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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-02-09 Daily Xml
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TRAINING AND SKILLS DEVELOPMENT (MISCELLANEOUS) AMENDMENT BILL

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. B.V. FINNIGAN (Minister for Industrial Relations, Minister for State/Local Government Relations, Minister for Gambling) (21:43): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

On 30 September 2010, the Government tabled the McCann Report on the Regulation of vocational education and training services for overseas students in South Australia.

On 13 October, a draft Bill to amend the Training and Skills Development Act 2008 was released for public comment

Today the Government is introducing the Training and Skills Development (Miscellaneous) Amendment Bill 2010 that addresses the recommendations for legislative change in the McCann report.

The Government is acting promptly on the McCann recommendations because it takes its responsibility to ensure a high quality vocational education and training sector in South Australia seriously.

Mr Warren McCann, the Commissioner for Public Sector Employment, was asked to review regulatory requirements in this sector following the closure of the Adelaide Pacific International College after its registration to operate was cancelled by the Department of Further Education, Employment, Science and Technology. The Government was particularly concerned that most students enrolled at this College had come from overseas, paid their fees to the College and were not receiving vocational education of a satisfactory standard.

The Government was also concerned that overseas students at other Colleges should not go through the experience of those at the Adelaide Pacific International College. We have a special obligation to students who come to this State from overseas expecting to receive a high quality education.

The quality of our vocational education and training sector is also, of course, very important for South Australians entering the labour market and developing skills for participation in our community. The vocational education and training sector is a diverse mix of training providers including TAFESA, and privately owned, industry owned and community based providers. These training providers deliver publicly funded and privately funded training to clients seeking to enter the workforce, to trainees and apprentices and also to current workers upgrading their skills and qualifications.

In this context, the Bill makes a number of important changes to regulatory arrangements. These measures will not increase the regulatory burden on the majority of training providers that are delivering high quality services to their clients. The Bill will give training providers confidence that regulation of the sector can deal with unscrupulous providers who may seek to gain market advantage by not operating in accordance with regulatory requirements.

The Bill strengthens regulatory powers by enabling the Commission to respond more quickly to apply sanctions where that is warranted by the seriousness and urgency of the matter. The Commission will still, however, be subject to natural justice requirements and must give the provider an opportunity to respond before taking action.

All training providers need to know that, once registered, they are expected to take their obligations seriously and that not complying with their conditions of registration is an offence. The Bill provides a more effective deterrent against contravening the Act by raising the level of penalties for offences.

Industry expects that a person certified as competent by the issue of a qualification is able to carry out his or her duties to industry standard. This is particularly important where the qualification meets the competency requirements for issue of a license in a regulated occupation.

The Bill authorises the Commission to cancel a qualification if it is satisfied that the training provider issuing the qualification was not operating in accordance with standards and the requirements for the qualification have not been met. The Bill authorises a person whose qualification has been cancelled to apply to a court for compensation from the training provider for loss arising from this cancellation. The Bill also makes it an offence for a person to use a qualification that has been cancelled by the Commission.

The Bill introduces a new measure to allow the Minister, on recommendation from the Commission and with the agreement of the training provider, to appoint an administrator to ensure a training provider complies with its regulatory obligations under the Act. This would only occur if there are serious concerns about the provider that it is unable to resolve and it is judged that it is in the students' best interests to maintain the training provider's registration rather than pursuing suspension or cancellation.

It is important to note that an administrator under this Act will not take over full responsibility for the management of the training provider, in particular its financial affairs. An administrator would not be appointed under this Act in the event of insolvency when an administrator would be appointed under Commonwealth law.

The Bill provides a range of new measures to protect consumers, whether they are domestic students or clients or overseas students studying in Australia on a student visa.

If a client suffers a loss from a training provider contravening the Act, the Bill allows a person to make application to a court for compensation. This measure complements the offences under the Act thus reinforcing the message that training providers must operate in accordance with the Act and their conditions of registration.

The Bill enables the Minister, the Training Advocate or the Commission to make a public statement about a training provider, or education and training services, to inform quickly current or potential clients about a matter of concern.

Under this Bill, it is a serious offence for a person to make false or misleading statements about training recognised under this Act. Again, this is a significant deterrent against poor behaviour and poor quality providers.

When a training provider closes or has its registration cancelled by the Commission, students need ready access to their records so that they can resume their training with an alternative provider. The Bill gives powers to authorised officers to inspect, copy and or take all relevant records, including student results.

In summary, this Bill strengthens the regulatory arrangements underpinning the quality of education and training in the tertiary education sector. The Bill demonstrates to all providers registered under the Training and Skills Development Act 2008 their clear obligation to operate in accordance with the Act and their conditions of registration. If they fail to do so, the Government will have the powers it needs to enforce the law, apply the appropriate penalty and support consumers to seek redress through the courts.

I commend the Bill to members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

This clause is formal.

2—Commencement

The measure will come into operation on a day fixed by proclamation.

3—Amendment provisions

This clause is formal.

Part 2—Amendment of Training and Skills Development Act 2008

4—Amendment of section 4—Interpretation

The first amendment inserts a definition of the authorised operations of a registered training provider for the purposes of sections 36 and 36A (see clause 14). The second amendment inserts the definition of associate and is consequential on the amendment of section 37. This definition is currently present in sections 29(4) and 57(3) of the Act and, because the term is also referred to in the substituted section 37 (see clause 15), the definition has been removed from those sections and included in the general interpretation section.

5—Amendment of section 5—Declarations relating to universities and higher education

Under section 5 of the Act, it is an offence for an institution to which a section 5 declaration relates to contravene a condition specified by the Minister in the declaration. This amendment increases the maximum penalty to $10,000 (from $5,000) and the expiation fee to $500 (from $315).

6—Amendment of section 27—Conditions of registration

This amendment makes clear that the offence in section 27(2) refers to a condition of registration of a training provider imposed under the Act and not just by the Commission. The amendment also increases the maximum penalty for contravening such a condition to $10,000 (from $5,000) and increases the expiation fee to $500 (from $315).

7—Amendment of section 28—Variation or cancellation of registration

Currently the Commission may vary or cancel the registration of a training provider only on the application of the provider. This amendment provides that the Commission may also do so of its own motion.

8—Amendment of section 29—Criteria for registration

This amendment removes the definition of associate from section 29 and is consequential on the amendment to section 4 (see clause 4 above) which inserts the definition in section 4 of the Act instead.

9—Amendment of section 31—Conditions of accreditation

This amendment makes clear that the offence in section 31(2) refers to a condition of accreditation of a course imposed under the Act and not just by the Commission. The amendment also increases the maximum penalty for contravening a condition imposed on the accreditation from $5,000 to $10,000, and increases the expiation fee from $315 to $500.

10—Amendment of section 32—Variation or cancellation of accreditation

Currently the Commission may vary or cancel accreditation of a course only on the application of the provider. This amendment provides that the Commission may also do so of its own motion.

11—Amendment of section 34—Duration of registration/accreditation

This clause amends section 34 to clarify that a registration or accreditation is not 'in force' while suspended. This clause also increases the maximum penalty for failing to lodge a return and pay the registration or accreditation fee under this section, from $5,000 to $10,000, and increases the expiation fee from $315 to $500.

12—Amendment of section 35—Grievances

This amendment proposes to insert a new subsection (3) in section 35. That new subsection makes it clear that the Commission must inquire into a matter referred to it under this section and take such action (if any) the Commission thinks fit in the circumstances, including—

discontinuing the inquiry; or

referring the matter and relevant information to the Training Advocate, another registering body or some other person or body, specified by the Commission, for consideration and action; or

issuing proceedings for an alleged contravention of the principal Act or a corresponding law.

13—Amendment of section 36—Inquiries and interventions

This clause amends section 36 of the Act to extend the power of the Commission to intervene following an inquiry into a training provider under this section. The subclauses inserted allow the Commission to require (whether by varying the conditions of, or imposing further conditions on, the provider's registration or otherwise) the affairs of the provider to be audited, specified action to be taken to ensure compliance with the Act, the correction of particular irregularities, or the application of specified management practices. It may also take action under section 37 (such as cancel, suspend or vary the registration or accreditation held by a provider), or such other action as prescribed by the regulations. The Commission may also recommend to the Minister that an administrator be appointed to conduct the operations of the provider that are within the scope of the provider's registration (the provider's authorised operations). Such a recommendation can only be made if the Commission is satisfied as to certain matters.

14—Insertion of section 36A

This clause inserts a new section that deals with the appointment of an administrator by the Minister.

36A—Appointment of administrator

On the Commission's recommendation under section 36, the Minister may, with the agreement of the training provider, appoint an administrator to conduct the authorised operations of the provider. The administrator must be independent of the Minister and is entitled to such remuneration as the Minister determines, to be paid out of the funds of the provider, along with the other costs of the administration. An administrator has all the powers, functions and duties of the provider in relation to the conduct of the provider's authorised operations and must report regularly to the Minister. At the end of his or her appointment, the administrator is required to fully account to the Minister.

15—Substitution of section 37

This clause repeals current section 37 and substitute a new section dealing with the same topic.

37—Commission may cancel, suspend or vary registration or accreditation

New section 37 provides that the Commission may impose or vary a condition of registration or accreditation, or cancel or suspend the registration or accreditation if the holder of the registration or accreditation contravenes this Act or a corresponding law (including a condition) or fails to pay a fee as required under Part 3 of the Act. The Commission may also cancel or suspend the registration of a training provider if it is satisfied that the provider is no longer a fit and proper person. The amendments to this section also clarify the effect of a suspension of registration under section 37 and provide that the Commission may stipulate conditions for restricted operations of the provider during the period of suspension. It is an offence to contravene such conditions or to otherwise continue to operate as a provider.

In addition to the current grounds for cancelling the registration of a training provider (on the basis that South Australia is no longer the provider's principal place of business), the new section also provides that the Commission may cancel the provider's registration if he or she becomes bankrupt or an order for winding up has been made against them in the case of a provider who is a body corporate.

Under the new section, the Commission can, in urgent circumstances, give 24 hours notice of the proposed action, or otherwise where there is no such urgency, must give a minimum of 7 days notice in the case of bankruptcy or winding up, or 14 days in other circumstances. During the various time periods, the Commission must take account of the representations of the holder of the registration or accreditation and must also consult with any interstate registering or accrediting bodies if the provider operates or offers a course in other states or territories. Other subsections replicate current subsections 37(2) and 37(5).

16—Amendment of section 39—Cancellation of qualification or statement of attainment

This clause amends section 39 to allow the Commission to cancel a qualification or statement of attainment on the grounds that the training provider contravened or failed to comply with the standards for registered training providers. This is in addition to the grounds currently provided for by the Act which include where the qualification or statement was issued by mistake or on the basis of false or misleading information. Currently the Commission is required to give both the recipient of the qualification or statement of attainment and the training provider who issued them, 28 days written notice. This clause amends the period of notice to 24 hours in circumstances where the Commission believes it is necessary to act urgently, or in non-urgent circumstances, to give 14 days notice. During this period, the Commission must take into account any representations of the training provider or holder of the qualification or statement of attainment.

Inserted subsection (4) provides that a court of competent jurisdiction may order the training provider to pay compensation as determined by the court to a person who has had his or her qualification or certificate of attainment cancelled under this provision.

New subsection (5) provides that it is an offence (with a penalty of $2,500) for a person to hold out that he or she is the holder of a qualification or statement of attainment if the qualification or statement of attainment has been cancelled under this section. However, there is a defence if the defendant proves that he or she did not know that the qualification or statement of attainment had been so cancelled.

17—Substitution of section 41

This clause deletes current section 41, which relates to the provision of information by the Commission to others in the course of its functions under the Act, and substitutes a new section.

41—Public warning statements

New section 41 provides that the Minister or the Commission may, if satisfied that it is in the public interest to do so, make a public statement identifying and giving warnings or information about either or both of the following:

the delivery or provision of education and training or other services in an unsatisfactory manner and training providers who deliver or provide those services;

any other matter that adversely affects or may adversely affect the interests of persons in connection with their interaction with training providers.

The Training Advocate may, if satisfied that it is in the public interest to do so, make a public statement identifying and giving warnings or information about a matter that adversely affects or may adversely affect the interests of persons in connection with their interaction with training providers.

The new section also provides that the Crown will not incur any liability for such a statement made in good faith by the Minister, Commission or Training Advocate and provides protection to a person publishing any such statement.

18—Amendment of section 42—Appeal to District Court

This amendment ensures that there is no appeal to the District Court available against a decision of the Commission to suspend or cancel registration or accreditation on the grounds that a training provider has become bankrupt or a winding up order has been made against the provider.

19—Amendment of section 43—Offences relating to registration and issuing of qualifications

This clause amends the penalties for the offences in section 43 (which include falsely claiming to be a registered training provider or issuing qualifications or certificates of attainment). The maximum penalties are increased from $5,000 to $20,000 and a maximum penalty for bodies corporate of $100,000 is also inserted.

20—Amendment of section 44—Offences relating to universities, degrees etc

This clause amends the penalties for the offences in section 44 (which include falsely claiming to be a university, university college or specialised university etc, or falsely offering a course to which a degree or graduate qualification is to be conferred). The maximum penalties are increased from $5,000 to $20,000 and a maximum penalty for corporate bodies of $100,000 is also inserted.

21—Insertion of section 44A and Part 3 Division 7

This clause inserts the following provisions:

44A—Offence to make false or misleading statements

This new section makes it an offence for a person to make a false and misleading statement in any information provided to a student, or prospective student, about the delivery or provision of education and training or other services. The penalty for such offence is $20,000 for a natural person and $100,000 for a body corporate.

Division 7—Orders for compensation

44B—Orders for compensation

This new section provides that a court of competent jurisdiction may, if satisfied that a person has suffered or is likely to suffer loss or damage because of a contravention of the Act, make orders compensating the person or to prevent or reduce the extent of the loss or damage. Examples of the types of orders that may be made are for the payment of the amount of the loss or damage, or for avoiding or varying a contract, refunding money or returning property or directing the delivery or provision of specified education or training or other services.

22—Amendment of section 57—Criteria for registration

This amendment deletes the definition of associate from section 57 and is consequential on the amendment to section 4 (see clause 4 above) which inserts the definition in section 4 of the Act instead.

23—Insertion of section 72A

This amendment proposes to insert new section 72A after section 72.

72A—Confidentiality of information

This new section provides that it is an offence (carrying a penalty of $20,000) if a person divulges or communicates information acquired by reason of being, or having been, employed or engaged in, or in connection with, the administration of this Act, other than—

with the consent of the person to whom the information relates; or

in connection with the administration of this Act; or

to a member of the police force of this State or of the Commonwealth or another State or a Territory; or

to a person concerned in the administration of a corresponding law; or

for the purposes of legal proceedings.

24—Amendment of section 73—Other powers of Commission, Training Advocate etc

Under current section 73, an authorised person may inspect, examine or copy a record or document required to be kept under the Act. The amendment has the effect of allowing an authorised person to examine, copy or take extracts from any record or document, and also take any record or document and seize and remove anything that may constitute evidence of an offence. An authorised person may also take photographs, films or video recordings.

25—Amendment of section 75—False or misleading information

This clause increases the maximum penalty for providing false or misleading information under the Act from $5,000 to $10,000.

26—Insertion of sections 75A and 75B

This clause inserts the following new provisions to assist with the prosecution of a body corporate:

75A—Imputation of conduct or state of mind of officer etc

This new section provides that, for the purposes of proceedings for an offence against the Act, the conduct and state of mind of an officer, employee or agent of a body corporate who is acting within their authority, will be imputed to that body corporate. A similar provision applies to an employee or agent of a natural person. This provision does not affect the personal liability of the officer, employee or agent. The clause also provides that it is a defence where conduct or state of mind is imputed under this clause to prove that the alleged contravention was not to due to any failure of the defendant to take all reasonable and practicable measures to prevent the contravention.

75B—Offences by bodies corporate and employees

This new section provides that if a body corporate is found guilty of an offence, the directors and managers of the body corporate will also be guilty of the offence and liable for the same penalty as for a natural person. It is a defence if the defendant proves he or she took reasonable precautions and exercised due diligence to prevent the commission of the offence by the body corporate. A similar provision applies in relation to where an employee is found guilty of an offence. In this case an employer is liable to the same penalty. There is a defence if the employer shows that he or she had no knowledge of the actual offence or took reasonable precautions and exercised due diligence to prevent the commission of the offence by the employee.

Debate adjourned on motion of Hon. D.W. Ridgway.

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