HANSARD
SITTING CALENDAR
SEARCH
LIVE BROADCAST
Hansard Dynamic Member Index
House of Assembly - Fifty-Second Parliament, First Session (52-1)
2011-02-08 Daily Xml
Contents
Pdf Xml

TRAINING AND SKILLS DEVELOPMENT (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading (resumed on motion).

Ms CHAPMAN (Bragg) (16:05): I rise to speak on the Training and Skills Development (Miscellaneous) Amendment Bill. This bill essentially seeks to protect the interests of foreign and local students and, apparently, to ensure a satisfactory standard for vocational education through increased powers to the minister and commission and through increased penalties for noncompliance.

Very briefly, the history of this matter is that in 2009 there was a COAG agreement that we have a national approach to our VET regulation. I will refer to that a little later, but suffice to say it seems all the wisdom is in Canberra—although horse flu, coming into Australia under the supervision of AQIS, should tell us that that is not necessarily reliable (namely, that commonwealth departments do it better). There had been general agreement that there be a national regulator, so on 26 November 2010 federal bills were introduced to facilitate that.

What is extraordinary is that this bill was introduced a couple of days beforehand. The minister would have well known that the federal process was underway, that in fact a bill was about to be introduced in the federal parliament to implement what had been an agreement around the country. What is concerning is that, although the McCann report had been prepared subsequent to the humiliating act of the government in exposing the Adelaide Pacific International College for conducting its operations in a manner that ultimately required it to be closed down mid-last year, when they had this inquiry, the minister, in the full knowledge that the federal program, which was supposed to give us a better system, was underway, then saw fit to rush in the state legislation.

That was necessary to effectively restore confidence and ensure there was no negative impact on our international student situation (and, again, I will come to that in a moment). Remember, this bill substantially increases penalties—in fact, it doubles a number of them—and expands powers, giving extra ministerial powers and the like, to be able to effectively scrutinise and regulate the industry.

It is fair to say that vocational training and higher education have always had a national perspective and involvement in regulation of the industry generally. The international student sector, which accounts for more than 6,500 local jobs in this state, is the state's largest service sector export and the fourth largest overall export, according to the Department of Foreign Affairs and Trade's most recent financial year estimates. There were only three exports that stood ahead of international education. International students pay full fees for all their courses; they are not subsidised by government.

This is under the mandated federal legislation, under the Education Services for Overseas Students Act, which is administered by Australian Education International, and the AEI is the international arm of the federal Department of Education, Employment and Workplace Relations. So, we have a structure at present that sets a number of quality standards, which are national, and which apply to us, and which give the state government, through its state department, the responsibility and power to act and to regulate, and, where appropriate, impose conditions, and, where appropriate, suspend, and, where appropriate, shut down completely.

It is not as though there have not been circumstances in this state where that has happened before. I am not here to make any comment specifically about what happened with Adelaide Pacific International College but, suffice to say, from the information that has been provided to us, this was a dodgy operation and one on which the minister's department ultimately acted and probably made the right decisions in the end.

This has happened before. In fact, I notice a former minister for higher education is present. I formerly shadowed this area of responsibility when I first came into the parliament, and I can recall an occasion when she, too, was called upon to make some decisions, quickly, about the alleged conduct of a private provider in South Australia. She did so, following the proper courses, and I think it was universally accepted, certainly on our side of politics, that that was a proper decision that she made when she ultimately acted to not just suspend but to deregulate the operator. That provider was shut down, and in fact my recollection is that she did at the time ensure that those current students enrolled in that provider's service were able to complete their education through other services which her department provided.

She did it properly, and she did it within the current laws, and she did it in a manner which, I think, would behove the current minister to have followed. He does not need Warren McCann, he does not need this act, to have acted in a circumstance to protect us against the conduct of a private operator, who at any time, after following the proper courses, a minister can shut down. It does not stop the minister making a commitment at any time, and in those circumstances he or she will make provision to ensure that the students, or those about to enrol in a service that has operated, are properly provided for and accommodated in other education facilities.

Again, if I recall correctly, under our current law, the current minister did indicate to this parliament when he reported on this matter that that is exactly what he would do to make sure that they were not at a loss. So introducing legal capacities or financial support or measures by which students who might be enrolled and agreed by the practices that are no longer acceptable or of a quality standard are window dressing for what is required to be done here.

What this bill is really about, is not rushing in to make it look like South Australia is actually jumping before the COAG agreement and the federal structure implementation—although it raises some questions about why the minister is not over there saying: ‘Look, we have a problem in South Australia. I would like to strengthen up a few things, so can you bring the progress of this matter federally forward a little bit quicker, if this is going to be such a wonderful panacea of resolution and protection to South Australia that we transfer it to a federal regulator and we need to appoint it.'

I say that the law is there; it is able to be acted upon. The humiliation and embarrassment of this particular college operating, quite possibly for longer but exposed under the regime at this point, is one which has prompted this, but this is not the answer. Notwithstanding statements by the minister to this house that the wonderful business of international education in this state is humming along beautifully the issue here has been exposed. That is not his fault personally, because the international student market where people pay fully for their students to travel to another destination in the world has been hit by a number of factors. The United States, when the World Trade Centre towers exploded, not surprisingly took a big hit on their international student market from England and Europe at the time.

Australia, with the exchange rates and the more fragile economic circumstances of countries of origin, particularly in Europe through the global financial crisis, obviously has an impact on the capacity for those countries. In our instance, we are affected by the domestic circumstances that occur in countries that provide us with our greatest number of students, and they are China, India, Malaysia, Korea, Vietnam, Saudi Arabia, Hong Kong, Japan, Singapore and Indonesia in that order. What is important to appreciate here is that very substantially our source market for international students is China, India, Malaysia and Korea. Vietnam is improving. But what the minister continues to tell us in the parliament is that everything is humming along beautifully.

In fact, late last year we had a magnificent presentation from him that the universities were confident in their continued growth of the numbers of students coming and that, while there had been some publicity around the income of universities across the country having their income threatened by a demise in university enrolments of international students, he was here to give us comfort and everything was going swimmingly.

But the reality is that, except for having enrolments prescribed as what would be coming up for 2009-10, if he looked at 2011, he would have reported to this parliament that we are in potential trouble. Our major institutions are facing a very difficult period in securing and maintaining the high level of dependency they have on the income from international students. Already last year we saw a 15 per cent drop in enrolments for 2011 in one of our major universities here in South Australia. The University of Adelaide, which I will mention for this purpose, has confirmed to me in writing that while they have been encouraged by their past position and their share of the market they have budgeted this year for 2011:

For prudential reasons, the University's Budget for next year has been based on the assumption that there will be a small drop in our international numbers next year.

They know what the real position is, and the real question is: why is this happening? Obviously international events, events that occur in countries of origin and the exchange rate, which is very important, have an effect given the strength of the Australian dollar.

But I thought the minister's statement today during question time was rather curious seeing we are debating this bill on which he tried to defend the presentation made by the shadow minister. It is actually very serious that the decisions in 2009 of the Rudd (then Gillard) government changed the rules in respect of access of students into our country. International students in most other countries—US, UK, New Zealand, etc.—paid a bond of about $20,000.

We had of $25,000 bond. That is money you have to pay upfront in an account to secure the period of time you are going to be here to cover fees, etc. The cost was about $550 and it took about 90 days, I am told, to process an application. This was when Prime Minister Gillard was one of the ministers in charge of education. We have a situation now where the application time for a student is 12 to 24 months, with a higher level of integrity checks on these students.

There are fees now which require not just $100,000 but, in some instances, $144,000 that must be secured in a bond before they even get to open the door; and the fees, of course, are totally out of proportion relative to other countries. Is it any wonder that students who have all the world to choose are choosing educational institutions which are quicker, cheaper and which have far fewer hurdles to jump over? That is obvious.

Denise von Wald came to visit me last year, because I requested a briefing on other matters, which she outlined as CEO of Education Adelaide, a fine cooperative group between local and state governments and the Adelaide City Council particularly. I think she has been a fine activist and advocate for higher education, particularly developing the international market, and she was able to confirm that these impediments at the federal government level were a serious impact.

She did not have to say that; it was pretty obvious in the national press the fear and worry of other universities. But, to her credit, she agreed that one of the important things to do was to get over there (this is last year) to Canberra and sort this out. Minister Evans, I think, is partially responsible for some of this. The immigration decisions are, of course, the responsibility of minister Chris Bowen. Both ministers have areas of responsibility which are having a direct impact on the decisions they have either made or maintained.

The minister told us today what he has done about it. He has had a meeting with a delegation from South Australia—apparently in this last month. That is good; that is a good start. But what he told us today is that the minister responsible has 'flagged his desire to consider'. Big deal! Let's be real here. We must have some action on this, not 'flagged his desire to consider'. What piffle. This is not going to resolve our problem. Our problem is serious, it is real and it is obvious.

If the minister were serious about reassuring the international student market, particularly the parents, he would be making sure that he actually meets not just with the South Australian delegation but all of the representatives of higher education in this country on the doorstep of the Prime Minister and/or her delegates in relation to these decisions and makes this happen. It is completely unacceptable.

Even the Premier (who used to march in here every day when John Howard was prime minister) would say, 'I've written a letter to the Prime Minister,' about everything—the River Murray, you name it. Everything was going to be fixed by a letter, of course. But at least he had written to him. Four months after I get this advice of the importance of doing this, the minister finally goes and has a talk to one of the federal ministers, and what does he get? He gets a 'flagged his desire to consider'. Really!

We are never going to resolve this problem. This bill will not resolve this problem. This is a serious matter. This is a major industry in this state. It is a very considerable financial aspect for the viability of the institutions of this state—not just the universities and the VET schools and the like but also it flows onto the commitments that parents make when they bring or send their children here for an education in our public or private high school sector, and that is significant.

We want them to go onto institutions here. We want them to undertake study in areas of skills that we might need, etc., or return to their country of origin to provide those services in their own economies and communities. But the health of our community, the financial viability of our economy and, really, the future of our state relies on these valuable industries, and to serve us up this piece of legislation instead of making sure that the federal changes happen in a hurry and remedy the very faults that are currently an impediment to the advancement of this industry and the viability of our institutions is what has to happen, not this bill.

Mr MARSHALL (Norwood) (16:24): It is my great pleasure to rise in the house today and speak on the Training and Skills Development (Miscellaneous) Amendment Bill. I certainly support the Liberal Party's position on this bill, which is to ultimately support the bill. However, I think it is important to raise a number of issues regarding this government's performance in the area of vocational education and training.

This is most pertinent on the first sitting day for a very long period of time. We know this government has no interest in any form of scrutiny in the parliament. In fact, in the past 15 months we have had 31 days of question time, and the very first day back after a very long break, the government get to ask themselves a series of Dorothy Dixers. What is one of the very first questions they ask themselves to try and boast to the assembled media that are here on this important day of the opening of the new parliamentary year? They ask about their government's performance in the area of vocational education and training. What a scam! What a scam this is.

We heard the minister for vocational educational and training, the newly-anointed Treasurer for South Australia, talk about the importance of this very special sector in South Australia and, indeed, boast about his performance and this government's performance in this area since they came to power. Well, let me tell you tell you the facts.

The simple facts of the matter are that when this government came to power they put a strategic objective in place, and that objective was to double South Australia's percentage of the national market for international students. How have they gone? Do you know, they do not like that metric that they set for themselves. In fact, in their review at the moment of the state strategic plan they are looking to change that. Why are they looking to change that? Because they failed; it is as simple as that. They have failed.

South Australia has 5.4 per cent of the national share of international students. The way that this government talks, you might think that they have 10, 20 or 30 per cent of this really important growing industry in Australia. No, 5.4 per cent. Correct me if I am wrong, but that is actually smaller than our pro rata entitlements in South Australia. So, far from being a shining light in this area, we are the proverbial dunce in the class in terms of attracting international students to this state.

'Why is this the case?' you may ask yourself. The members for Bragg and Unley have already spoken a lot about vocational education and training, but I put it to you like this: this state government has finite resources. We have heard all about those lately; they have been cutting everything left, right and centre. So, we have got finite resources, but how do we apply those finite resources in terms of vocational educational and training? We basically spend our money on a range of our Premier's pet projects.

Rather than putting money into established, well-regarded international institutions, based and domiciled here, rooted here in South Australia, what do they do? The Premier, as per usual, loves to jet around the world, shake hands with people from other lands, and he does a deal and spends our money on Carnegie Mellon, Cranfield and University College London. The member for Unley has been very effective as a shadow minister in this area and has exposed the complete and utter bankruptcy of the government and their performance in this area.

There is no doubt that this industry does face some challenges, and we do commend this bill for addressing some of those problems that are facing our industry. There is no doubt that the industry is facing some troubles, but when we look at this state government's performance we do not look at it in absolute terms, because of a declining market and $100,000 per student, having to put their money up-front, as the minister rattled on about in the house today; we look at it in terms of how we perform relative to every other state that has that Australian dollar and every other state that has those exact same conditions.

How do we go? It is a failure: 5.4 per cent of the national market. It is a complete and utter failure by this government. The government should certainly look at how they spend their finite resources, and stop waxing lyrical and boasting about their performance in this area and start telling us the facts.

The Hon. J.J. SNELLING (Playford—Treasurer, Minister for Employment, Training and Further Education) (16:30): Many issues were raised by members of the opposition. Unfortunately, very few of them have anything to do with the bill before us. Nonetheless, in the spirit of fraternity and bipartisanship, I will try and address some of the issues which they have raised. If you might indulge me, ma'am, for straying away from the bill, because some of these issues are not actually covered in the bill. Can I say at the outset, what this bill seeks to do is to strengthen the consumer protection features of the bill, to make sure that students in colleges can be reassured of the quality of the education that they are getting, and to enable them to have redress should a college not be meeting the standards that are set.

If I might address the remarks that have been made about international student numbers in South Australia: the fact is that, as I said during question time, compared to what is happening interstate, our international student numbers have been remarkably resilient which, given all the challenges that we face in this area—challenges because of the changed visa arrangements for students who want to come here; the strength of the Australian dollar; and visa turnaround times, which is another considerable obstacle to overseas students, particularly when you compare Australia to our international competitors—those factors make the United States, the United Kingdom and Canada very attractive to international students who are considering where to undertake their education.

The collapse of the Adelaide Pacific International College, I guess, was what prompted me to ask Warren McCann to undertake a review in the way that we regulate these private VET training providers—in fact, not just private VET training providers because these regulations cover TAFE, as well. What came out of APIC, and the lesson that we learnt, was how difficult the current legislative provisions made it for the regulator to quickly intervene in a timely way. There were significant delays of 28 days, from memory, you had to give notice, and you had to give the training provider an opportunity to respond. It made it very difficult for the regulator to intervene to take action against the college in a timely way, and that is what we are trying to address through this bill, as well as the many other provisions.

When this legislation was originally introduced, the private VET market was very, very different from what it is now. It has changed an enormous amount in those few years. It is now a much more fluid market, there are far more entrants so there are far more private VET providers, and they tend to be much smaller organisations than perhaps you would have expected in the past when this legislation was first drafted. So, that is why we are proposing changes to the legislation to really bring the legislation up to date, to enable it to give the regulator the powers that the regulator needs to be able to intervene in a timely manner, and with appropriate penalties as well. That is another important feature of the bill.

I think the member for Unley raised a question about whether, as a result of investigations with APIC, matters had been referred to the police and whether that had been referred to the department of immigration. That is the case, and I mentioned that in a ministerial statement last year, that matters had been referred to both the police and to the federal Department of Immigration and Citizenship.

The issue raised about the national regulator, and questions about why are we doing this when we are moving towards a national regulator are good questions. The reason why I felt it important that we move quickly was because, particularly at the time, there was uncertainty about the national regulator, and we were still waiting on New South Wales to pass its referral legislation which will be the trigger for the national legislation to be able to come into effect. That had not happened at that stage. I did not want to sit on my hands because, should we face similar difficulties with other training providers that we did with APIC, the opposition would quite rightly be getting up in question time, asking me question after question about what I was doing.

If I simply said, 'Well, I'm not doing anything because I'm waiting for the national regulator,' I would quite rightly be condemned by the opposition and the public. I was not prepared to sit on my hands and wait for the national regulator. It was important that we took action quickly and introduced this legislation as quickly as we could, and that we brought that legislation up to date so we could deal with the new—I hate the word—paradigm in the vocational training sector in South Australia.

The other point to make about the national regulator is that it actually provides a point of negotiation with the federal government. So, there is the capacity for the provisions in this bill to actually sit side by side. They will not necessarily be completely trumped by the national legislation. There is the possibility there, subject to negotiation with the commonwealth, for some of these provisions to sit side by side with the national regulations.

I hope that answers the issues that were raised by members. I would like to thank my staff, particularly the staff of my department, for their help and the speedy drafting of the bill, and also the staff in my office for their assistance.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Ms CHAPMAN: I have a general question, so I thought it best that I ask it in clause 1. Minister, to facilitate the implementation of the amendments proposed, is it necessary to prepare any amended or new regulations and, if so, have draft regulations been prepared and how quickly can they be available in order to implement these new clauses that we need to deal with?

The Hon. J.J. SNELLING: No.

Ms CHAPMAN: Do I take it, therefore, minister, that you are saying, no, it is not necessary to have any other regulatory change?

The Hon. J.J. SNELLING: No, there are no regulatory changes arising from this legislation.

Ms CHAPMAN: Once this bill has passed the upper house, if that is the will of the upper house, this can immediately progress to the Governor for proclamation; there is no impediment. Is there any other impediment in its being proclaimed, so that the new regime of penalties and powers—if I can put in those two categories—could be effective within days of its progress through the other place?

The Hon. J.J. SNELLING: I do not envisage that there would be any delay, other than what you would normally expect with a piece of legislation like this. The department will have to make some changes. There are resource implications for my department in terms of implementing these changes, and they will have to be worked through, so you would expect some. It will not happen the day after, but it will happen. It will not happen overnight, but it will happen, but there would not be any delay that would be in any way exceptional.

Ms CHAPMAN: The reason I am asking this question is that the pressing nature of this is for the reasons you have outlined and that, really, we cannot wait for the new regime to be set up at the federal level. Not surprisingly, when there is a new regime at a different level of government that does take some time, and they have to do their regulations. Even if each of the divisions or states continued to carry out the function, and they had clear notice of what their job was going to be and had the personnel in place already doing the regulatory work, that would take a little bit of time, I agree.

It seems to me that surely there must be some estimate of time as to the implementation of these that has been provided to you so that you could make the decision about why we would deal with extra resources, put in budget submissions for those and have all the changes within the department that you have referred to, whatever they might be, to actually affect this, given that it is all going to be redundant at some future date when the federal legislation is passed, which might be this year.

The Hon. J.J. SNELLING: This will certainly come into effect as quickly as possible. I am very keen for this legislation to come into effect as soon as practicable. As I have already indicated to the committee, I do not anticipate that there would be any delay that would be any different from any other bill which makes passage through this chamber.

Ms CHAPMAN: I had a similar answer from a minister who did not give any indication. Apparently he had not sought at the time any indication from his department as to how long it might take to implement, but it related to the domestic violence bill. That was passed two years ago, I think, as an urgent piece of legislation to protect women and children in the state, amongst other things, and came some years after a barrister had provided a report to the government.

It concerns me that, when I hear from a minister of the urgency of the need for commitment to apply and the expectation that it will be delivered, we still have an answer such as you do not expect any inordinate delay. I do not know what is inordinate delay with this government because there are plenty of bills that are sitting around, even when they are supposed to be urgent, that still have not been implemented.

Sometimes it is because there is difficulty over legislation—that is, the preparation of regulatory subordinate legislation—and sometimes it is apparently because we need to train people up, as we did on the child protection legislation. Sometimes I am told, for example, that with domestic violence it is to do with a need to train the police and the money to do it, and obviously you have to convince the Treasurer to do it, but now that you are the Treasurer, of course, you could deal with that tomorrow. I do not know what the answer is.

I do not know what the answer is. But I will have to be convinced that the minister—if he hasn't got any idea at the moment about how quickly this is going to be implemented—It puzzles me then as to why he has made a decision to press ahead with this if he can't have some assurances from his own department about (a) what has to be done, (b) what it is going to cost and that will be covered, and (c) that it will be implemented properly, before he even made the decision to do all this, rather than actually encourage his federal colleagues to hurry up with the COAG negotiated agreement.

However, now that he is alert to that, I would ask the minister to at the very least, between the houses of this bill, find out the answer to those three questions so that our colleagues in the other place are fully aware of the importance of progressing this bill promptly if that is what is necessary.

The Hon. J.J. SNELLING: If the member for Bragg brings nothing else to this parliament, she does bring a tremendous talent for splitting hairs. It is quite extraordinary. I stand in awe of her ability to do it. We have moved with this legislation extraordinarily quickly. The McCann review had a very tight deadline in terms of it reporting back. The legislation was very quickly drafted and then released for consultation. The advice arising from the consultation was taken into account, and here we are today, first day back, introducing this legislation.

The points that the member for Bragg makes about other issues I don't think apply here because the fact is that there is a directorate in my department which already exists and which is already resourced to do this, and is basically ready to go to implement this legislation as soon as it makes passage to the legislation.

I am not going to make any promises or try to give timelines. The simple fact is that we have moved extraordinarily quickly on this legislation and, in fact, I would like to thank the public servants in my department and in parliamentary counsel who have enabled us to progress as quickly with this legislation as we have. It is a very, very high priority for me to see this legislation pass through the parliament and proclaimed and implemented as quickly as possible.

Clause passed.

Clauses 2 to 4 passed.

Clause 5.

Mr PISONI: This amendment refers to fines for offences by universities and higher education providers, and I would like to ask the minister how they are monitored. What is the process of monitoring those organisations to ensure that they are not actually committing these offences?

The Hon. J.J. SNELLING: The department constantly monitors not only VET providers but also higher education providers. Every five years, education providers have to be reregistered, so there is a process which enables monitoring to ensure that the provider is doing the right thing, and, as well as that, individual courses are accredited by the regulator as well, and so there is a regular process there.

Mr PISONI: Do Cranfield University, Carnegie Mellon University and University College London fit in that same criteria or is there a special set of criteria for monitoring them?

The Hon. J.J. SNELLING: That is the case for University College London and for Carnegie Mellon University. It is not the case for Cranfield because Cranfield is not offering Australian courses to Australian students.

Mr PISONI: So are students who attend Cranfield University protected by this amendment to the bill?

The Hon. J.J. SNELLING: I am advised the way Cranfield works is it operates in collaboration with the existing three universities, so it is covered by the accreditation of the three universities that it operates in partnership with.

Mr PISONI: Do Carnegie Mellon University, Cranfield University and University College London present financial reports or annual reports to your department?

The Hon. J.J. SNELLING: They provide a regulatory annual report to the department, but not a financial annual report.

Clause passed.

Clause 6 passed.

Clause 7.

Mr PISONI: This amendment provides that a commission may also cancel the registration of a training provider on its own motion. Can you explain to the house just what the process is?

The Hon. J.J. SNELLING: The way the existing legislation works is that the regulator only has power to intervene when it is undertaking an existing regulatory action, so when it is accrediting or going through the normal process the powers of the commission to intervene are only actually at those points. What this does is change that, so of its own motion, if the regulator believes there is a problem going on with a particular provider, then the regulator can, of its own motion, intervene and take action.

Mr PISONI: Would that be after some formal process, and what would that formal process be?

The Hon. J.J. SNELLING: Yes, and before it took action, there would have to be some sort of due diligence undertaken.

Mr PISONI: So, if this amendment had been in place for the APIC situation, what would have been done differently? How much sooner would the college have been deregistered, for example?

The Hon. J.J. SNELLING: This provision would not have related to APIC. What the regulator did with APIC was under a different power under the act.

Clause passed.

Clauses 8 to 13 passed.

Clause 14.

Mr PISONI: Section 36A refers to the appointment of an administrator. The explanation tells us that the administrator must be independent of the minister. What is the process in appointing the administrator? What is the obligation to demonstrate the independence?

The Hon. J.J. SNELLING: Apparently there are guidelines being formulated at the moment about the sorts of things that would apply. The normal sort of provisions would apply. For example, an administrator would not be able to have any conflict of interest. Those are the sorts of things which would be taken into account by the minister in making a determination.

Mr PISONI: What would be considered a conflict of interest? For example, would membership of a particular union be a conflict of interest or would membership of an opposing or competitive organisation be a conflict of interest?

The Hon. J.J. SNELLING: Certainly if it was a competitor organisation that the administrator had some association with, then yes, of course, that would be a conflict of interest. With regard to union membership, for example, if the RTO for which the administrator was being appointed for had some particular role to play in the training of members of that union, potentially these are the sorts of things you have to take into account on a case-by-case basis.

Mr PISONI: Is it intended that the administrator is an individual or a corporation such as an accounting firm or a number of other organisations that might conduct that type of business on a contract basis?

The Hon. J.J. SNELLING: No, it would be an individual who has a proven record of being able to manage organisations. They may come from an accounting firm or a firm that specialises in these sorts of things, but it will not be the firm who would be the administrator, it would be the individual person who would be appointed.

Mr PISONI: In relation to the commission cancelling the registration of a provider, there does not appear to be a definition of 'bankrupt' or 'winding up order'. Can you clarify this terminology? Is it 'declared bankruptcy' or 'in receivership'? Who will determine the bankruptcy?

The Hon. J.J. SNELLING: There is just a standard definition of 'bankruptcy' and a standard definition of 'winding up'. It is not a point of contention. There is a well-recognised legal norm when it applies to the definition of bankruptcy.

Mr PISONI: Is there any way of dealing with any potential detrimental effect on enrolled students of registered providers being cancelled at short notice?

The CHAIR: Excuse me. I would just remind the member for Unley that, really, he is meant to have only about three questions on these clauses.

Mr PISONI: That was my last one.

The CHAIR: Is it? Excellent, because you are averaging about five or six, but my raging generosity allows you to have them.

Mr PISONI: I thought it was an average.

The Hon. J.J. SNELLING: There is the normal tuition assurance scheme which applies to students, and this would be a trigger for that to come into play.

Clause passed.

Clause 15.

Mr PISONI: In talking to stakeholders, it has been pointed out that the terminology 'cancellation', 'qualification' or 'statement of attainment' is a little illogical, and that you cannot cancel a qualification but rather you can cancel the attainment of a qualification or the certificate/parchment, etc. What measures will be in place to ensure that legitimate students are not disadvantaged? The Australian Council of Private Education and Training (ACPET) has pointed out that the cancellation of qualification attainment etc., can seriously hinder the TAS operation. What measures are in place to safeguard against this?

The Hon. J.J. SNELLING: I point out that the provision to cancel a qualification already exists under the act. This is not a new provision. This simply affects the powers of the regulator to cancel, but there already exists that power to cancel a qualification. The member for Unley is incorrect. There are circumstances where you would cancel a qualification, and that is where the qualification has been issued. So, for example, a training provider may provide someone with a qualification which is then found subsequently to be dodgy (for the want of a better word), and, in that case, the regulator would want to use the provisions of this section to cancel the qualification.

Mr PISONI: Were any qualifications obtained at ACPET cancelled for those students who attended?

The Hon. J.J. SNELLING: None has been cancelled. What is happening is that people have been issued qualifications as an assessment being done to see that they have the requisite skills to warrant the qualification, and the qualification, I think, has been re-issued. So, in those circumstances where they do have the skills that are necessary for the qualification, the qualification is being re-issued under the powers of the commission.

Mr PISONI: Are they re-assessed?

The Hon. J.J. SNELLING: Yes.

Clause passed.

Clause 16 passed.

Clause 17.

Mr PISONI: Public warning statements. This is supported, of course, in terms of allowing the regulator to list RTOs that have been sanctioned, but how public will the statements be, what is the process and, I suppose, how is the publication of the sanctions handled?

The Hon. J.J. SNELLING: What this provision is about is, essentially, a consumer protection warning similar to current powers under, I think, our consumer protection laws where, if there is a determination that students might be at risk, a public warning can be made relating to a particular provider.

Mr PISONI: How is that public warning made? Is it an advertisement, a press release or a ministerial statement?

Mr Marshall: I think it will be a Twitter.

Mr PISONI: A Twitter, yes.

The Hon. J.J. SNELLING: Whatever is the best way to get that information out to students. It might be by way of press release; indeed, it might be a Twitter; whatever is the best way of getting the message to students or people who might be affected.

Mr PISONI: Is there any right of reply, either before or after they are named?

The Hon. J.J. SNELLING: I presume a provider that thought that it had been unfairly accused would have every opportunity to go to the media or issue its own statement refuting whatever had been put. APIC did exactly that: they held a press conference refuting what I had said publicly about them.

Clause passed.

Clauses 18 to 20 passed.

Clause 21.

Mr PISONI: In relation to orders for compensation, with regard to compensation being awarded, how does this measure mesh with legislative measures for compensation under state consumer provisions and federal corporations law?

International students are currently protected under tuition assurance provisions of the Education Services for Overseas Students Act at the federal level where they are placed in another college to complete their studies without loss of fees and, if this is not possible, they are reimbursed from the fund. I assume that this further provision is for losses such as equipment, materials or additional charges that might not be covered by the TAS.

The Hon. J.J. SNELLING: It would be whatever the court deems appropriate compensation in the circumstances. So, in a court handing down a decision about a particular provider, this section gives the court, on top of that, the discretion to award compensation to anyone who might have been affected by the provider.

Mr PISONI: Is that something they will have to initiate themselves as students, and are they covered if the institution is no longer trading in Australia?

The Hon. J.J. SNELLING: The institution would have to be registered with an Australian principal to gain its initial registration. Even an overseas provider has to have an Australian principal in order to be registered here in South Australia. The only circumstances to which I think the member for Unley might be alluding is where bankruptcy is involved, in which case the people for whom compensation had been awarded would become creditors the in normal circumstances.

Mr PISONI: So that part of the amendment bill is only good if the company is still trading, basically. If it is no longer trading in Australia, then there is no other recourse, or there is no call or obligation on others to make good those losses.

The Hon. J.J. SNELLING: Bankruptcy provisions would apply when an individual or a company is declared bankrupt. An administrator is then appointed and creditors are allocated what they are owed as much as possible from whatever is left of the entity, so those provisions would kick in in the event of the bankruptcy of a provider.

Mr PISONI: The Tuition Assurance Scheme actually goes beyond that. I cannot remember the name of the company but, when a Japanese-owned English college closed—I think it was early last year—it no longer had any representation in Australia, yet those students were managed and losses were minimised because they were actually able to move to other South Australian colleges to complete their studies. My understanding is that section 44B aims for additional compensation to be made available; however, it is not in the same model as the TAS. There has to actually be an identity to sue, if you like, or claim from in order for this to work.

The Hon. J.J. SNELLING: I point out that the Tuition Assurance Scheme applies only to international students. Domestic students do not qualify to get assistance under TAS. Essentially, what the member for Unley says is correct, but that is the same with anything: if there is no money to recover, you cannot get it. Presumably the organisation would have assets or whatever that would be liquidated, and those funds would be allocated to creditors using the usual formulas. People awarded compensation under this provision would be creditors.

Mr PISONI: Just one final question on this clause, minister. Are you aware if any of the APIC students transferred under the Tuition Assurance Scheme have been forced to pay additional fees that they would not expect to pay if the TAS scheme were working as it was intended, in other words, paying to complete courses at a new institution that APIC had already been paid for?

The Hon. J.J. SNELLING: I am not aware of any students who have been affected in the way the member for Unley said.

Clause passed.

Clauses 22 and 23 passed.

Clause 24.

Mr PISONI: I refer to section 73—Other powers. Will the Australian Council of Private Education and Training, which has advised me that it has been involved in administering the Tertiary Assistance Scheme, have access to records when there will be a need to place a student elsewhere?

The Hon. J.J. SNELLING: Those records are made available to ACPET, or whoever the tuition assurance scheme administrator is.

Clause passed.

Clause 25 passed.

Clause 26.

Mr PISONI: I refer to new section 75B—Offences by bodies and corporate employees. There appears to be a reverse onus of proof where, basically, the employer or the employee appear to be guilty of an offence until they prove otherwise. Are you able to explain whether that is the case and why you have chosen that method, if it is so?

The Hon. J.J. SNELLING: The way this provision would work is, firstly, there would be a prosecution against the body corporate, and if that offence was proven then individual employees may be liable for prosecution themselves. So, there would have to be an offence proved against the body corporate before this provision could come into play.

Mr PISONI: Subsection (3) provides that 'if an employee is guilty of an offence under this act, the employer is liable to the same penalty as prescribed for the principal offence', which is the opposite to what you have just said.

The Hon. J.J. SNELLING: This provision works both ways. The regulator might take action against the body corporate, and if the body corporate is found guilty then the directors become individually liable to prosecution. Likewise it could work the other way; an individual employee may have action taken against them. In those circumstances the body corporate would find itself potentially liable to prosecution in the event of the offence being proved. Until an offence is proved, whether it be against the body corporate or whether it be against an individual employee, this provision does not come into play.

Mr PISONI: Looking at parts 3 and 4 of each of those together, I read it as being if an employee is guilty then automatically the employer is liable for the same penalty. So, from what I can gather, it is not up to the regulator to prove that the employer was liable or was involved in the process; it is actually up to the employer to prove that they were not involved or did not know that it had happened. I read it as being a reverse onus of proof; one guilty party automatically ties in everyone else in that organisation, unless they can prove otherwise.

The Hon. J.J. SNELLING: Apparently there is something called vicarious liability. Perhaps the member for Bragg may be able to shed more light on it than I can, but apparently these sorts of provisions are typical of consumer protection law.

Ms CHAPMAN: So, if you are taking over from Kevin you are now vicariously liable for what he did?

The Hon. J.J. SNELLING: Indeed! As I said, the circumstances where they would apply are either where an action might be taken against a body corporate or an action might be taken against an individual employee. If the employee is found guilty of the offence, then the employer is automatically vicariously liable for the actions of the employee, and those are the defences the employer would use to say that the employer had no knowledge of the offence or took reasonable precautions to try to prevent the commission of the offence.

I am also advised that this needs to be read in conjunction with section 75A, which talks about the imputation or conduct of the state of mind. The provisions in that subclause would also affect how this would be applied.

Mr PISONI: So if an employer took action against an employee because they were concerned about their conduct, that could lead them to be in this position. Are they protected under the Industrial Relations Act?

The Hon. J.J. SNELLING: That would be reasonable precautions and that would be due diligence, yes.

Clause passed.

Title passed.

Bill reported without amendment.

Third Reading

The Hon. J.J. SNELLING (Playford—Treasurer, Minister for Employment, Training and Further Education) (17:28): I move:

That this bill be now read a third time.

I would like to thank the officers of my department, in particular Ms Adrienne Nieuwenhuis, who has worked incredibly hard to enable this legislation to be quickly drafted. I thank the opposition for its support, and I also thank Mr Warren McCann, whose report and recommendations are the impetus for this piece of legislation.

Bill read a third time and passed.

PARLIAMENTARY BUSINESS
MEMBERS
GET INVOLVED
ABOUT PARLIAMENT
VISIT
LEGISLATIVE COUNCIL
HOUSE OF ASSEMBLY
CONTACT