR —When did you become aware that the assurance had been given that Greenwich University on Norfolk Island would operate only on Norfolk Island?

Mr Gallagher —We were briefed before the last Senate hearings on the background of this matter, and that was one of the factors that was brought to our attention.

Senator CARR —Did you have cause to question that assumption?

Mr Gallagher —No. As I indicated at the last hearings, fairly immediately into the process, the Norfolk Island minister brought this matter to the attention of MCEETYA and that set in train a process which I called, I think at the time, a calling for a second order of recognition. The Commonwealth then had a legitimate interest in the matter and it became a matter of educational policy interests. That is now being quite seriously pursued.

Senator CARR —The problem arises that the Norfolk Island authorities are claiming that there was a decision to direct the Administrator to assent to the law—so it was a direct action by the Commonwealth government—made after extensive discussions with Commonwealth authorities. You are saying that you are not part of that.

Mr Gallagher —I need to be very careful here. It is not my understanding that there were extensive consultations by Greenwich University with Department of Education, Training and Youth Affairs. That, however, is a matter of the past, and I hope that my comment on any of that does not bear any reflection on the fact that we will have a proper and fair process of review of the quality of Greenwich University.

Senator CARR —So this committee is made up of yourself, Dr Ian Allen, the Deputy Secretary of the Victorian Education Department, and Ms Leigh Tabrett from the Queensland government? Is that right?

Mr Gallagher —She is the Director of the Queensland Office of Higher Education.

Senator CARR —Professor Ian Chubb.

Mr Gallagher —He is the Vice[hyphen]Chancellor of Flinders University and the Vice President of the Australian Vice[hyphen]Chancellors Committee. Professor Malcolm Skilbeck, who is a former Vice Chancellor of Deakin University and former deputy education director of the OECD, and Professor Sue Johnston, who is the Director of Teaching and Learning Centre at the University of New England.

Senator CARR —So the Queensland government and the Victorian government are represented, and the Commonwealth government is represented on this body by you. The rest are all vice[hyphen]chancellors of other universities?

CHAIR —Professor Johnston is from New South Wales.

Senator CARR —From the New South Wales government?

CHAIR —No, from the University of New England.

Mr Gallagher —She is a specialist in online education—distance education.

Senator CARR —Did you indicate to me what the date of reporting will be?

Mr Gallagher —The MCEETYA notes indicated a reporting date in June.

Senator CARR —That happens to be after the six[hyphen]month period in which, it is quite clearly established, the Governor[hyphen]General has the capacity to overturn the legislation has expired?

CHAIR —It also happens to be next month, Senator.

Senator CARR —That is quite clearly the case. It is after that six[hyphen]month period, is it not?


Mr Gallagher —I am not sure that it is, but, in any event, the process has to be fair and we will take as long as is required to deal with that proper process.

Senator CARR —It has to be fair to the Australian education industry as well, doesn't it?

Mr Gallagher —That is its whole purpose.

Senator CARR —Exactly. If the capacity to overturn the decisions, on this interpretation, is lost because of the passing of time, what other action is possible?

Mr Gallagher —I have indicated already that the Norfolk Island minister who is responsible for this matter indicated at the MCEETYA meeting that he also will await the findings of the review or take account of any need for Greenwich University to make changes to its arrangements or consider changes that the Legislative Assembly itself needs to make.

Senator CARR —Is this why the minutes of the MCEETYA meeting refer to Victoria having real concerns with the lack of commitment by the Commonwealth to the time frame for the review and urge that this should be done as soon as possible?

Mr Gallagher —I expect so, but I do not know their motivations.

Senator CARR —When you were briefed on the matter of Norfolk Island before the last hearings of the estimates—in February, was it?

Mr Gallagher —The hearings were in February.

Senator CARR —Were there any other discussions that you had with Norfolk Island authorities prior to that time? Could you detail those discussions?

Mr Gallagher —I had not had discussions with Norfolk Island. There were some phone calls made, as I understand, from Dr John Walsh to officers in our department.

Senator CARR —At what level in the department?

Mr Gallagher —Officer level.

Senator CARR —That is a fairly broad description. At what level of seniority within the department were these discussions held?

Mr Gallagher —The discussions in January?

Senator CARR —No, with Dr Walsh last year. At the proceedings before the estimates, you had a briefing from the territory.

Mr Gallagher —So we are talking January?

Senator CARR —No, last year. In a press release on 16 February, Dr Walsh claimed that the university alleges that Dr Kemp in parliament on 15 February did not state in response to a question about the approval by the Commonwealth of Greenwich that the following events had occurred:

The establishment of Greenwich University was under active consideration by the Commonwealth since November 1997.

Is that true or not? Has the Commonwealth been involved in active consideration of the establishment of Greenwich University since November 1997?

Mr Gallagher —That is a very general statement that would be hard to say yes to.

Senator CARR —Is it true, or is it not?

Mr Gallagher —I do not think it is the sort of statement you can make a yes or no statement to. There was some involvement. The phrase `active involvement since 1997' suggests a level of ongoing involvement that I do not think was occurring at all. I think that the level of contact
that Dr Walsh made with the Commonwealth was episodic, short term, at relatively junior levels and largely of an informal nature.

Senator CARR —Informal?

Mr Gallagher —Again, having said that, I am dealing there with matters of the past and I need to be careful to ensure that I do not give you or anybody else the impression that the future process of the review will be other than fair and proper.

Senator CARR —Is it true that approval to proceed to the establishment of a Norfolk Island university was given by the Commonwealth in December 1997?

Mr Gallagher —I understand that the approval, in the form of assent by the responsible minister for territories, was in November 1998.

Senator CARR —So that statement is not true?

Mr Gallagher —I do not know whether it is true because I do not know who would have given it.

Senator CARR —This is the statement that has been made by Greenwich University—by Dr Walsh, as I understand it.

Mr Gallagher —I doubt its veracity, Senator.

Senator CARR —So you do not think it is correct? The Education (Greenwich University) Regulations, passed by the Norfolk Island government in June 1998, were with approval of the Commonwealth. Is that true?

Mr Gallagher —It depends on who the Commonwealth is.

Senator CARR —Are you aware of any approving authority, in your dealings with the department of territories, on those regulations? Did you or officers of your department at any point provide advice or comment upon the establishment of those regulations known as the Education (Greenwich University) Regulations?

Mr Gallagher —I cannot make a comment on that, Senator. I do not know.

Senator CARR —Can you take that on notice?

Mr Gallagher —I still would not be able to answer the question.

Senator CARR —Why not?

Mr Gallagher —The matter was not brought to our attention.

Senator CARR —So you did not make any comment on it?

CHAIR —Not if it was not brought to his attention.

Senator CARR —That is not what he said. Mr Gallagher, I asked the question: can you comment, and you said you could not. Now you are saying to me that you have not.

Mr Gallagher —I have not, to my knowledge.

Senator CARR —Have you or any of your officers made comment or provided advice on the Education (Greenwich University) Regulations which were passed by the Norfolk Island government in June 1998?

Mr Gallagher —I do not think so. As I said at the previous hearings, there were contacts made with our department by the department of territories in December 1997, prior to the proposal for Greenwich to move from Hawaii, but that did not go to the matter of any form of recognition whether by legislation or by regulation or by business incorporation or any other means.


Senator CARR —Did you or any of your officers provide advice on the Norfolk Island Greenwich University Act 1998?

Mr Gallagher —Not to my knowledge.

Senator CARR —You did not provide any advice on that act which established the university?

Mr Gallagher —It was an act of the Norfolk Island government.

Senator CARR —So you were not required to provide advice on the establishment of a university in Australia under the Greenwich University Act 1998?

Mr Gallagher —No.

Senator CARR —Were you asked to provide advice to the minister or to the department of territories concerning direction to the Administrator of Norfolk Island to assent to that act?

Mr Gallagher —That is a matter for the minister for territories. You are asking about policy advice.

Senator CARR —So you are not able to tell me whether or not you provided advice at all?

CHAIR —Senator, the officer cannot comment on policy advice, particularly when it refers to another department.

Senator CARR —That is not what you said before, Mr Gallagher. This is a fifth amendment claim, all of a sudden. In previous hearings you have told us that you have provided advice.

Senator Ellison —Could you point to that, please?

Senator CARR —That he has provided that advice?

Senator Ellison —No, the previous evidence.

Senator CARR —That he has provided advice to the department of territories.

Senator Ellison —I think that should be put to Mr Gallagher, in fairness.

Senator CARR —Mr Gallagher, have you provided advice?

Senator Ellison —No, you put to him—

Senator CARR —I will ask—

CHAIR —Order! Senator Carr, the minister is speaking.

Senator Ellison —You cannot try to ambush a witness—

Senator CARR —I am not trying to ambush the witness.

CHAIR —Order! Senator Carr, the minister is speaking.

Senator Ellison —Accepted rules of questioning say that if you are putting a prior statement to a person, you should give them the opportunity to have a look at that statement, especially when that was on 11 February, which was three or four months ago. It is only fair that Mr Gallagher be pointed to where he has given evidence before and then questioned on it.

CHAIR —Absolutely.

Senator CARR —So you are saying, Mr Gallagher, that you have not provided advice concerning the establishment of this university?

Mr Gallagher —I thought I had answered that at the last hearings.

Senator CARR —Yes, but I am asking the question. That is what I understood you to have done. I am just looking for the particular reference.


Mr Gallagher —I am not changing my evidence.

Senator CARR —So you have provided advice?

Mr Gallagher —No.

Senator Ellison —He said he has not changed his evidence, and I ask that Mr Gallagher be given time to look back through the Hansard so that he can refer to it.

Senator CARR —If he could please. It would give me a chance to read over the Hansard as well, but I have no doubt that you have advised the committee—

Mr Gallagher —Page 182, Senator. I can read it for you if you would like:

In December 1997 officers of the higher education division were contacted by an officer of the Commonwealth Department of Transport and Regional Services seeking general advice on processes relating to the possible establishment of an external studies university on Norfolk Island. In reply, the territories officer was sent a copy of the guidelines on the criteria for a university recognised by the Australian Vice[hyphen]Chancellor's Committee and contact references to the New South Wales and Queensland officers responsible for the accreditation procedures for private universities in those states.

Senator CARR —I was absolutely certain that you had answered the question I just asked you—that at the last hearings you had provided advice. Now you are telling me that you cannot answer.

Mr Gallagher —No.

Senator CARR —When I say `you'—perhaps this is where the confusion is—I am talking about the department. I will rephrase it: has the department provided advice?

Mr Gallagher —I have answered that question.

Senator CARR —Yes, you have. I asked you a similar question a few minutes ago, and you said you could not tell me whether or not you provided advice.

Mr Grant —Mr Chairman, there may be some confusion in the form of Senator Carr's question. I think it would be helpful if Senator Carr could clarify exactly: advice on what?

Senator CARR —You said in the previous hearings on page 182 of the Hansard , which you have just read out:

. . . officers of the higher education division were contacted by an officer of the Commonwealth Department of Transport and Regional Services seeking general advice on processes relating to the possible establishment of an external studies university on Norfolk Island. In reply, the territories officer was sent a copy of the guidelines on the criteria . . . and contact references to the New South Wales and Queensland officers . . .

In any of that advice, did you advise the minister for territories or the department of territories that the establishment of this university was not a major issue?

Mr Gallagher —I do not think it is appropriate for me to indicate.

Senator Ellison —That involves the content of advice. Let me point out that what we have here is two different questions being asked. On the previous occasion, Senator Carr asked simply: could the officers provide him with the advice on the nature of discussions with the Department of Transport and Regional Services on the question of Greenwich University. Today Mr Gallagher is being asked in a slightly different way what the advice was that took place. As Mr Gallagher, correctly points out, it is not the norm for officers to divulge advice given from one department to another or communication from one department to another. That is relevant to the same rule which says that we do not normally provide advice given by the department to the minister—it falls under much the same heading. So on that basis the question is out of order, but I would point out that Mr Gallagher is faced with a difficult task here
because he was questioned differently in February this year from how he is now. It has been put to him that his answers are in some way contradictory, and they are not.

CHAIR —Thank you, Minister. Senator Carr, I would remind you that you cannot ask advice on policy questions or the processes of delivering policy advice. The minister has indicated the question is out of order and I so rule. Move on, please.

Senator CARR —Senator Ian Macdonald and the Vice[hyphen]Chancellor of Greenwich University have indicated that the Commonwealth and its agencies, including DETYA, the AQF and MCEETYA, were fully involved in the process. I want to come to the other two in a moment, but it does say here that DETYA was fully involved in the process to establish this entity known as Greenwich University. Is that statement correct?

Senator Ellison —Whose statement is that?

Senator CARR —That statement was made by Dr Walsh—that at all times the Commonwealth and its agencies, including DETYA, AQF and MCEETYA, were fully informed of and involved in the process.

Senator Ellison —Where did he make that statement?

Senator CARR —In a press release of 15 February. He is pointing out what he considers to be misleading statements by Dr Kemp. I am asking you a straightforward question, Mr Gallagher: is this statement true or false?

Mr Gallagher —Senator, can I take counsel on this?

Senator CARR —Yes.

Senator Ellison —Mr Chairman, there is a review on foot and Mr Gallagher is a member of that reviewing body. This review should be a fair one and should be perceived to be a fair one. That is in the interests of all concerned because, if it were shown to be an unfair review, the Australian education community would suffer all the more. If the review were seen to be unfair to or to favour Greenwich University, either way the education community in Australia would suffer.

Mr Gallagher is being asked to comment on statements made by Mr Walsh. That could invite some allegation by Mr Walsh or others that Mr Gallagher is not an unbiased person in this regard and that the review, therefore, is tainted. That is a very important consideration because of the press and notoriety brought about by this matter. In these circumstances, the review process has to be even more accountable than it normally would be because of the scrutiny being applied. So whatever Mr Gallagher says here today, you might have Mr Walsh or others alleging bias. It is my submission to the committee that Mr Gallagher should not be required to answer this question in view of those comments that I have made.

CHAIR —Thank you, Minister. I ask you, Senator Carr, to keep that in mind when you ask questions. I am sure you do not want to prejudice the outcome of this inquiry. The officer would be quite within his rights to refuse to answer questions if he feels it is going to prejudice the outcome of this inquiry—which I am sure you do not want to happen.

Senator CARR —I do not want to prejudice the outcome of the inquiry; I want this university closed down. It is a blight.

CHAIR —You mean even if it is found by the inquiry to be fair, you would want it shut down?

Senator CARR —It is a blight on the Australian education industry, and someone ought to be held responsible for allowing it to be set up to begin with. That is the question here.


CHAIR —You are now showing your true ideological colours—you really are.

Senator CARR —No, I am showing you very clearly that we have a $3 billion industry in this country that has been put at risk by the actions of these sorts of kooks—these sorts of crooks—and you have allowed this to happen.

CHAIR —Order, Senator! This is not appropriate. The committee stands adjourned for five minutes while we have a private meeting.

Proceedings suspended from 12.21 p.m. to 12.25 p.m.

CHAIR —In reconvening the committee, I point out that we are only five minutes from the break time. Senator Carr wanted to ask one question before then.

Senator CARR —I want to indicate, Mr Gallagher, that I appreciate you may well be seen to be in a compromised position if you answer questions that could be seen to prejudge your work as chairman of this review panel. I will be asking you questions as to your previous evidence and the position that has now been taken by the department with regard to this university, but I think matters that relate to contact between the Norfolk Island administration and the department of territories can well be answered by your deputy. These will relate to the processes operated by the department and the actions of the government in this matter which, I repeat, has enormous implications for our $3.1 billion industry. So, Mr Gallagher, do you have another officer here who can answer questions as to the processes adopted by the department?

Senator Ellison —Mr Chairman, the question of perception of bias does not necessarily just attach to Mr Gallagher himself; it attaches to the Commonwealth government. If any officer from the Commonwealth were to make a biased comment in relation to this review, then there could well be injuncted proceedings taken out in relation to that review which would expose the Commonwealth. Can I clarify that Senator Carr is not pursuing anything which might touch on or prejudice the review but rather is seeking answers on departmental processes in relation to Greenwich University?

Senator CARR —I am pursuing the actions of the department in providing advice to the territories which led to the direction being given by the Administrator of Norfolk Island to establish this university—

Senator Ellison —Okay; I appreciate that is a different issue.

Senator CARR —and I am obviously seeking the basis on which decisions have been made and actions taken, given the department's critical role in the protection of Australia's international reputation in the higher education field. I trust Mr Gallagher would be the first to acknowledge that the international student market is highly dependent on the reputation of this country for the maintenance of quality. Would you not, Mr Gallagher?

Mr Gallagher —I would, yes.

Senator CARR —And you would also agree that the maintenance of the standing of Australian universities is vitally important not only for their reputation in the Australian community but also for the development of Australia as a major education export provider. Would you agree?

Mr Gallagher —Yes, I would.

Senator CARR —Would you also agree that, on the ABS figures, education ranks fourth amongst Australia's exports and that it has been growing rapidly in recent years?

Mr Gallagher —Probably, Senator.


Senator CARR —I am sure you would be aware that, on a pro rata basis, Australian universities actually recruit about three times the number of international students attracted to universities, say, in the United States?

Mr Gallagher —I cannot verify that. You would have to ask the international office.

Senator CARR —But that sounds about right, does it not, Mr Gallagher, given your experience?

Mr Gallagher —I have not got much experience in the United States.

Senator CARR —Haven't you? That might be a question I might want to return to just before lunch.

CHAIR —Senator, you did say you had one question and you have had that. We are right on the break now and I am not going to allow a new line of questioning at this stage.

Proceedings suspended from 12.30 p.m. to 1.33 p.m.

Senator CARR —I draw your attention to question on notice No. E439, which goes to the issue of accreditation of Greenwich in the United States. Do you have that, Mr Gallagher?

Mr Gallagher —Yes.

Senator CARR —When was the department aware that Greenwich was not accredited in the United States?

Mr Gallagher —I think in January 1999.

Senator CARR —Could you give us a date in January?

Mr Gallagher —No, I could not.

Senator CARR —That is not a record kept in the department?

Mr Gallagher —I will take that on notice.

Senator CARR —Thank you. When was the department aware of the approaches made by Greenwich or its predecessors to seek registration and accreditation through Victoria?

Mr Gallagher —I will take that on notice, too.

Senator CARR —You have no idea when it was?

Mr Gallagher —No.

Senator CARR —Were you aware of attempts by Greenwich University, or its operations in other guises—you know it has a number of different entities, Mr Gallagher, don't you? You are aware that they have had a number of different corporate identities?

Mr Gallagher —I will take that on notice.

Senator CARR —Are you the only officer who dealt with the assessment process of the credentials of Greenwich?

Mr Gallagher —The process is not yet under way.

Senator CARR —No. But it is quite clear that advice has been tendered to the department of territories as to the nature of Greenwich University. So were you the only officer involved in the process of providing advice to the department of territories on this matter?

Mr Gallagher —I will take that on notice.

Senator CARR —You are going to take it on notice? You do not know?

Mr Gallagher —I need to check.

Senator CARR —So how many other officers do you think were involved?


Mr Gallagher —If I knew, Senator, I would answer you.

Senator CARR —When were you aware of the attempt by Greenwich University to seek to operate in New Zealand?

Mr Gallagher —I will take that on notice.

Senator CARR —What can you tell me about the relationship between Greenwich University and an entity known as White Cliffs College?

Mr Gallagher —I am not prepared to say anything at this stage, I think, that would jeopardise the review.

Senator CARR —So when was the department aware of the involvement of the principles associated with the Greenwich University and the entity known as White Cliffs College?

CHAIR —Senator, you have already been given an answer that anything relating to that matter would prejudice the review.

Senator CARR —No. I asked a question as to when the department was aware of the involvement of Greenwich University, or when it sought to operate in New Zealand, and the officer has taken that question on notice. I would like to now ask: when was the department aware of the relationship between the principals who are now involved in the entity known as Greenwich University and another entity known as White Cliffs College?

Mr Gallagher —I have said I am not prepared to answer that question because I think it would jeopardise the review.

CHAIR —It is a related matter.

Senator Ellison —The question is assuming the department knows something. Has that been established?

Senator CARR —I have asked when the department was aware. The answer may well be that they were not aware.

Senator Ellison —The question should be: is the department aware?

Senator CARR —I am quite happy, Minister, if you could assist me in that. I would like to know whether the department is aware.

Mr Gallagher —I will take that on notice.

Senator CARR —It strikes me, Mr Gallagher, that there is not much you do know about Greenwich.

CHAIR —Senator Carr, the question has been taken on notice and that means they will get back to you with an answer. Now, can we move on?

Senator CARR —When was the department aware of the matters in question E450 regarding the qualifications of Greenwich University Chancellor, Dr John Walsh?

CHAIR —I raise a point here, and I have raised it in the parliament. The academic credentials of a university depend on its staff, from the vice[hyphen]chancellor, or in the American case the president, down. A chancellor can be a member of the community. It does not matter what their academic credentials are, and many fine citizens are chancellors of many of Australia's top universities, without particularly good academic qualifications. So, Senator, your question is irrelevant.

Senator Ellison —What was the question?


Senator CARR —I asked: when was the department aware of the matters raised in question E450 regarding qualifications of the Chancellor of Greenwich University, Dr John Walsh?

CHAIR —You have asked this question in the Senate, so why are you wasting the time of the committee? You have already asked it.

Senator CARR —I have asked the officer a question.

Senator Ellison —Let us have a look at E450. There is no problem in asking the question as to when the department was aware, and I think Mr Gallagher has to check records to give you an accurate date. You could not expect him to recall that. I think a problem with the line of questioning would develop if you asked the department to pass comment on the credentials, or as to their authenticity or standard. I do not know whether that helps.

Senator CARR —Thank you, Minister, for your advice. When was the department aware of the matters raised in this question?

Mr Gallagher —I will take that on notice.

Senator CARR —When were you aware of the claim made that the Columbia Pacific University was credentialled by the Paiute[hyphen]Shoshone Indian tribe of Nevada?

Mr Gallagher —I do not have precise dates with me. I will take it on notice.

CHAIR —Are you reflecting on a particular ethnic group in America, Senator?

Senator CARR —No.

CHAIR —I am pleased to hear that.

Senator CARR —When were you aware that an independent administrative judge of the Marin County Superior Court had `ordered Columbia Pacific University (CPU) to cease operations and pay refunds to all students who have attended since June 1997'?

Mr Gallagher —I will take that on notice.

CHAIR —I just want to place a little balance in the record. I point out that I have the record of Greenwich administration in front of me, and it says that the president—our equivalent of vice[hyphen]chancellor—has the degree of PhD from Cornell University in Adult and Continuing Education. I would have thought that a very high qualification for a vice[hyphen]chancellor or president. Let us just get it into some perspective, Senator, before you follow these cute lines.

Senator Ellison —When you ask, `When were you aware . . . ' that assumes the department does know. I think the correct line is to say, `Is the department aware and, if so, when?' That is a reasonable question.

Senator CARR —Minister, you are obviously at a disadvantage because you have not read the answers to questions that I have asked the department you are representing. I am referring to E450, which stated:

. . . the Californian State Department of Consumer Affairs Bureau . . . announced that the Marin County Superior Court had `ordered Columbia Pacific University (CPU) to cease operations and pay refunds to all students who have attended since June 1997'. According to the press release, an independent administrative law judge had found, in June 1997, that Columbia Pacific University:

awarded excessive credit for prior experiential learning to many students;

failed to employ duly qualified faculty; and

failed to meet various requirements for issuing PhD degrees.

This is the place from which the Chancellor of Greenwich, Dr John Walsh, claims he received his PhD. The answer goes on to say:


. . . to meet the Californian State requirements for approval under the Californian Education Code, and to be accredited as a post[hyphen]secondary, degree[hyphen]granting institution by the Fallon Paiute[hyphen]Shoshone Governing Council. The Fallon Paiute[hyphen]Shoshone Governing Council is not included on the US Federal Department of Education list of nationally recognised accrediting agencies.

When was the department aware of those matters that were canvassed in this answer to me?

Senator Ellison —That is better. That will be taken on notice. Mr Gallagher could not be expected to recall from his own memory when all these details came to be known or when they were first known by perhaps another officer in the department. You will appreciate that we will have to take these sorts of questions on notice.

Senator CARR —Fair enough. I am referring to answers that the department has given me. That is absolutely consistent with the standing orders.

Senator Ellison —That last question was entirely reasonable.

Senator CARR —Mr Gallagher, when were you made aware of the views of the Californian state department in regard to this university?

Mr Gallagher —We will take that on notice.

Senator CARR —When were you aware of the statement:

California's life[hyphen]long learners deserve the best quality education, from preschool through postsecondary.

. . . . . . . . .

Diploma mills that manufacture degrees based on the ability to write a check, rather than the ability to master curriculum, will no longer make the grade.

Mr Gallagher —Where are you reading from?

Senator CARR —I am reading from the press release attached to the answer you provided to me in relation to question E450.

Mr Gallagher —I will take that on notice.

Senator CARR —Greenwich University also had involvement in other states in the United States other than Hawaii. What do you know of those matters, Mr Gallagher? What is the department aware of in regard to those other activities in other states in the United States?

Mr Gallagher —I will take that on notice.

Senator CARR —Why was Greenwich University required to move from the state of Hawaii?

Mr Gallagher —I am not sure that it was required, Senator.

Senator CARR —Why did Greenwich University no longer operate in the state of Hawaii?

Mr Gallagher —I am not sure that it does no longer operate.

Senator CARR —So it does operate in the state of Hawaii?

Mr Gallagher —I am not sure.

Senator CARR —Is the Greenwich University entity, known as Greenwich University, accredited in terms of the normal procedures in the state of Hawaii?

Mr Gallagher —I will take that on notice.

Senator CARR —Have the attempts by Greenwich University to enter Australia through any other means other than through Norfolk Island been brought to your attention?

Mr Gallagher —Yes, Senator.

Senator CARR —What other means?


Mr Gallagher —I am not prepared to say, Senator. I think it will prejudice the review.

Senator CARR —Apart from Victoria, are there any others?

Mr Gallagher —I am not prepared to say, Senator.

Senator CARR —Were any of these matters put to the department of territories before the minister was advised to direct the Administrator of Norfolk Island to assent to the bill establishing the university on Norfolk Island?

CHAIR —I do not think it is fair for you to be asking an officer of education what advice has been given to the minister for territories. The question is ruled out of order.

Senator CARR —No.

CHAIR —The question is ruled out of order.

Senator CARR —Were any of these issues canvassed with the department of territories at any point prior to the approval being given, and in fact the direction being given, by the minister to the Administrator of Norfolk Island?

Senator Ellison —This goes to the question of communication between officers in two departments. It is in the same position as communications between officers and the minister.

CHAIR —The question is out of order, Senator.

Senator CARR —No, I do not think that is necessarily the case.

CHAIR —Senator, the question is out of order.

Senator CARR —In the previous round of estimates the officer at the table drew to our attention his involvement with the department of territories. I understand it is on page 182. Mr Gallagher, on 11 February did you advise this committee that there had been various contacts between this department and the Department of Transport and Regional Services during 1998?

Mr Gallagher —No, Senator.

Senator CARR —You did not?

Mr Gallagher —Your question was:

You did not contact the authorities directly involved with Greenwich University or the principals?

Your question related to the contact between the department and Greenwich University principals, not between the departments.

CHAIR —Again, Senator, you are misrepresenting the question. You did that before lunch as well. I ask you to be a little more accurate in representing what officers at the table have said in previous estimates.

Senator CARR —Are these your words:

In December 1997 officers of the higher education division were contacted by an officer of the Commonwealth Department of Transport and Regional Services seeking general advice on processes relating to the possible establishment of an external studies university on Norfolk Island. In reply, the territories officer was sent a copy of the guidelines on the criteria for a university recognised by the Australian Vice[hyphen]Chancellors Committee and contact references to the New South Wales and Queensland officers responsible for the accreditation procedures for private universities in those states.

Mr Gallagher —Of course they are.

Senator CARR —I asked you, `That was in 1997?' You said, `Yes.'

Mr Gallagher —Yes.


Senator CARR —Was that the information sent? Of course, there is reference there to Dr John Walsh. I am asking you: in terms of that contact, were any issues concerning the bona fides of this entity operating at Norfolk Island raised with the Department of Transport and Regional Services?

Mr Gallagher —That goes to the content of policy advice, Senator. My answer to you in the previous estimates hearing from which you have quoted went to the provision of information, not the content of policy advice.

CHAIR —That is precisely right, Senator, and you know you cannot ask about content of policy advice. So would you please keep your questions more in line?

Senator CARR —Mr Gallagher, when you say that you sent advice back to the Department of Transport and Regional Services, did it contain only matters relating to the guidelines and the criteria for university recognition by the Australian Vice[hyphen]Chancellors Committee?

Mr Gallagher —In December 1997, yes, Senator.

Senator CARR —During 1998 you have said that you had contact with authorities involved with Greenwich University. Is that true?

Mr Gallagher —Senator, you asked me:

You did not contact the authorities directly involved with Greenwich University or the principals? You have had no contact with them at all?

I said:

There have been various contacts at various levels over 1998 and this year as well.

Senator CARR —Could you explain to me what was meant by `various contacts at various levels over 1998'?

Mr Gallagher —I think we went to this before lunch in the sense that Dr Walsh from Greenwich University had several contacts with different officers at different levels in the department on different matters.

CHAIR —You did trawl through this matter before lunch, Senator. I ask you not to go over old ground. You are wasting the time of the committee again.

Senator CARR —Did those contacts concern the issues that I have just canvassed with you regarding the activities and the history of this university in the United States, in New Zealand and in Victoria?

Mr Gallagher —The contacts were initiated by Dr Walsh seeking information from the department about procedural and other matters.

Senator CARR —So these questions that I have raised were not canvassed with Dr Walsh?

Mr Gallagher —No, Senator.

Senator CARR —Were they canvassed with any other authorities on Norfolk Island?

Mr Gallagher —No, Senator.

Senator CARR —Within the department? When did you draw to the attention of the secretary the nature of the history of the university on Norfolk Island and its application for registration as an Australian university?

Mr Gallagher —We will take that on notice.

Senator CARR —Given the answer to E439 and the process for accreditation in the United States, in which you were kind enough to provide me with the eligibility for candidacy and accreditation criteria, have you given any consideration to those criteria?


Mr Gallagher —Mr Chairman, this goes to the matter of the review. It is directly related to the processes of the review.

CHAIR —It has been ruled before that anything on the review or anything that prejudices the review is out of order.

Senator Ellison —When you say `consideration to those criteria' are you thinking of amending them or the government changing them?

Senator CARR —No, I am thinking about the assessment of the eligibility.

Senator Ellison —That does relate to the review.

Senator CARR —This is a question that arises out of government action, Senator Ellison, in the case of the department's recommendation which, according to the minister for territories, you have given to the establishment of this university on Australian territory. So it goes to the actions of the department, Minister.

Senator Ellison —Where does the minister say that?

Senator CARR —He said it two days ago at the hearings before the estimates committee. Are you saying the department did not acquiesce?

Senator Ellison —The question was:

So what was the involvement of DETYA in all this?

Senator Macdonald replied:

You would have to ask DETYA that.

Then Senator Mackay went on:

Did your department talk to DETYA in relation to this matter?

Senator Macdonald replied:

We seek advice from all relevant agencies across a range of portfolios. Can I emphasise that it is a matter for the Norfolk Island government, provided it relates to Norfolk Island. That was my only involvement in the matter.

Senator CARR —Does he not say elsewhere the department, DETYA?

Senator Ellison —Looking further, the only other spot where this was referred to was:

Senator MACKAY —But your department would have consulted with DETYA. What did DETYA say?

Senator Ian Macdonald —No, not necessarily. I can only repeat: once it became clear that it was an activity wholly and solely on Norfolk Island—either we give the Norfolk Island government self-government and responsibility in powers or we do not.

There is no mention there of any contact from DETYA or any make[hyphen]up of that content. In fact, it is quite the contrary. `No, not necessarily,' is what Senator Macdonald said. To put it to the department that Senator Macdonald has said that there has been a contact, you would have to point to it, but I cannot find it.

Senator CARR —I think later on in the hearing was he not asked again? I am sorry; I am at a disadvantage. I do not have a copy of the transcript in front of me. I am only going by memory of what I saw on the screen. Mr Grant, at the end of that exchange in the Hansard , is there not an exchange where the minister for territories is asked about the involvement of DETYA and the contact with DETYA with regard to this matter? What does he say?

Mr Grant —There are several references to DETYA, Senator, throughout this transcript. If you have particular questions to ask about particular statements that Senator Macdonald
made at the hearing on 4 May, I think you should direct your questions to those particular matters. Minister Ellison has read out a key part of that transcript. As the minister mentioned, Senator Mackay asked:

But your department would have consulted with DETYA. What did DETYA say?

Senator Ian Macdonald answered:

No, not necessarily.

He then continued in that vein.

Senator CARR —Mr Grant, is that an accurate statement of events? Did the territories department consult with your department on this matter?

Mr Grant —Senator, we have covered this matter before. There was consultation in December 1997. We covered the details of that consultation at the February hearing of this committee.

Senator CARR —So there was no other consultation other than in December 1997? Is that the case, Mr Grant?

Mr Grant —No, I am not—

Senator CARR —Could you detail to me the nature of the contact between the department of the territories and DETYA concerning this matter between December 1997 and 11 February, when I asked the questions?

Mr Grant —We will take that question on notice, Senator.

Senator CARR —Thank you. I turn to the question of the AQF register which, as I understood it, Mr Gallagher referred to. Did I hear you correctly, Mr Gallagher, in your statement concerning the MCEETYA meeting?

CHAIR —Just to stop the confusion, the correct term is MCEETYA.

Senator CARR —I understand what that correct term is, but from all I have seen so far `mycheater' is only too appropriate.

CHAIR —That is just a stupid shot. Could you keep to the—

Senator Ellison —If you are going to bring the education ministers of Queensland, Tasmania and New South Wales into disrepute, Senator Carr—

CHAIR —Yes. Perhaps we should send them the Hansard , Senator Carr. Your Labor colleagues will not be too happy.

Senator CARR —Mr Gallagher, did you refer to the national AQF register in your address before?

Mr Gallagher —Yes, Senator. I referred to the AQF register of bodies with authority to issue qualifications.

Senator CARR —Could you explain to me what that is?

Mr Gallagher —In respect of universities, which goes to the matter that is appropriate here, it is those universities which have been recognised by state jurisdictions or the Commonwealth. They are primarily self-accrediting institutions. That is the reason for them being on that register so that they are identified. There is another parallel register as well which is the register of authorities empowered by governments to accredit post[hyphen]compulsory education and training courses. This list basically provides that governments are standing behind the claims of universities with regard to their standards. What is relevant here is that the minister
responsible for Greenwich University, the Norfolk Island Minister for Education, has sought to have Greenwich University included on those lists.

Senator CARR —Is it the case that the AQF has not permitted itself to be drawn into the debate over the academic and financial viability of institutions?

Mr Gallagher —I will take that on notice, Senator.

Senator CARR —And that is why the matter was actually referred to MCEETYA?

Mr Gallagher —I will take that on notice, Senator.

Senator CARR —Can I have a list of those institutions that are registered with the AQF?

Mr Gallagher —You mean you want a copy of the list?

Senator CARR —Yes.

Mr Gallagher —Yes. We have published it.

Senator CARR —I am sure it would have been. Will registration on the AQF resolve the question of the academic and financial viability of any particular institution?

Mr Gallagher —I do not understand the question, Senator.

Senator CARR —What does registration on the AQF mean?

Mr Gallagher —Being on the list is basically the respective governments testifying to the academic claims of the institutions, but it does not go to financial viability.

Senator CARR —Has the AQF ever been known as a body for the recognition of institutions?

Mr Gallagher —The AQF is established by MCEETYA. It is a qualifications framework designed to improve broad arrangements between the states and the Commonwealth for purposes of common recognition arrangements and portability for students.

Senator CARR —But it is not a body that would be normally identified as a means by which institutions are recognised, is it?

Mr Gallagher —It is capable of being seen that way, Senator.

Senator CARR —Is that how it will be seen in the future now that you have adopted this process?

Mr Gallagher —Senator, as I said earlier this morning, this matter of Greenwich University was taken up in the broader context of the ministers being interested in ways of quality assuring and accrediting a variety of private providers that are emerging globally. This is one of the frameworks that is available. There are other frameworks. There is consumer protection arrangements, but this is an educational framework. It is in place. It is cooperative across the states and the Commonwealth. It is capable of being used in the way that we are proposing.

Senator CARR —Where does it say in the charter of the AQF—I take it there is a charter?

Mr Gallagher —MCEETYA determines its charter. MCEETYA has referred this matter.

Senator CARR —Yes, so in its current charter—

Mr Gallagher —Its current charter is whatever MCEETYA decides to give it.

Senator CARR —So it is an ad hoc arrangement, is it?

Mr Gallagher —No. It is reviewed from time to time.

Senator CARR —What is the current charter? Do you have a copy of that?

Mr Gallagher —I can get it to you, but it basically does what MCEETYA wants it to do.


Senator CARR —But the recognition of institutions is not apparently part of its charter?

Mr Gallagher —It has not traditionally been so; that is true, Senator, if that is what you are trying to get to. We see it as being capable of that and intend to use it for that purpose, and all ministers have agreed to that.

Mr Grant —There is, as I recall, an advisory board established under the auspices of the ministerial council which advises ministers on the operation of the framework.

Senator CARR —Because I do not want to put Mr Gallagher in a position where he is seen to be compromised in this review, Mr Grant, do you think that the question of the standing of Greenwich University can be confined to the consideration of one institution or does it have broader implications?

Senator Ellison —Senator, I think I can advise the committee here that over the break we have had some advice from the Attorney-General's Department that comment by any Commonwealth officer on this matter could involve a perception of bias which could lead to some legal exposure, if I can put it that way. I must say, Senator Carr, that any officer of the Commonwealth puts the Commonwealth in the same position as Mr Gallagher. Mr Gallagher of course is the chair of this review, but I would put to the committee that any other officer could afford some complainant with a possible action.

Senator CARR —You said that the Attorney-General's Department advised you of that?

Senator Ellison —Yes, the Attorney-General's.

Senator CARR —Do you have that in writing?

Senator Ellison —No. It was just obtained over the break. They would not give us written advice over the break.

CHAIR —Senator, I would ask you to keep it very carefully in mind so you do not expose the Commonwealth in any of your comments.

Senator CARR —No, but I would appreciate having a look at that advice.

Senator Ellison —Well, I have just relayed it to you.

Senator CARR —Yes, verbally.

Senator Ellison —Well, that is all we have.

Senator CARR —So there is nothing in writing to that effect?

Senator Ellison —No.

CHAIR —Still, you would be wise, Senator, to keep the comment in mind. I mean, you have already cost the committee an enormous amount of money in the time you have taken on this matter, which we will also be pursuing.

Senator CARR —Yes, I see. Mr Gallagher, do you think that this broader review that is being undertaken which was announced is in fact the same process that would normally apply to consideration of institutions seeking registrations with the AQF?

Mr Gallagher —By the broader review, do you mean the protocol?

Senator CARR —The statements that were issued, and you quoted from, from Adelaide on 22 and 23 April.

Mr Gallagher —Those matters go to the fact that practices vary across the states and the Commonwealth jurisdictions at present in respect of the recognition of private providers in relation to the arrangements for registration and quality assurance. There is a desire to position
Australia as well as possible in the light of fairly rapid global developments in the emergence of new delivery arrangements. I think it is quite timely and appropriate.

Senator CARR —And this presumably will allow a broader consideration of the question of the operations of private universities in Australia. Is that the intent?

Mr Gallagher —Not only private universities.

Senator CARR —Not only private universities but public institutions as well?

Mr Gallagher —Yes, Senator.

Senator CARR —So it will have implications in terms of the operation of the Higher Education Funding Act?

Mr Gallagher —No, that is another mechanism. The Higher Education Funding Act goes to the degree to which the Commonwealth is prepared to subsidise certain providers to deliver services.

Senator CARR —But you said to me that it goes beyond private providers. In what way will it go beyond private providers?

Mr Gallagher —Quality assurance could affect public providers but not in ways that impact on the Higher Education Funding Act.

Senator CARR —What can you tell me about the University of Asia?

Mr Gallagher —I read the Australian article, as you did. It is run from offices in Adelaide. It offers via the Internet degree programs at bachelors, masters and doctorate levels for substantial sums of money. There has been a complaint received by the ACCC, the Australian Competition and Consumer Commission, about its university status. The ACCC is currently investigating the matter.

Senator CARR —Has this institution sought recognition?

Mr Gallagher —Not to my knowledge.

Senator CARR —What is its current status?

Mr Gallagher —It is not on the AQF.

Senator CARR —What is the department's view about entities setting themselves up as universities, operating from Australia and seeking to present themselves as Australian universities?

Mr Gallagher —If they cannot satisfy the conditions to be on the AQF lists, then buyer beware.

Senator CARR —That is the limit of your obligations, do you think?

Mr Gallagher —They are established in the state of South Australia, and responsibility for education in Australia is, as you know, a shared responsibility. The Commonwealth does not have total monopoly. We certainly do not control the states in these matters and we do not really have direct power over universities. We are a player in cooperation with the states and the territories. It is because of the development of these sorts of providers that MCEETYA has properly taken the decision to refer the matter to a joint meeting of the Commonwealth and state officials to try to develop some protocols.

Senator CARR —So that entities setting themselves up as a company, just like Greenwich did, claiming to be a university, seeking to trade internationally, exploiting Australia's international reputation for high quality higher education—are these not matters of concern to the department?


Senator Ellison —Mr Chair, that again is inviting a very clear statement of perceived bias one way or the other from the department. It is a leading question; it is pejorative; and it really does breach the rule of the Commonwealth not prejudicing itself. In view of the advice we have had, I must stress that Senator Carr, in eliciting an answer of this sort, could well damage his own case as well as that of the Commonwealth or any other person. He would not be thanked for it.

CHAIR —Senator Carr, before you go on: in addition to the minister's comments, in your last few questions you have been asking for statements of opinion; you have been asking things that relate to policy and not administrative procedure; and, in addition, you have been asking things that are within the jurisdiction of the states, not the federal government. I would remind you again that these are the supplementary additional estimates and relate to questions you have placed on notice. You have not placed any questions on notice in relation to this matter. It might be better brought up in three weeks time at the broader general estimates. It is not appropriate at this point. And please keep in mind the legal ramifications of what you are now doing, as pointed out by the minister.

Senator CARR —Yes. In response to question No. 439, I am most concerned about the broader implications of the operations of these entities, these degree mills that are now operating. Let us take, for instance, St Clements University, which is registered in a British territory known as Turks and Caicos Islands. This university claims on its web site to be administered by Australian Tertiary Education Services Pty Ltd.

When members of my staff rang this university, they were advised that it was a whiskey distributing company. That might be entirely accurate, because I understand that is the nature of the business that is conducted. But these are people that claim to be running a university with a company called Australian Tertiary Education Services Ltd.

If you look at the operations of this particular crowd, it claims to be an accredited member of the World Association of Universities and Colleges. It says that members of its council include: Professor Dessart from the Valorization Commission of the United Towns Agency for North[hyphen]South Cooperation; Dr Onishi from the Balance Therapy College, Japan; and Professor David Iornem from the Institute of Management Consultants in Nigeria. It seems that a very similar set of arrangements for this university are being entered into to what has occurred at Greenwich.

The last person I have just mentioned, Professor Iornem, claims to have attended St Clements University, which he says is at Prospect, South Australia, and to have taught courses at that university in Australia including research methodology and project writing, among others. This Professor Iornem is actually located in Nigeria. His CV tells us that he won a prize as the best all[hyphen]round student at Kaduna Polytechnic in 1973 and that he wrote a book entitled How to be a good manager in ten minutes . I think we have been able to demonstrate that similar patterns are being established in three separate cases. Perhaps it is a book that officers from the department would benefit from.

CHAIR —Your publicity might make it a best-seller, Senator Carr!

Senator CARR —When you ring St Clements University, you get a message saying, `You have reached the offices of Australian Tertiary Education Services and malt whiskey wholesalers.' Given the points that have been made—and I think agreed by the department—about the value of Australia's higher education industries to this country and about the international student market being highly dependent on our reputation for quality and acknowledging how significant the standing of Australian universities is to the maintenance
of reputation of the industry as a whole; and given the fact that the situation has been undermined by the approval of the university on Norfolk Island and the operations of these three other entities that I have referred to—what recourse does the citizen of this country have to its national officials to protect that industry?

Mr Gallagher —I think the government has actually been quite proactive in this area. What you have at the moment is all the governments of the Commonwealth, the states and territories agreeing to have this matter looked at cooperatively across all jurisdictions. The matter has been identified as a quickly emerging problem. I was tempted to use the analogy of other things that are happening on the Internet but I think that would probably give the wrong impression.

Senator CARR —No, there will be another tranche of Telstra sold off as a consequence. We cannot have that.

Mr Gallagher —Let me indicate to you that two years ago we commissioned a major piece of work looking at the convergence between global media networks and higher education provision across the world. We have published that report, and it has been widely distributed. We commissioned a second stage of that report, because what that first stage identified was that the main threats are coming from the development of corporate and virtual universities, for which nation states do not have regulatory apparatus sufficient to control. In the second stage, you may be interested to know that the United Kingdom has sought to join in, following on the Australian initiative. So in terms of coming to grips with these matters, we are out in front.

Senator CARR —There might be a view that you have, Mr Gallagher, but I say to you that is not the view that I am hearing from a number of other quarters. You may say that we are vulnerable to attack from overseas entities that are clearly very dubious—I do not think there would be any other way to describe them. You may say that, if they operate from another territory using the Internet, it is difficult for either the Australian government or the Australian education system to regulate that action.

But what we have here are instances where universities are functioning from Australian territory. They are claiming to be Australian entities and are operating from an offshore territory, like the famous pirates of old or like the tax havens of old, using legal devices and incompetence by government ministers and making a bridgehead into this country's educational institutions. I put to you that we now may be seeing the beginning of a much more significant problem with these other entities using post office boxes and various other organisational capacities in this country to circumvent the regulatory framework. I am asking you, Mr Gallagher: isn't there more that can be done to protect Australia's educational reputation?

Mr Gallagher —We have all the governments around the country agreeing to take concerted action in this area. It is not a simple matter. No-one else in the world has come to grips with it yet either. I do not know of any other nation that has its act together like Australia has its act together at the moment—at least to work towards identifying what the dimensions of the problem are and what the best options are.

Senator CARR —Mr Gallagher, you have the operations of a minister in the Commonwealth government complicit in this corrosion of our educational institutions, directing the Administrator of Norfolk Island to assent to the Norfolk Island bill, and you are saying that we are ahead of the pack on this?

Mr Gallagher —You are making judgments about Greenwich University in advance of anybody reviewing it, Senator.


CHAIR —I would remind you, Senator, that there is a major inquiry on into this matter. You should not keep prejudicing that.

Senator CARR —Mr Gallagher, you will be pleased to hear that I will be pursuing this question at the next round of estimates.

CHAIR —Are there any more questions on subprogram 2.1?

Senator CARR —Yes, there are. In regard to the voluntary student unionism legal opinion that has been presented by the AVCC, has the department considered this legal advice?

CHAIR —Just before the officers answer, this whole matter is subject to a major inquiry this Friday when all these issues will be canvassed over a whole day and, of course, we have another round of estimates following that. This is the supplementary additional estimates to questions. I cannot recall you having raised this question in the supplementary estimates. I am sure you will be there questioning on Friday. If I could suggest you leave this matter to then and show some cooperation with the committee.

Senator CARR —Sure. We have 260 submissions or thereabouts to the VSU inquiry. The secretary tells me we have about 350 submissions to the VSU inquiry.

CHAIR —Most of these are one[hyphen]page submissions that are identical and just people putting their name on them.

Senator Ellison —Proforma ones.

Senator CARR —There is a major level of public interest in this matter. The opposition has sought hearings over a number of days to consider this highly controversial and significant legislation. The government through the force of its numbers is depriving us of the opportunity to pursue these matters—

CHAIR —It is a normal procedure to have a one[hyphen]day hearing into a bill.

Senator CARR —You are proposing to hold a one[hyphen]day hearing. At 350 submissions, clearly we will not be able to canvass the issues thoroughly.

CHAIR —It is not a references committee matter.

Senator CARR —This is a matter of departmental operations. I am asking: has the department considered the AVCC's advice in regard to the legality of the government's voluntary student unionism legislation?

Mr Kriz —The answer to your question is that the government has obtained legal advice both before the legislation was drafted and after as a result of that particular—I think it is the Minter Ellison advice that you refer to?

Senator CARR —Yes.

Mr Kriz —So the answer is yes.

Senator CARR —You will no doubt be able to advise me that you are satisfied that the bill before the House of Representatives—as I understand it, the bill has not been introduced to the Senate as yet. That is correct, isn't it?

Mr Kriz —It is before the committee; it is being considered tomorrow.

Senator CARR —It is before the committee but it is not before the Senate. It is before the House of Representatives. That is correct, isn't it?

Senator Ellison —The VSU bill is back in the Senate, isn't it? Are you talking about the VSU bill?


CHAIR —Yes, he is.

Senator Ellison —It is back in the Senate.

CHAIR —It has been referred to the committee.

Senator CARR —No, it is not back in the Senate.

Senator Ellison —My understanding is that it is waiting in the list of bills in the Senate.

Senator CARR —No. We can get advice, but it is on the government—

CHAIR —I can tell you it is a fifth priority bill.

Senator CARR —No, it is not. I have actually got the statement.

CHAIR —No, I am sorry, you are right; it is not a fifth priority bill.

Senator CARR —I have got the statement. We will get to what the government is going to do about its legislative program in a moment. But, as I understand the matter, it is not—

Senator Ellison —We are just checking on that. Do you have another question in the meantime?

Senator CARR —Is the department satisfied that the bill is consistent with sections 51(xxiiiA), 61 and 81 of the Constitution?

Mr Kriz —The department is satisfied that the bill is within the Commonwealth's constitutional powers.

Senator CARR —Are you satisfied of that?

Mr Kriz —On the basis of all the advice that we looked at, yes.

Senator CARR —That is all I can ask of you. Have you got the advice on that?

Senator Ellison —Where is it?

Senator CARR —It is not in the Senate.

Senator Ellison —Where is it?

Senator CARR —It is in the House of Representatives. It has not passed the House of Representatives yet. It is in the second reading stage in the House of Representatives.

Senator Ellison —I think it has been passed in the House of Representatives and has yet to come back to the Senate.

Senator FERRIS —It is listed for next week, the budget week.

Senator CARR —I do not believe it has passed the third reading stage in the House of Representatives.

Senator Ellison —Very well, we can work on that basis.

Senator CARR —Given that it is not on the list of the government's high priority bills, Minister, and that it is listed only on the list of `time permitting bills', is the government considering withdrawing the legislation?

Senator Ellison —No.

Senator CARR —So when do you anticipate that the matter will be before the Senate?

CHAIR —I imagine that it probably depends on the amount of time you spend on the GST bill. So why do you not speed things up, and we will get to it.

Senator CARR —I just wanted to know when the government was planning to bring the bill into the Senate.


Senator Ellison —As it says, as soon as we reasonably can. But we do have the GST legislation, the new tax system legislation, before the Senate. It, as you know, Senator Carr, is taking some time, which you could well have a hand in hurrying up if you want to get to that VSU bill.

Senator CARR —No, I just wanted to know—

CHAIR —He is the Manager of Opposition Business in the Senate.

Senator Ellison —Exactly.

Senator CARR —Mr Kriz, is the department satisfied that the legislation applies to more than just HECS related students? I understand Minter Ellison to be saying that it can only apply to HECS related students. Are you satisfied that that is not the case?

Mr Kriz —I am satisfied that the legislation achieves the government's policy objectives.

Senator CARR —So, as far as the department is concerned, there is no anomaly between HECS related students and other students?

Mr Kriz —Not that I am aware of.

Senator CARR —Do you want to take that on notice? There was some hesitation about your answer.

Mr Kriz —If you like.

Senator CARR —Thank you. Question No. E459 goes to the projections of overenrolments. You have given us estimates to 2001. Do you see that in the graph?

Mr Mutton —Yes.

Senator CARR —How are you able to predict the overenrolment figure for 2001 to be 13,801?

Mr Mutton —I think we have taken some licence with the final digit.

Senator CARR —Which licence is that, the `1'?

Mr Mutton —I mean that 13,801 is almost certainly beyond our powers of prediction.

Senator CARR —Yes.

Mr Mutton —I think it is simply people adding up a lot of numbers.

Senator CARR —And guessing?

Mr Mutton —They are not asking whether the final answer is a sensible one.

Senator CARR —That is my job, is it not? It would help me if you could explain to me—

Mr Mutton —The real answer to your question, apart from the excess of precision, is that it is based on universities' profile projections.

Senator CARR —But it is a guess?

Mr Mutton —I do not think it is a guess; it is an educated estimate. We do it regularly in other places. You asked what it is. We ask them. We want some idea, and they are not wildly inaccurate.

Senator CARR —Why is it that the number of overenrolments will decline so dramatically? As I read your figures, for 1998 you have got 22,903—I presume that that can be an accurate figure—and then you claim 16,993. Is that figure accurate?

Mr Mutton —As I have just said, they are estimates. They are orders of magnitude.

Senator CARR —That is for this year. That is the 1999 figure. Is that now accurate?


Mr Mutton —We only have early estimates.

Senator CARR —Yes, so it still remains an estimate?

Mr Mutton —Yes.

Senator CARR —But then you go to 14,973 and then down to 13,800. Can you explain to me why there is this apparently massive drop in overenrolments?

Mr Mutton —Because universities indicated to us in our discussions with them that they intended to wind back the extent of overenrolment. They had different reasons and different estimates, university by university, as to the extent to which they would do that, but that was their intention. I have to say that the early estimates for this year suggest that they have exaggerated the extent to which they were going to pull that back. They have, in fact, overenrolled by a greater extent than they said they would. But they are early estimates, and early estimates tend to be higher than the final figures.

Senator CARR —Are you attempting to discourage universities from overenrolling?

Mr Mutton —I think there are two dimensions. The government has indicated to universities that if they overenrol they will, in effect, return minimum discounted HECS. But they would only expect universities to overenrol if they believed that there was marginal capacity, that is to say, an additional student would cost a marginal amount to add to a class. Sometimes to make a class go from 21 to 22, or whatever, does not cost the average cost. However, if universities were overenrolling because their systems were inadequate and there was an adverse impact on quality, then we would be concerned.

Senator CARR —Are you taking actions to discourage?

Mr Mutton —We have not taken specific action to discourage. But we do, in our discussions with universities, ask how it came about, whether it was intentional, and what they were going to do if it was unintentional.

Senator CARR —And they tell you that they are going to cut it out or reduce it?

Mr Mutton —There are different answers in different universities. Some universities say that they believe they can afford to provide places for more students and are happy to do so at the price the government is prepared to pay. Some universities have indicated that their enrolment systems did not work very effectively. Their difficulty is that once they have made an offer to a student they cannot withdraw it. So if they offer on the basis that a certain percentage will not, in fact, take up the offer, which is always the case, they can be caught out with more students than they intended. And some universities have a greater capacity to deal with that than others because they, perhaps, have a lot of first preferences.

Senator CARR —In the past I have asked questions on matters relating to overenrolments by institutions and, as I recall, you said to me that they will be available later on.

Mr Mutton —We can provide it for last year, just not for the current year.

Senator CARR —I see. So can I have the individual institutional lists of overenrolments?

Mr Mutton —For 1998?

Senator CARR —Yes.

Mr Mutton —Yes.

Senator CARR —It is quite clear that additional payments for over[hyphen]quota moneys are now available, so I take it there is no difficulty in providing this information.


Mr Mutton —A couple of universities still have not confirmed with us the numbers that we have put to them.

Senator CARR —Which universities are they?

Mr Mutton —I cannot remember offhand; I think there are about half a dozen. We have indicated to them that we want those matters settled with the next few weeks. These are numbers very much at the margin.

Senator CARR —The figures that I have here suggest to me that on the census data that you have published for March of last year there are now calculations for every university in the country as to the payments for over[hyphen]quota enrolments. Is that the case?

Mr Mutton —No, that publication relates to first semester. There is a second semester collection, and then adjustments to get a full year effect. So, as we indicated last year, we cannot do the precise calculations until early in the following year. We have done those. We have been checking them with universities. Most of them have been paid. In a few cases they have yet to get back to us but, typically, they have got back to us agreeing with the numbers we have given them.

Senator CARR —When will you be able to provide me with a list?

Mr Mutton —Next month.

Senator CARR —Next month?

Mr Mutton —Yes. We could give you a list that says, `Subject to the university confirming,' but we would prefer to give you the final. We could tell you what we have calculated, but we have done the right thing and written to universities saying, `This is our calculation. Can you confirm its accuracy or otherwise?'

Senator CARR —Can I get your assessment to date, and we will just have a look it in a month's time, if you do not mind?

Mr Mutton —Sure.

Senator CARR —Thank you. I go now to question E460. It seems that there is a considerable lag in the payment of moneys for overenrolment. For instance, the 1997 overenrolments funds are not advanced to the universities until some time in 1998. Is that correct?

Mr Mutton —I think I have just explained why that is the case. It can only be done on actual data checked with the universities. Those adjustments will be completed by 11 June. Those universities who have been prompt in responding have already been paid.

Senator CARR —Do you think that all of the institutions are able to cope with this delay? It has quite serious financial implications, does it not?

Mr Mutton —I am not aware that we have had a single complaint. We have actually had to chase up the universities in some cases to get them to respond.

Senator CARR —I see here that for small universities like Swinburne and VUT we are talking about $5 million, $4 million, and for Deakin it is $6 million. They are significant amounts of money, are they not?

Mr Mutton —All I can say is that the people who have been doing the pushing to get this finalised have been us rather than universities.


Senator CARR —On the list there are payments of over $3 million in 11 cases and over $5 million in three cases. It does remain a substantial proportion of total operating budgets, does it not?

Mr Mutton —Yes.

Senator CARR —And you are saying they have not complained about it?

Mr Mutton —I am not aware of any complaints, Senator.

Senator CARR —In the case of Swinburne University, I am told that it is about 4.5 per cent of its operating budget. In the case of the Victorian University of Technology, it is an equivalent of 3.5 per cent of operating budget. Apart from pushing them to sign up to the enrolments, are you doing anything else to expedite these payments?

Mr Mutton —We can only write and say, `This is what our calculation is. Can you confirm it is correct? When you do, we will pay you. If you can do it by a certain date, we will pay you on that payment date. If it is any longer, we will have to pay you at a later payment date.' It is their judgment.

Senator CARR —On that basis, it is a reasonable approach. No doubt we will hear whether there are any complaints about this.

Mr Mutton —I can only say that no-one has raised it with me.

Senator CARR —Fair enough. If we look at the overall operating grants to institutions based on the figures that I have referred to, the triennial reports suggest to me that up to seven universities will experience total reduction in Commonwealth operating grants of over five per cent. Have you had any complaints from universities about the effect of those sorts of reductions?

Mr Mutton —Reductions of five per cent for what reason?

Senator CARR —Operating grants.

Mr Mutton —If you are simply talking about the general reductions in operating grants, we have all read the newspapers. Universities have been complaining since the 1996 budget about the reductions in operating grants against forward estimates.

Senator CARR —Does the department believe these sorts of drops are sustainable?

Mr Mutton —That is a matter for the government to decide, Senator.

Senator CARR —Minister, do you believe these sorts of reductions are sustainable: Flinders University, 5.1 per cent; La Trobe University, 5.6 per cent; Monash University, 5.8 per cent; RMIT, 5.9 per cent; University of Melbourne, 5.9 per cent; Deakin University, 6.1 per cent; University of Tasmania, 6.5 per cent; and University of New England, 7.7 per cent?

Senator Ellison —Senator Carr, as I understand it, these universities are over[hyphen]enrolling. If they could not afford to take the extra students, they would not be doing that. They must be going okay.

Senator CARR —I am sorry, Minister, I do not know whether you are following me here. This question relates to the level of operating grants supplied by the Commonwealth to institutions, not just to the question of over[hyphen]enrolment payments.

Senator Ellison —No, but it is the same thing. If the universities stretch too thinly, they are not going to be overburdening themselves with over[hyphen]enrolments. The government sees the situation as being a reasonable one. In fact, as I understand it, there has been an increase in the number of funded undergraduate places.


Senator CARR —Perhaps we will return to that when we have a look at the budget. I ask you to look at E321 in regard to application rates. From the answers you have given me, I see that there is a decline of 9.4 per cent for mature age applicants and a 4.8 per cent decline overall. There appears to be quite a consistent reduction in mature age applications over that period. I see that the Northern Territory in particular has been excluded from those figures presented. Is it true that the Northern Territory has suffered a greater level of decline than other universities?

Mr Gallagher —The Northern Territory University has had difficulty meeting its enrolment targets now for several years, particularly at the undergraduate level. Each year we have negotiated some amendment to their targets to see whether we can get a better balance between what they are supplying and what is being demanded. But the demand does appear to be soft at the undergraduate level in the Northern Territory.

Senator CARR —Is this particularly the case for mature age students in the Northern Territory or is it all students?

Mr Gallagher —It is general; demand is soft at the undergraduate level. I would have to look into the particular characteristics of the NTU in terms of mature age.

Senator CARR —But as far as you can see, your experience would suggest to you that it is across all categories?

Mr Gallagher —Actually, the national figures show a slight improvement in applications of mature aged students for 1999 over 1998.

Senator CARR —I am sorry, I have a different set of figures from those.

Mr Gallagher —My figures are that there were 92,889 in 1998 and 93,595 in 1999.

Senator CARR —But over the period 1996 to 1999 the decline is about 9.4 per cent. Is that correct?

Mr Gallagher —Yes, but it is significant that it has not continued to decline. In this last year it has come back up.

Senator CARR —So you think there is a 1.2 per cent rise in applications for this particular year?

Mr Gallagher —Yes, and we do not know whether there has been a troughing of the decline in applications.

Senator CARR —You do not think that is because we are off an abnormally low base?

Mr Gallagher —We have not done formal analyses yet, but the base is 100,000.

Senator CARR —How does that compare to the previous year's base figure?

Mr Gallagher —I am just talking in terms of the movement, Senator. The movement has been declining in mature age. It was of concern, and questions have been asked in this place before. We said that we would monitor it on a three-year basis. Now it has turned and it is starting to move upwards.

Senator CARR —Can you have a look at E324. In terms of application rates on trend lines since the introduction of the new HECS regime, do you believe there is continuing evidence of a drop in applications—a drop of 3,000 applications overall and a drop of 2,000 amongst mature aged applicants?

Mr Gallagher —There does seem to have been a behavioural effect from 1996 to 1997, but it has patterned out and it is now turning the other way.


Senator CARR —In 1998 there are 92,000 mature age students compared with 96,000 in 1997. In 1993 there is a slight rise—as you say, a one per cent rise. It is not a one-off thing, is it? It appears that a much longer trend line can be established. Would you agree?

Mr Gallagher —I am saying that there has been a turnaround in this last year.

Senator CARR —The overall decline has been 2,000. What is your expectations of the forward projection on that? Do you anticipate that that trend—that turnaround—as established as you see it this year will continue?

Mr Gallagher —We do not have precise answers on this, Senator. We are watching behavioural responses to changing incentives here, but it does seem to have troughed. We do not expect it to rise shortly. We do not expect it to decline.

Senator CARR —All right. We will have a look at that again. Let us have a look at entry cut-off scores on E322. You have presented the cut-off points for a number of courses. What was the rationale for the selection of the courses as presented in this answer?

Dr Karmel —We are really bound by the information that is easily available from the admission centres. This is not data from our database.

Senator CARR —So arbitrarily you selected those particular courses, did you, or was there a rationale for them? Did you pick them on the basis that there was a number of common programs across universities?

Dr Karmel —They are obviously large courses, but I would have to take that on notice.

Senator CARR —Thank you. I see that education is presented in some but not in others. I would have thought that would have been readily available, or does that relate to the availability of education at particular institutions?

Dr Karmel —That is what I would have to take on notice. I will provide you with the details.

Senator CARR —Thank you. I asked some questions at the previous estimates regarding sources of income for universities. I have a question that I will put on notice. Question E338 relates to fee paying domestic undergraduate student places. Again, we have a question regarding the reliability of estimates. The estimates provided on the analysis by the AVCC appear to have been that a 1990 figure for undergraduate fees is $1,706. The shortfall of the estimate made by the department was nearly 30 per cent. The previous year I understood the estimate error rate was 40 per cent. I suppose you could argue that you have improved considerably—that is a significant productivity increase. How accurate are your estimates, though, if that is the level of error—30 and 40 per cent? How reliable are your estimates?

Mr Mutton —Senator, I think we went through a similar line of questioning last time, and we indicated that this was a new market for universities. The extent to which they pursued this market depended on their own policies. It is not a matter for us to be able to estimate how much effort they have put into marketing and to what extent they would open up places in particular disciplines and so on. So we have relied on their estimates. This year they have exceeded their estimates, according to the early estimates data that we have received. In their profiles documentation, they were suggesting that this year there would be 1,440 such places. The early estimates—and I stress they are early estimates, not final ones—show 1,650. History would suggest that that will come back closer to what they originally said they would get.

Senator CARR —Is this a question really of the capacity of the universities to plan their business? Is that really what it is about?


Mr Mutton —I think they can plan it okay; it is whether they can carry out the plans in some cases. In fairness to the universities, I want to reiterate that they are working in a new market and they do not know a lot about what the level of demand might be.

Senator CARR —I draw your attention to an issue that was raised regarding a graduate of the Monash law course. A constituent of mine had been denied entry, according to correspondence that I had received, because of the change of policy at the Monash law faculty. This was contained in the Hansard record at page 195. Can you update us on the discussions and investigations undertaken by the department involving Monash University in this matter?

Mr Mutton —Senator, I am not sure. Mr Gallagher wrote to you on 2 March. I do not think we have anything further. The burden of that was the university has indicated it has no such policy.

Senator CARR —That is the claim. So that is the end of the matter, as far as you are concerned?

Mr Mutton —They say it is not a policy. That is on the public record. We have conveyed that to you. If the person who made that complaint to you is able to substantiate, if he or she believes it is the case, that Monash has misrepresented the situation, we would be interested to hear that, but we have no reason to believe that Monash would do anything other than tell us the facts.

Senator CARR —I raised questions this morning with regard to E489, and that relates to Murdoch University establishing a school. We were advised that there had been discussions between the Schools Division and the Higher Education Division of the department. Have there been discussions relating to the capacity of universities to circumvent funding guidelines by the establishment of schools in this way?

Mr Gallagher —Which funding guidelines do you see as being circumvented?

Senator CARR —These are the fee paying guidelines that apply for higher education courses being conducted by higher education institutions.

Mr Gallagher —I thought you were talking about secondary schools.

Senator CARR —No, the higher education institutions. Is there any capacity for universities to use schools as a means of getting around the guidelines by using credit points?

Mr Gallagher —I am trying to understand your question. Do you mean a private school affiliated with a university—

Senator CARR —Operated by a university, not just affiliated.

Mr Gallagher —I am not sure whether Murdoch actually operates the school. I think it only leases the premises to the school.

Senator CARR —Could not the early stages of a degree be gained through the school while the final years occurred at the university? Could this not be a means to circumvent the guidelines?

Mr Gallagher —We would have to have a look at that. There are a number of practices around the country where different universities recognise certain high-fliers in the upper secondary school system and give them sort of advanced standing in university programs. Those students may be in private or in public high schools. If they are in private high schools, presumably they are paying fees and they get credit advance into a university, but I cannot see that that has anything to do with infringing on the 25 per cent guidelines for fee paying in the university sector.


Senator CARR —You will be pleased to know that I am required elsewhere. I am going to have to put a number of questions on notice, which I see troubles the minister a great deal! I will place on notice those regarding postgraduate fee places and access to HECS related places, entry standards for undergraduate degree fee payers, the Monash University medical faculty and breaches of ancillary fee advice at Macquarie and Southern Cross.

Mr Gallagher, there is a matter I do need to talk to you about directly, however, because it is difficult to put across in written form. This question relates to the HECS trust fund. In the reply to question No. E313, the department quoted transcripts of a hearing of the predecessor of this particular estimates committee, which I understand were in fact quotes from yourself, Mr Gallagher, and you describe the HECS trust fund as an accounting system. This new answer E313 says that the trust fund has become a component of the reserve money fund, or RMF, under the Financial Management Accountability Act 1997. Am I correct in saying that there has been a change in the description of this trust fund?

Mr Mutton —Senator, I am not aware that there is any material change. There certainly is a change in the name, but I do not think it is anything more than the name.

Senator CARR —The funded moneys have never actually been dedicated to the higher education system, have they? They are not hypothecated?

Mr Mutton —I will stand to be corrected, but my understanding is that money can be taken out of the fund only for the purposes of higher education.

Senator CARR —So you are saying they are hypothecated?

Mr Mutton —In that sense, yes, under legislation.

Senator CARR —Mr Gallagher, you were a member of the Wran committee which actually set up HECS, were you not?

Mr Gallagher —No, I was the secretary to the committee.

Senator CARR —But you did participate in the committee as secretary?

Mr Gallagher —Yes.

Senator CARR —Was it the intention of the HECS revenue to offset the cost of expansion to the system?

Mr Gallagher —That was not the committee so much as the minister and the government in the proposals to introduce HECS. The concept, as I recall, was that the HECS trust fund be available for expansion and maintenance of the sector.

Senator CARR —Sorry, expansion and maintenance, was that the case? That is your recollection, is it?

Mr Gallagher —Yes.

Senator CARR —The trust fund was never actually enshrined in legislation at the time, was it? Was that the case?

Mr Mutton —Yes, it is in the Higher Education Funding Act.

Senator CARR —But is the purpose of the fund enshrined in legislation? You said to me that you cannot withdraw money other than to spend it on higher education. What other purposes are established in that legislation?

Mr Mutton —Section 61 says:

Money in the Reserve may be applied for the purposes of—

Do you really want me to quote this? I could provide you with a copy of that, if that would be helpful.

Senator CARR —I am sure you could.

Mr Mutton —The purposes are defined.

Senator CARR —But it does not define expansion, does it, or does it just say maintenance?

Mr Mutton —I think it is just payments.

Senator CARR —So it is not clear, is it?

Mr Mutton —I think it is only payments, and governments at various times have talked about it being a way to assist in the expansion of the system and at other times, or even at the same time, as a student contribution towards the cost of something that has a public and a private benefit. But the legislation does not specify that.

Senator CARR —No, the legislation does not define it. It is my clear recollection that at the time the intention of this fund was for the expansion of the system—600,000 extra places, I recall, was the figure used quite a lot. It is no longer for that purpose, is it, Mr Gallagher?

Mr Gallagher —The system has quite expanded.

Senator CARR —Yes, but it is not for growth anymore, is it?

Mr Gallagher —In 1996, the 2000 projections had been exceeded.

Senator CARR —That money is no longer used for growth; it is more maintenance, is it not?

Mr Gallagher —There is still a growth pipeline out there, Senator.

Senator CARR —But that is the point, is it not? That is the only growth in the entire system. There is no Commonwealth growth at all? In fact, there is a reduction in the fund. This answer points out that a dramatic change has occurred in recent years in the use of HECS funds. Would you agree?

Mr Gallagher —I think the objectives of the 1988 white paper were achieved. The growth targets that were set in the green paper were exceeded, and governments have subsequently adjusted policy parameters.

Senator CARR —I think I have the answer I wanted.

Mr Mutton —It is also fair to say that the students are still paying the money back. Governments advanced very large amounts of money before they received those HECS contributions.

Senator CARR —When will the green paper on the future of research funding be released?

Mr Gallagher —That is a matter for the minister.

Senator CARR —Is it the case that the research paper has been rewritten?

Mr Gallagher —That is a matter for the minister.

Senator CARR —Presumably, the green paper is intended to be released this year?

Mr Gallagher —That is a matter for the minister.

Senator CARR —When that is released, you will be able to answer questions on the process that went towards the construction of that paper?

Mr Gallagher —I will take that on notice.

Senator CARR —I am sure you will be fully briefed by the next time we speak on that, Mr Gallagher. In your answer to question No. 326—relating to the issue of research
infrastructure—it says that research infrastructure will decline by some $22 million between 1998 and 2000. Is that correct?

Ms Gordon —The forward estimates for university research infrastructure funding showed a decline in 1998. That decline was predicated on the fact that the three[hyphen]year funding that came in in 1996 was due to cease.

Senator CARR —When you say that it is not appropriate for you to comment on this, what do you mean?

Ms Gordon —I did not say it was inappropriate for me to comment.

Senator CARR —I thought that was what your answer said to question No. 326. Is that right? Your answer to No. 326 says, `The department does not think it is appropriate to comment further at this stage'.

Ms Gordon —The government anticipated the concerns about research infrastructure in its 1998 higher education policy statement for the election, and any funding that would attend on that would be coming through in the next budget. So it would not be appropriate for us to comment in advance of that.

Senator CARR —So it is a budget matter? Is that what you are saying to me?

Ms Gordon —That is a matter for the government to comment on at this stage.

Senator CARR —In your answer to question No. 329 on research postgraduate places, you again say that this is a matter for government policy. What is the basis for the government policy?

Mr Gallagher —That is a policy matter.

Senator CARR —You cannot give me an explanation as to the basis for policy?

Mr Gallagher —Not in this context, no.

Senator CARR —But you will be able to at the next round of estimates?

Mr Gallagher —Hopefully.

Senator CARR —I think that concludes my questions. I will put the rest on notice. Thank you very much for your assistance.

CHAIR —Dare I ask if there are any more questions. There being no further questions, this concludes this round of the supplementary additional estimates. I thank the minister and the officers of the department for their patience and forbearance.

Senator Ellison —Thank you, Mr Chair, and members of the committee.

Committee adjourned at 3.16 p.m.