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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-03-08 Daily Xml
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TRAINING AND SKILLS DEVELOPMENT (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 24 February 2011.)

The Hon. B.V. FINNIGAN (Minister for Industrial Relations, Minister for State/Local Government Relations, Minister for Gambling) (19:48): In concluding the debate, I thank honourable members for their contribution and for their indications of support for the bill, recognising the contribution it will make to ensuring we have an appropriate regulatory regime in this state for tertiary education and training.

Honourable members will note the provisions in the bill are not designed to constrain registered providers who are operating in compliance with national standards and providing quality services to their clients. However, the bill makes it clear that there are serious repercussions if standards are not met. The bill strengthens protection for consumers, who can seek redress if they suffer loss from a provider that is not delivering services to the required standards.

Honourable members who spoke in support of the bill sought further information on a number of matters. I am able to provide responses to these. The Hon. Tammy Franks stated that the government did not provide a copy of the final bill to those who commented on the draft. I understand the bill was approved by cabinet and introduced into parliament in the same week. The Treasurer issued a press release regarding the bill on the day he brought it into parliament.

In finalising the bill, the government took into account the views of those who commented on the draft bill. I note that the Hon. Mr Hood acknowledged this in his speech. The government acknowledges and thanks those who responded to the invitation to comment on the draft bill. The Hon. Mr Hood stated it would be good policy to have a complaint service for international students that properly caters for culturally and linguistically diverse people. The Hon. Tammy Franks raised a similar concern about this and the employment rights and conditions for overseas students while studying in this state.

The Training Advocate, which is an initiative of this government and who was appointed by the Governor as an independent source of advice to clients of the tertiary education sector, provides these services to international and Australian students. The functions of the Training Advocate are set out in the Training and Skills Development Act. I am advised that in 2010 the Training Advocate assisted some 620 international students from 28 different countries, the majority of whom were from India.

The Training Advocate uses a range of services to ensure that support is tailored and culturally appropriate, and they include interpreting and translating services through the state government Interpreting and Translating Centre—

The PRESIDENT: Order! The Hon. Mr Wade will take his seat and change his gym. The Hon. Mr Finnigan.

The Hon. B.V. FINNIGAN: Thank you, Mr President. The Training Advocate uses a range of services to ensure that support is tailored and culturally appropriate, and they include interpreting and translating services through the state government Interpreting and Translating Centre, Auslan interpreters and telephone typewriters to support the hearing impaired, a front counter hearing system phone for the hearing impaired, and consultation at an alternative location, including rural or remote areas. These services are provided at no cost to the student.

The Office of the Training Advocate is currently involved in two tailored programs to assist international students as new workers in South Australia. These programs, developed with the cooperation of relevant and non-government agencies, are designed to assist students understand their rights and obligations in the workplace and to guide them to available information and advice. In addition, the Australian Council of Private Education hosts information sessions for international students on these matters.

The Hon. Mr Hood raised questions about the audits of the Adelaide Pacific College. These audits were underway prior to the matter being brought to the attention of the public through The Advertiser and were not initiated as a result of its articles on the matter. Previous audits of the college conducted with industry specialists confirm that the college had the relevant facilities and equipment for the qualifications they had applied to deliver; however, later audits conducted in conjunction with the Department of Immigration and Citizenship identified fraudulent and inappropriate record-keeping practices that led to the delegate in the Department of Further Education, Employment, Science and Technology cancelling their registration.

A review of regulatory arrangements in South Australia by the Commissioner for Public Sector Employment, commissioned by the Minister for Employment, Training and Further Education and tabled in this parliament, identified measures, including those in this bill, that this government is now taking to reduce the likelihood of such instances recurring.

The honourable member asked what protections there were for international students if an organisation failed. All providers registered to deliver education to international students must have approved tuition protection arrangements in place. In most cases providers are members of an approved overseas student tuition assurance scheme. The largest of these is operated by the Australian Council for Private Education and Training. If a provider collapses and is not able to refund fees to students, the overseas student tuition assurance scheme will offer each student a place in an equivalent or similar course at no additional cost to the student. If the scheme is not able to place a student, they may make application for a refund of course fees from the nationally administered tuition assurance fund.

The Baird review of legislative and regulatory arrangements for overseas students, commissioned by the commonwealth government, has recommended improvements to these consumer protection arrangements. The commonwealth government is currently consulting on proposals for change.

This bill has been introduced at a time when we are moving, as agreed by the Council of Australian Governments, towards the establishment of a national regulator for the vocational education and training sector and a national regulator for the higher education sector (Tertiary Education Quality Standards Agency). The government supports both of these national initiatives.

Given that legislation to establish each of these bodies has not yet been passed in the national parliament, it is not possible to say exactly when legislation will be brought into this parliament to give the national VET regulator jurisdiction in South Australia. Subject to passage of federal legislation, we anticipate that it may happen towards the end of this year. Events in other jurisdictions may also impact on its timing.

The establishment of the Tertiary Education Quality Standards Agency and the regulation of higher education do not require a referral of powers from states and territories, as the commonwealth is applying its powers under corporations law. The states are negotiating with the commonwealth to ensure that their legislation does not prevent a state from establishing or disestablishing a university. In the event that the state did take such action, it would need to comply with any national regulatory requirements in force at that time. The Hon. Mr Lucas sought information on the similarity of provisions in this bill and those in the commonwealth bill to establish the national VET regulator. I can confirm that there is a high level of correspondence between the two.

There are two areas where sections of the Training and Skills Development (Miscellaneous) Amendment Bill are not directly covered in the national VET regulator bill. They are section 36A, appointment of an administrator, and section 44B, orders for compensation. However, the national VET regulator bill does provide for a state to negotiate to confer a requirement within a state act on the regulator through part 8, division 2, conferral of functions and powers by state law. In relation to compensation for consumers who have suffered loss from a provider, state and commonwealth consumer protection legislation will continue to apply, although not specifically covered in the national VET regulator bill. The government will, therefore, retain these provisions in the bill.

The honourable member requested information on the number of staff in the department dedicated to functions that will be conducted by these two national bodies. At present, I am advised that there are 23 full-time equivalents (31 persons) working in the department on the regulation of VET sector providers, and six full-time equivalents (10 persons) in the regulation of higher education providers. Negotiations about the terms and conditions of state government staff who may wish to transfer to the national VET regulator are currently in hand.

The honourable member raised concerns about how an applicant is assessed to be fit and proper if the term is not defined in the act. This term has been in the act since 2008 and assessments of applications for registration have been made according to criteria approved by the Training and Skills Commission. It is not a common occurrence to refuse an application on these grounds but when it does occur the delegate informs the applicant in writing of their reasons for the decision. The applicant can appeal the decision to the District Court.

The term 'fit and proper' is commonly used in a range of state and commonwealth legislation without definition. This is because its meaning is circumstantial. The Education Services for Overseas Students Act referred to by the honourable member is an exception. The term is not defined in draft legislation for the national VET regulator or the TEQSA but, rather, it is anticipated to be expressed within legislative instruments. The honourable member also raised a question about the legal recourse for a person if a public statement made under the act is not made in good faith. The public statement provisions in this bill are consistent with those in sections 91A and 91B of the South Australian Fair Trading Act. The term 'good faith' is a commonly understood and applied term within legislation. A person who act acts in good faith is well-intentioned and acts without malice.

The Public Sector Act provides overarching immunity provisions for public officials carrying out their official powers or functions with liability arising from the exercise of these attaching to the crown. However, section 74 does not limit the crown or a public sector agency in respect of an act or omission of a person not in good faith. If a person believes they have been wronged by a public statement made under the act their legal recourse will be through a defamation claim made in the courts. The bill provides further tests to safeguard statements made under this section. The bill requires the Minister, the Commission or Training Advocate to be satisfied that the public statement they make is in the public interest relevant to the operations of the provider regulated under the act and/or relevant to persons being adversely affected by their interaction with a registered training provider.

The Hon. Tammy Franks asked whether an interstate campus of a training provider registered in another state is covered by South Australian VET legislation. I understand that the answer is no. The registration and regulation of training providers is a national scheme such that providers registered in one state can operate in any other state and territory. If there are concerns about an interstate provider's operations in this state these concerns are taken up with the registering body in the state where the provider is based and holds its registration. Once the national VET regulator comes into operation all training providers delivering across more than one jurisdiction will be regulated by that body.

In conclusion, I thank honourable members for their contribution and expressions of support for this bill. I commend the bill to the council.

Bill read a second time.

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