Legislative Council Fifty-Fifth Parliament, First Session (55-1) 55 1 Parliament of South Australia Legislative Council published Bills TAFE SA Bill TAFE SA Bill TAFE SA Bill Committee Stage Committee Stage In committee. Clause 1. The Hon. D.G.E. HOOD Legislative Council The Hon. D.G.E. HOOD: I have three questions at clause 1. The first is with respect to consultation. What stakeholders were approached in the consultation process for this bill? The Hon. E.S. BOURKE Legislative Council Minister for Infrastructure and Transport Minister for Autism Minister for Emergency Services and Correctional Services The Hon. E.S. BOURKE: I am advised around 15 stakeholders were consulted during the drafting of the bill, with around nine providing a response during that consultation period. That ranged from people within the unions, and particularly the AEU was involved in regard to consultation. The TAFE SA board, I believe, was also consulted, the Commissioner for Children and Young People, the Department of Treasury and Finance, the Office for Women in the government of South Australia and Regional Development Australia (RDA), just to name a few of those that were consulted. The Hon. D.G.E. HOOD Legislative Council The Hon. D.G.E. HOOD: I said three questions—perhaps three categories—and this is a bit of a supplementary to that one if I may: were there any concerns raised during that consultation process? The Hon. E.S. BOURKE Legislative Council Minister for Infrastructure and Transport Minister for Autism Minister for Emergency Services and Correctional Services The Hon. E.S. BOURKE: I understand that the objective of this bill was broadly supported by everyone who was consulted. The Hon. D.G.E. HOOD Legislative Council The Hon. D.G.E. HOOD: That is the first one. The second category is a question regarding stakeholders indicating what impact the legislation might have on registered training organisations and competition within that sector. Was there any commentary provided in that space? The Hon. E.S. BOURKE Legislative Council Minister for Infrastructure and Transport Minister for Autism Minister for Emergency Services and Correctional Services The Hon. E.S. BOURKE: I am advised there was no particular feedback from the RTOs. In some ways, this could encourage engagement between the two sectors, and this bill does not seek to have an impact. The Hon. D.G.E. HOOD Legislative Council The Hon. D.G.E. HOOD: I noted that, in the committee stage in the other place, the Minister for Education, Training and Skills stated that there was advice received that there will be no impact on workforce numbers as a result of this bill. Can I just clarify where that advice comes from and if the government maintains that position? The Hon. E.S. BOURKE Legislative Council Minister for Infrastructure and Transport Minister for Autism Minister for Emergency Services and Correctional Services The Hon. E.S. BOURKE: I understand that TAFE has confirmed this would not impact on TAFE staff numbers. Clause passed. Clauses 2 and 3 passed. Clause 4. The Hon. D.G.E. HOOD Legislative Council The Hon. D.G.E. HOOD: The proposed new definition of technical and further education is based heavily on the definition in the current TAFE SA Act—that is the 2012 act—but it includes new paragraphs (b) and (c) that essentially include in the scope of the definition any kind of post-secondary education and training, as I read it. Correct me if I am wrong there, but that is my take on it. So that would include things like degree programs, even bachelor's, even master's degrees, potentially, or even unaccredited subjects. It is quite broad, I guess is the point I am making. My question is: does this raise the potential for the proposed new definition to be in conflict with the definition of vocational education and training in the National Vocational Education and Training Regulator Act 2011? What is the reason for that change? To me it does appear to present at least some level of conflict. I would be interested in the government's view on that. The Hon. E.S. BOURKE Legislative Council Minister for Infrastructure and Transport Minister for Autism Minister for Emergency Services and Correctional Services The Hon. E.S. BOURKE: From my advice I understand that the definition was broadened but does not have any conflict with the national definition. This definition was sought for on the advice of TAFE SA and their board. There are various definitions across other jurisdictions as well. The Hon. D.G.E. HOOD Legislative Council The Hon. D.G.E. HOOD: So just to be clear, the government sees no conflict in that issue? The Hon. E.S. BOURKE Legislative Council Minister for Infrastructure and Transport Minister for Autism Minister for Emergency Services and Correctional Services The Hon. E.S. BOURKE: I am advised there does not appear to be any conflict. Clause passed. Clause 5. The Hon. D.G.E. HOOD Legislative Council The Hon. D.G.E. HOOD: This is the clause that talks about TAFE's existence as a body corporate. The existing act specifically says it has 'has all the powers of a natural person that are capable of being exercised by a body corporate', yet the proposed bill has amended this. Whilst stating at the outset, in clause 5(1), that 'TAFE SA as established under the TAFE SA Act 2012 continues in existence as a body corporate' the bill differs in stating that TAFE SA is an instrumentality of the Crown and therefore can hold property on behalf of the Crown, for example. To my mind at least—and I look forward to the government's view on this—that is a pretty significant difference in approach. For instance, the difference in holding property as a corporation versus holding property as an instrumentality of the Crown is somewhat significant in terms of what they can do with that land. That was raised with us during our consultation in preparation for the passage of this legislation. I would just like to put that general topic, if I may, to the minister and have a response from the government on how they reconcile that issue. The Hon. E.S. BOURKE Legislative Council Minister for Infrastructure and Transport Minister for Autism Minister for Emergency Services and Correctional Services The Hon. E.S. BOURKE: My understanding is this still makes it a statutory authority. That is, I guess, the purpose of the bill that we have before us today: to really bring this back into what the community expectations are and what they would want, which is to have more of a community focused on people and not for profits. In regard to the terminology that has been provided, my understanding is that it is based on parliamentary counsel's advice and that it still has that primary focus of it being a statutory authority. The Hon. D.G.E. HOOD Legislative Council The Hon. D.G.E. HOOD: I thank the minister for her answer. Just to be crystal clear on that, then, with respect to land in particular and other assets the government's view is that the change in categorisation, if I can put it that way, creates no significant issue? It is merely a change of title, if you like, rather than any sort of practical difference? The Hon. E.S. BOURKE Legislative Council Minister for Infrastructure and Transport Minister for Autism Minister for Emergency Services and Correctional Services The Hon. E.S. BOURKE: My understanding is there is no practical difference. What is the requirement now will remain the requirement. Clause passed. Clause 6. The Hon. D.G.E. HOOD Legislative Council The Hon. D.G.E. HOOD: I assure my colleagues I will not be stopping at every clause, but these are the meat of the bill, to some extent anyway. This clause deals with the function, so it really is the heart and soul of the bill, at some level anyway. There have been substantial proposed changes in this bill from the original TAFE SA Act back in 2012—for instance, the inclusion of the subsection where TAFE SA has the function to provide access to education and training to persons in metropolitan, non-metropolitan, regional and remote areas, yet at the moment my understanding is that TAFE has about 16½-ish per cent of its students in regional areas. We do have amendments to deal with this; I will not labour this point. I just wonder if I can have a general explanation of the government's position on that issue. The Hon. E.S. BOURKE Legislative Council Minister for Infrastructure and Transport Minister for Autism Minister for Emergency Services and Correctional Services The Hon. E.S. BOURKE: You are right, a lot has changed in the 14 years since this was established. This is an act that has been around for some time, and community expectations have changed as well. That is reflected through the consultation that we did to be able to get to the point we are at now, whether through the TAFE SA board or the broader community as well. This is based off of those recommendations. Changes that were put forward by the reference group are reflected in the drafting of this and also in regard to where we are going to get to later on with the regional representation, which is something I know we are both interested in. That is being discussed in the amendments that are coming up in a very short time. Clause passed. Clause 7 passed. Clause 8. The Hon. D.G.E. HOOD Legislative Council The Hon. D.G.E. HOOD: We are dealing here with the clause that talks specifically about ministerial directions. It is surprisingly brief—in my mind, anyway—in the fact that it does not really outline in a specific way what I might expect. For example, there are no clear boundaries given to the minister in these circumstances. I have an amendment which will deal with some of this, as members are no doubt aware. We will be dealing with that in a moment. In my experience in not dissimilar legislation, you would normally see some sort of clarity about what the minister can and cannot do in these circumstances. That is not here. I wonder if the government would like to comment on that. The Hon. E.S. BOURKE Legislative Council Minister for Infrastructure and Transport Minister for Autism Minister for Emergency Services and Correctional Services The Hon. E.S. BOURKE: This clause is included to provide clarity that the minister's powers to direct TAFE SA, which is highlighted in section 6 of the Public Corporations Act 1993, is carried over by the bill. I am just going to leave it at that bit for now. If I need to seek further information I will get that back to you. The Hon. D.G.E. HOOD Legislative Council The Hon. D.G.E. HOOD: Maybe I did not ask my question very clearly in the first attempt, but in the government's estimation what are the limits on those powers, then, as dictated by the bill? The Hon. E.S. BOURKE Legislative Council Minister for Infrastructure and Transport Minister for Autism Minister for Emergency Services and Correctional Services The Hon. E.S. BOURKE: I have been advised that any direction must be in accordance with the principles of administrative law. In practice, this means that a direction must further the objects of the TAFE SA Act, may not direct someone who is forbidden by another act and, based on any other relevant considerations, not be based on irrelevant matters. The Hon. D.G.E. HOOD Legislative Council The Hon. D.G.E. HOOD: To be clear, minister, will those directions be published, for example? They are in writing, I presume. Will they be published? Are they publicly accessible? We are dealing with disallowances a little later in the bill with respect to regulations, but will these directions be regulations and therefore disallowable or not? The Hon. E.S. BOURKE Legislative Council Minister for Infrastructure and Transport Minister for Autism Minister for Emergency Services and Correctional Services The Hon. E.S. BOURKE: I am advised that would be made available in the annual report. The Hon. D.G.E. HOOD Legislative Council The Hon. D.G.E. HOOD: So they are published in the annual report, therefore not regulations and therefore not disallowable? The Hon. E.S. BOURKE Legislative Council Minister for Infrastructure and Transport Minister for Autism Minister for Emergency Services and Correctional Services The Hon. E.S. BOURKE: I am advised that it would not change under this current bill. Clause passed. Clause 9. The Hon. R.A. SIMMS Legislative Council The Hon. R.A. SIMMS: I move: Amendment No 1 [Simms–1]— Page 8, line 24 [clause 9(3)]—After 'Governor' insert: , of whom 1 must be a member of the staff of TAFE SA nominated by the Minister after consultation with the Australian Education Union (SA Branch) and the Public Service Association of SA I think the amendment is fairly self-explanatory. It just ensures that there is a voice at the table for staff of TAFE. My amendment ensures that the relevant staff member is selected in consultation with the relevant union. I think this really is in keeping with the tone of the new bill, which is moving TAFE away from the corporatised model we have seen in the past. I have always believed it is the cobbler who makes the shoe, but it is the person who wears the shoe who knows where it pinches, so having staff on these boards is very valuable. The Hon. E.S. BOURKE Legislative Council Minister for Infrastructure and Transport Minister for Autism Minister for Emergency Services and Correctional Services The Hon. E.S. BOURKE: Just for the ease of the chamber, the government will be supporting both Simms-1 and Simms-2 amendments for very similar reasons. The amendment is consistent with the views expressed by Associate Professor Jeannie Rae, who obviously has done a lot of work getting us to where we are today. Therefore, I am supportive of both of those amendments. The Hon. D.G.E. HOOD Legislative Council The Hon. D.G.E. HOOD: With apologies to the Hon. Mr Simms, the opposition will not be supporting the amendments, but we will not be dividing on them. The Hon. R.A. SIMMS Legislative Council The Hon. R.A. SIMMS: It would be remiss of me not to acknowledge Jeannie Rae for her advocacy on this matter. I understand she is in the gallery today as well, so I do want to thank her for her huge amount of work in pushing this and, indeed, the broader TAFE reforms. The Hon. C. BONAROS Legislative Council The Hon. C. BONAROS: I thought it may assist if I indicate my support for both of the amendments being moved by the Hon. Robert Simms at this point. Amendment carried. The Hon. R.A. SIMMS Legislative Council The Hon. R.A. SIMMS: I move my amendment in an amended form: Page 8, line 24 [clause 9(3)]—After 'Governor' insert: , and 1 must be a person nominated by the Minister after consultation with the United Trades and Labor Council (trading as SA Unions) Again, I think the rationale for this is pretty self-explanatory and consistent with what I outlined earlier. Amendment as amended carried. The Hon. E.S. BOURKE Legislative Council Minister for Infrastructure and Transport Minister for Autism Minister for Emergency Services and Correctional Services The Hon. E.S. BOURKE: I move: Amendment No 1 [InfraTransport–1]— Page 8, after line 35—Insert: (4a)	Without limiting subsection (4), the Minister must, in nominating members for appointment, take reasonable steps to ensure that at least 1 member resides in a rural, regional or remote area of the State. Reflecting on what we have heard recently—and I want to thank the Hon. Dennis Hood for the work he has put into this area as well—we are proposing this as a way of reaching a shared objective of what the Hon. Dennis Hood was also seeking to achieve in regard to having regional representation. This appointment of the member directs the board of TAFE SA to have at least one person who resides in a rural or regional or remote area of the state. The amendment is consistent with one of the six goals informing the Roadmap for the Future of TAFE SA review and what Jeannie Rea has suggested throughout her reporting that there must be a good objective to seek to achieve. I thank again the honourable member for his feedback, and also in regard to the importance of regional community being involved. The Hon. D.G.E. HOOD Legislative Council The Hon. D.G.E. HOOD: I thank the minister for her kind words and the opposition will be supporting the amendment. It is a good compromise position for that reason, so I will not be proceeding with the amendment I have on file. The Hon. R.A. SIMMS Legislative Council The Hon. R.A. SIMMS: I also support the amendment. Isn't it nice when we all work together, Chair? Long may it continue. The Chair Legislative Council The CHAIR: Kumbaya. The Hon. R.A. SIMMS Legislative Council The Hon. R.A. SIMMS: It warms my heart. Kumbaya, indeed. The Hon. C. BONAROS Legislative Council The Hon. C. BONAROS: I want to be part of the kumbaya, too. I indicate my support for the amendment. Amendment carried. The Hon. D.G.E. HOOD Legislative Council The Hon. D.G.E. HOOD: I agree. I think, along with the Hon. Mr Simms, that that is an example of common sense prevailing, so my thanks to all. This clause deals with board appointments, obviously, so my question is about the transparency of those appointments. What will be the criteria? We have some criteria spelled out here, but what will be the criteria? Is there anything else the government can add? Will it be advertised, for example? Is there anything they can provide, some meat on the bones? The Hon. E.S. BOURKE Legislative Council Minister for Infrastructure and Transport Minister for Autism Minister for Emergency Services and Correctional Services The Hon. E.S. BOURKE: I thank the member for his question. As is always with board positions, they are usually advertised externally, but I also have been advised that the minister has put into practice open board advertising, an open board process. I guess this is something he has taken on to seek to achieve, but in general when board positions are being made available they usually are advertised. The Hon. D.G.E. HOOD Legislative Council The Hon. D.G.E. HOOD: I thank the minister. What about conflicts, minister? Particularly, I am thinking of business people who may be on the board who have their own organisation outside of TAFE. How will those conflicts be managed? Does the government foresee that being an issue, and, if so, how would it be managed? The Hon. E.S. BOURKE Legislative Council Minister for Infrastructure and Transport Minister for Autism Minister for Emergency Services and Correctional Services The Hon. E.S. BOURKE: I understand that the bill will reflect the Public Corporations Act, which deals with conflicts of interests. The usual process that is put into place with conflicts of interest with regard to board appointments would follow this one as well. Clause as amended passed. Clauses 10 to 22 passed. Clause 23. The Hon. D.G.E. HOOD Legislative Council The Hon. D.G.E. HOOD: This clause is the one that deals with barring notices, which is quite new and something that the opposition is broadly supportive of. I reflect on the changes we recently made to the education act as well, which were along similar lines and enjoyed our support at that time. We are broadly supportive, but just to pin down some of the details with the minister, what specific conduct does the government have in mind, at least in broad terms, that would be subject to a barring notice? The Hon. E.S. BOURKE Legislative Council Minister for Infrastructure and Transport Minister for Autism Minister for Emergency Services and Correctional Services The Hon. E.S. BOURKE: It is usually there to seek to address behaviour that is directed at staff or teachers that is not able to be addressed through normal processes. I know everyone in this chamber agrees that we want to have not only our students going to a place where they feel safe but particularly our teachers, and this is why these practices are being put in place. We have seen it come into our education system elsewhere. This is making it consistent and making sure that if a teacher or staff member is feeling threatened and it is not covered in their current processes because it is at an escalated point, there is now an opportunity to use this lever as well. The Hon. D.G.E. HOOD Legislative Council The Hon. D.G.E. HOOD: That raises the obvious question of whether the government has any data on how frequent this is. To what extent is this a problem? The Hon. E.S. BOURKE Legislative Council Minister for Infrastructure and Transport Minister for Autism Minister for Emergency Services and Correctional Services The Hon. E.S. BOURKE: It is one of those things where you do not want to be reactive. This enables us to make it consistent across the two different education platforms, being in our school system and now in TAFE. We have seen an unfortunate trend in society in other areas and we want to make sure we have these protections in place now. We have a bill before us that enables us to put them into action. We are using those levers that we know we should be looking at. We have seen it put into our school system and now we can put it into our TAFE system. Clause passed. New clause 23A. The Hon. D.G.E. HOOD Legislative Council The Hon. D.G.E. HOOD: I move: Amendment No 2 [Hood–1]— Page 15, after line 35—After clause 23 insert: 23A—Review of barring notice by Minister (1)	A person who is barred under section 23 for a period exceeding 1 month from TAFE SA grounds may apply to the Minister for a review of the barring notice. (2)	An application under this section must be made in a manner and form determined by the Minister. (3)	The Minister may, on the hearing of an application for a review of a barring notice, confirm, vary or revoke the notice. (4)	A barring notice continues to apply pending a determination by the Minister of an application for review of the notice. This is a pretty straightforward amendment and I think it explains itself. The intention here is to simply have a review mechanism. The Hon. E.S. BOURKE Legislative Council Minister for Infrastructure and Transport Minister for Autism Minister for Emergency Services and Correctional Services The Hon. E.S. BOURKE: I thank again the Hon. Dennis Hood for the work he has put into the amendments he has put forward today. The government will be supporting this for the reasons he has outlined. New clause inserted. Clauses 24 to 27 passed. Clause 28. The Hon. D.G.E. HOOD Legislative Council The Hon. D.G.E. HOOD: Clause 28 deals with the statement of priority, which is quite central to this bill. My question, firstly, is quite a generic one: what was the consultation process for this part of the bill and what timelines did that take place over? The Hon. E.S. BOURKE Legislative Council Minister for Infrastructure and Transport Minister for Autism Minister for Emergency Services and Correctional Services The Hon. E.S. BOURKE: I understand that the review of the act, which commenced almost two years ago, had representatives from TAFE and the reference group, and also the board and the department took on the feedback that was provided. The Hon. D.G.E. HOOD Legislative Council The Hon. D.G.E. HOOD: Minister, is that able to be tabled or is it publicly available? The Hon. E.S. BOURKE Legislative Council Minister for Infrastructure and Transport Minister for Autism Minister for Emergency Services and Correctional Services The Hon. E.S. BOURKE: I understand that statements of priority are usually made available through the annual report. The Hon. D.G.E. HOOD Legislative Council The Hon. D.G.E. HOOD: Last one on this topic. It is a bit hard to pin this down, to be honest, but bear with me. Regarding the potential for conflicts between the statement of priority and TAFE's academic or operational independence, does the government perceive any potential for conflict in that space? The Hon. E.S. BOURKE Legislative Council Minister for Infrastructure and Transport Minister for Autism Minister for Emergency Services and Correctional Services The Hon. E.S. BOURKE: I have been advised that the consultation process and the feedback provided about what makes those priorities would have to be realistic and there would be consultation that would be done with TAFE. I guess everyone wants the same objective here, which is to make this what the community expectations are as an efficient and people-focused institution, but that consultation process would be part of how we determine those outcomes. Clause passed. Clauses 29 to 30 passed. Clause 31. The Hon. D.G.E. HOOD Legislative Council The Hon. D.G.E. HOOD: This is the last line of questioning for me today on this one, and it is really about the dividends. This is, I guess, inherent in the change that is happening with respect to this bill. Is TAFE going to continue to pay dividends in an ongoing way and, if so, how does that work? It seems more complicated now given the potential change. The Hon. E.S. BOURKE Legislative Council Minister for Infrastructure and Transport Minister for Autism Minister for Emergency Services and Correctional Services The Hon. E.S. BOURKE: I have been advised that it continues the current arrangements, and it is a direct copy from the Public Corporations Act, so there will be that level of consistency. Clause passed. Clauses 32 to 33 passed. New clause 34. The Hon. D.G.E. HOOD Legislative Council The Hon. D.G.E. HOOD: I move: Amendment No 3 [Hood–1]— Page 19, after line 32—After clause 33 insert: 34—Review of Act (1)	The Minister must cause a review of the operation of this Act relating to the matters referred to in subsection (2) to be conducted and a report on the review to be prepared and submitted to the Minister. (2)	The review must consider the changes made in relation to TAFE SA as a result of the enactment of this Act and may consider any other matter the Minister considers appropriate. (3)	The review and report must be completed as soon as reasonably practicable after the third anniversary of the commencement of this Act. (4)	The Minister must cause a copy of the report submitted under subsection (1) to be laid before both Houses of Parliament within 6 sitting days after receiving the report. Again, this is fairly self-explanatory. I guess the key part of this is to review the act as soon as reasonably practicable after the third anniversary of the act becoming law. I move that amendment standing in my name, and am happy to take any questions, but I think it is pretty self-explanatory. The Hon. E.S. BOURKE Legislative Council Minister for Infrastructure and Transport Minister for Autism Minister for Emergency Services and Correctional Services The Hon. E.S. BOURKE: It is a concerning day: the government is also supporting this particular amendment. Thank you again for the work that you have put into this. As you have outlined, this will further add to the importance of this bill. New clause inserted. Schedule 1. The Hon. E.S. BOURKE Legislative Council Minister for Infrastructure and Transport Minister for Autism Minister for Emergency Services and Correctional Services The Hon. E.S. BOURKE: I move: Amendment No 2 [InfraTransport–1]— Page 20, lines 27 to 29 [Schedule 1, clause 6(2)]—Delete subclause (2) and substitute: (2)	Subject to this Act, a person holding office as a director under section 8 of the repealed Act immediately before the commencement of this clause will, on the commencement of this clause— (a)	continue to hold office as a director on the same conditions and for the remainder of their term of office; and (b)	be taken to have been appointed under section 9 of this Act. (3)	The following provisions apply in relation to a prescribed appointment of a director: (a)	the requirements relating to the nomination of members set out in section 9(4) and 9(5) of this Act will be taken not to apply in relation to the prescribed appointment; (b)	section 7(3) and (4) of the repealed Act will be taken to apply to the prescribed appointment as if that section had not been repealed; (c)	the prescribed appointment will be taken to be an appointment under section 9 of this Act, (however, to avoid doubt, nothing in this subclause applies in relation to any subsequent appointment or reappointment of the person). (4)	In this clause— prescribed appointment, of a director, means— (a)	the reappointment of a person holding office as a director under section 8 of the repealed Act immediately before the commencement of this clause (being a director whose term of office expires on 14 October 2026); or (b)	the appointment of a member before 14 October 2027 to fill a casual vacancy occurring in the office of a director, and, to avoid doubt, includes the nomination of a person in respect of such an appointment. These are transition provisions for the board. The government amendment continues the office for the current TAFE SA board members and suspends the operations of the bill's appointment criteria until the outermost date of the expiry of current board members, which is 14 October 2027. The effect of this amendment is to apply provisions to prescribed appointments and what that would mean into the future. It is a fairly self-explanatory amendment and one that has been put forward as an additional safeguard. The Hon. D.G.E. HOOD Legislative Council The Hon. D.G.E. HOOD: The opposition agrees; it makes sense and we are happy to support it. Amendment carried; schedule as amended passed. Title passed. Bill reported with amendment. Third Reading Third Reading The Hon. E.S. BOURKE Legislative Council Minister for Infrastructure and Transport Minister for Autism Minister for Emergency Services and Correctional Services The Hon. E.S. BOURKE (Minister for Infrastructure and Transport, Minister for Autism) (11:51): I move: That this bill be now read a third time. The Hon. D.G.E. HOOD Legislative Council The Hon. D.G.E. HOOD (11:51): Very briefly, I think we have just seen legislation working well. It is not a terribly controversial issue so it is probably an easy one, but I did want to place on record my thanks to the government's Chief of Staff and their staff generally, who have been very cooperative throughout this. I had some tricky questions, and said to them very early on that I was going to move amendments to get it more towards the way the opposition would be completely comfortable with. I was impressed they were open to do that, and what we have seen is a good example of that. I just want to place that on the record. Bill read a third time and passed.