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

Committee Stage

In committee.

Clause 1.

The Hon. R.I. LUCAS: I thank the minister for the answers he gave in reply to the second reading. One or two of the issues might be more easily pursued at clause 1 rather than when dealing with the very many related clauses in committee. Can I pursue the issue of the activities of the government department and current departmental officers in relation to an organisation known as Carrick that provides training nationally but also has up to 80 to 100 students, I understand, here in North Terrace in Adelaide? Is the minister in a position to indicate whether the department has taken any action in relation to the activities of that provider and the interests of the students who are concerned?

The Hon. B.V. FINNIGAN: I am not sure that this is necessarily the right forum to be addressing a specific case, but I am advised that the provider the honourable member refers to is registered in Victoria, so is registered in South Australia through mutual recognition. I understand there are some inquiries being made in Victoria in relation to that provider but I am not able to comment further on that at this time.

The Hon. R.I. LUCAS: The reason I raised the issue of that provider, which has been publicly reported on in national and local media, is to try to understand how the government currently pursues those sorts of issues and how, under this legislation, that might be different. So I wonder whether the minister can indicate how, under the proposals that we are being asked to support this afternoon, either the government's powers or investigations in relation to a provider like that will be different from those that currently exist?

The Hon. B.V. FINNIGAN: My advice is that there would be no difference in relation to that particular matter. Under the mutual recognition arrangements, if there was a change to the status of a provider in another jurisdiction that would then apply in South Australia.

The Hon. R.I. LUCAS: I will pursue this further under clause 17 but, as I read it, under this legislation we are being asked to give additional powers to the minister or the commission to make public warning statements about various providers and to give a level of protection to the minister and the commission in making those particular statements.

My question is: in relation to this particular provider, has any public warning statement been given by the minister or the commission and, if not, why not? Secondly, if a statement was issued, what are the problems confronting the minister or the commission under the current legislation in terms of issuing a public warning statement about a particular provider?

The Hon. B.V. FINNIGAN: I am advised that this proposed provision or the existing legislation would be relevant to providers that are registered under the South Australian act. The provider to which the honourable member refers, I understand, is registered in Victoria; therefore, the public warning statement provisions in the proposed legislation would not apply. Similarly, there would be no action taken by South Australian authorities in relation to this provider because it is registered interstate. I am further advised that we do have obligations to the students in relation to the Tuition Assurance Scheme, and we do that through the ESOS Act, which is the relevant legislation.

The Hon. R.I. LUCAS: I understand the minister's latter comment, or latter advice; that is, once there is a problem, there are arrangements which are meant to come into play to assist students after there is a problem. The public warning statement provision (as I said, I will go into that in greater detail when we get to clause 17) is there, as I read it, to issue a warning about a particular provider prior to the students getting themselves into a problem. It is prevention rather than trying to solve the problems afterwards.

Under clause 17, what the minister is saying is that under the proposed legislation if the minister here is convinced that a particular provider is providing a bad product and is potentially placing those students in a position where they are wasting their money and not getting value for money, or placing their investment at a risk, because it is registered interstate the minister would not be able to make any public warning about that particular issue. I will pursue that under clause 17.

Can I clarify whether the minister is saying that that is the current situation, that the minister cannot issue any warning in relation to a course which, like this one, might provide up to 100 students with training at considerable cost and that the current legislation does not allow the minister or the commission to make a public statement in relation to any concerns they have?

The Hon. B.V. FINNIGAN: I am advised that, under proposed section 41, if the minister was satisfied that it was warranted, he or she would be able to make a public warning statement in relation to a provider that was registered in another jurisdiction, provided that the due diligence was done to ensure that it was warranted.

The Hon. R.I. LUCAS: Mr Chairman, that is completely opposite to the advice the minister gave to the previous question. So, can I clarify: is the minister, in that statement, now saying that his earlier advice to the committee was incorrect and the latter advice is the accurate advice?

The Hon. B.V. FINNIGAN: What I indicated was that the purpose of this legislation is principally about South Australian registered providers. In that context, the purpose of the proposed section in relation to public warning statements is to enable warnings being given by the minister or the commission in relation to providers registered in South Australia. However, in the event the honourable member has asked about (that is, if there is grave concern about an interstate registered provider, would the minister be able to exercise their power in this section), I am advised that they would be able to, but that is not a matter that has been tested.

The Hon. R.I. LUCAS: I will not pursue it, but I think the Hansard record will show that that particular answer was the opposite to the advice the minister gave the committee when I first put the question. Anyway, I will pursue that during clause 17. The only other general issue in relation to clause 1 is that, having read the second reading explanation of the minister in both houses, one of the intentions is to provide quality training opportunities for Australians, in particular, South Australians, and another one is to provide some degree of consumer protection for people who are investing money in terms of where you go.

As we look at this committee stage of the legislation, where does a consumer or student go to find out who is accredited to provide a particular course? I have been referred to the website of something called the National Training Information Service. Can the minister indicate what the government endorses as being the appropriate website or forum to go to? If I am a consumer or a student and I want to do a particular qualification, where do I go to find out who is accredited to provide that particular course?

The Hon. B.V. FINNIGAN: I am advised that it is the National Training Information Service. If you go to its website, that will tell you who is accredited.

The Hon. R.I. LUCAS: Just to wrap that up, I ask the minister: having gone to that, will that website or service clearly indicate which particular providers are accredited (if that is the right word) to provide a particular course? Is it the government's policy position that students who are wanting to undertake a qualification should go to that website and go only to someone shown on that website to be accredited to provide that course?

The Hon. B.V. FINNIGAN: Of course, students, in considering whether they wish to undertake a particular course of study, need to consider quite a range of matters. Certainly, they would want to be satisfied that the course they are undertaking is properly accredited and will lead to a recognised qualification or what have you, depending on what the area is. I am advised that, as I said, the National Training Information System indicates who the accredited and registered training organisations are on a national basis, so that would be the best place for a student to go to ensure that the provider they wish to attend or be educated by is one that is accredited.

I would say that it would be worth any student considering a course of study making sure that they obtain that information, but that is not to say that they are not able to obtain information from websites or from the providers themselves, which may well indicate what accreditation they have. So it is really a matter for the individual student as to what due diligence they undertake, but it would certainly be the view of the government that they should satisfy themselves that the provider they are being educated or trained by is properly accredited and registered. The principal way in which they can do that easily is through the National Training Information System.

The Hon. R.I. LUCAS: I think the minister would be aware that some students and their families potentially invest up to tens of thousands of dollars in a particular course, and they obviously want to feel confident that what they are being provided with is what they need and what will help them gain employment in the field that they are pursuing.

In relation to the bill we have before us this afternoon, and the various clauses and provisions that we are about to go through, if a particular provider says that it is providing a particular qualification when it is not accredited under the NTIS, will that be an offence under the clauses we are about to approve or not approve during the committee stage? That is, if someone is a provider and they say, 'Look, I'm going to provide such-and-such a course,' and when you go to the NTIS they are not accredited, is that an offence, or is that going to be an offence under this legislation we are debating this afternoon?

The Hon. B.V. FINNIGAN: Can I just clarify with the honourable member whether he is asking whether it would be an offence to offer courses without having the necessary accreditation, or would it be an offence to make a representation that you do have the official accreditation?

The Hon. R.I. LUCAS: I think the minister would understand that they are both potentially related; that is, if a course has a particular designation or qualification and you say, as a provider, that you are going to provide this particular course—'Bakery III' or whatever it might happen to be—and you are not accredited as a provider of Bakery III, is that an offence under the legislation that we are looking at this afternoon?

The Hon. B.V. FINNIGAN: As the honourable member indicated, they may well coincide. Certainly, if it is the latter, it is going to be the former as well—they are misrepresenting not only the course they are offering but also the accreditation they have for it. I am advised that under section 43 of the current Training and Skills Development Act it would be an offence and that the penalties for those offences would increase under clause (19) of the proposed amending act.

Clause passed.

Clauses 2 to 7 passed.

Clause 8

The Hon. R.I. LUCAS: I move:

Page 4, after line 7—Before the current contents of clause 8 (now to be designated as subclause (2)) insert:

(1) Section 29(2)(a)—delete paragraph (a) and substitute:

(a) the prior conduct of the person or an associate of the person (whether in this State or elsewhere), including (for example) such of the following matters as may be relevant:

(i) whether the person or an associate of the person has been convicted of a criminal offence;

(ii) whether the person or an associate of the person has been refused registration as a training provider;

(iii) whether registration held by the person or an associate of the person has been suspended or cancelled;

(iv) whether a condition of registration of the person or an associate of the person has been imposed or varied as a result of contravention of this Act or a corresponding law or a condition of the registration;

(v) whether—

(A) in the case of a natural person—the person or an associate of the person has become bankrupt or has applied to take the benefit of a law for the relief of insolvent debtors;

(B) in the case of a body corporate—a winding-up order has been made in respect of the person or an associate of the person;

(vi) whether the person or an associate of the person has ever been disqualified from managing corporations under Chapter 2D Part 2D.6 of the Corporations Act 2001 of the Commonwealth; and

I think it is relatively straightforward in terms of what appears to be a long amendment. As I outlined in my second reading speech, I think it covers a relatively simple principle, and that is that the lobby that represents the training providers has put the view to us that, under appropriate and relevant federal legislation, there is a definition of 'fit and proper person'.

The minister's response from the second reading is that, 'Well, there hasn't been a definition of "fit and proper person"; that has been something according to criteria approved by the Training and Skills Commission.' I will seek some advice from the minister as to exactly what those criteria are, but the view put to me by the providers is that we are moving (in this legislation and in the national legislation, but certainly in this legislation) into a much more rigorous regime. The government is saying, 'Look, we are going to crack down on some of the providers who haven't been doing the right thing. What has occurred in the past has been a set of circumstances; we have now had some problems. Look out now, this is a whole new tougher regime.'

The private providers—and I think they represent over 100 of the training providers—are saying, 'Look, we understand why that occurred, because there have been examples nationally where people have not done the right thing by the students who are studying in their institutions.' They are saying, 'Okay; we understand why we are going down this path, but we have concerns. You are saying you are going to be tougher, more rigorous, etc.; we understand that.' Therefore, issues which in the past they have been happy to live with under perhaps a less onerous regime now obviously take on greater importance for them.

How will regulatory authorities interpret relatively simple phrases like 'fit and proper person'? What they are saying is that, in recent times, as a result of these sorts of discussions, under that national legislation—the Education Services For Overseas Students Act, which is one of the major pieces of legislation governing the operations of overseas students and training providers—it was accepted that some definition of 'fit and proper person' ought to be incorporated into the legislation.

As I said in the second reading and as I have said to anyone who has raised this issue with me, I am personally not locked into the current precise structure of the definition that parliamentary counsel have very kindly outlined for us, based on the national legislation. If the government, or indeed any other members, had a particular concern with any particular drafting of the proposed amendment, certainly from our viewpoint we are prepared to contemplate working together to see whether we can come up with something that is acceptable to the majority in relation to this. However, this is, as asked of parliamentary counsel, based on the national precedent under the Education Services For Overseas Students Act.

As I said, we are not locked into the current words. I understand the government is going to oppose the provision, from the minister's response to the second reading, but it is the opposition's view that the plea from the private training providers is a reasonable one. They came to us originally with a whole series of concerns, amendments and changes. We worked through a number of those and, to be fair to the government, in the final draft some of their issues were resolved, but there are a number of remaining ones. The one that appeared to me anyway to be a reasonable proposition, based on federal legislation, was that there be some definition.

What the minister is saying is, 'Look; you don't need it in the legislation because we have got a definition, except that it's private. We've got our own definition.' The minister doesn't say 'definition': he says 'registration has been made according to criteria approved by the Training and Skills Commission'. What the minister is saying is that, privately and secretly from those whose businesses are potentially affected by this, the Training and Skills Commission has its own definition and its own criteria of how it will interpret 'fit and proper person' and it makes those judgements. What the private training providers are saying is 'Well, you've got this definition that you've used but we don't know what it is, so how are we to be fairly judged as to whether we have or haven't met it?'

How do they, as organisations, in terms of peer review and talking with their own colleagues and members, say 'Hold on; you're not going to meet this particular provision because the definition says that.' They cannot do that at the moment, because the Training and Skills Commission has its own secret (or private) definition, and does not share that with people who want to be registered or who want to be able to provide training.

If I am a private training provider, for example, and I am looking for someone to invest in my business, I come to the Hon. Mr Hood and say, 'I would like you to put your money into this particular training college.' If he was bankrupted six years ago or he had done something else (and you might like to keep that secret, Hon. Mr Hood) and I knew that the definition was that, then clearly I would not go to the Hon. Mr Hood in the first place, or the Hon. Mr Hood would say, 'I would love to invest in this business—it is a motza to make some money and provide a good service—but I don't meet that particular definition.'

We could potentially save a lot of problems in relation to this regulatory authority, this regime, in terms of providing a good process for students and providers, if we actually shared that sort of information. I would not waste my time going to speak to the Hon. Mr Hood about investing in the business; I would go to the Hon. Mr Darley, because I know that he is as pure as the driven snow and does not have any of those things that would be a problem under the fit and proper person provisions. If you do not know the criteria against which you will be judged, if it is a secret or private criteria, if the commission says, 'No; you don't meet it, but we aren't going to tell you what it is that you don't meet', I think that is unreasonable.

Look on the other hand; people are investing millions of dollars. I have spoken to a couple of people involved in companies who are investing millions of dollars. Some of them are what you might call at the end of the continuum, which is relatively cheap in terms of their upfront costs—office space, classrooms and a few people, that sort of course—but there are others who have to invest significant amounts of money, particularly if they provide hospitality courses and those sorts of courses. They are making a significant upfront investment. They ought to be able to go to an investor and say, 'I would like you to put in $5 million (or whatever it is) for a 50 per cent share in this business, up front', and have a reasonable level of assurance that they have met the criteria.

It also protects against the arbitrariness of a regulator or commissioner (or whatever) who, for whatever reason, does not like the person, or where they come from, or what they look like and just decides to use the fit and proper person criteria, the secret criteria, to keep that particular person, or those people, out of being a private training provider. It provides a protection and means, for example, that if there is a decision they are unhappy with they are able to take some action.

For those reasons, I think this is a reasonable proposition from the training providers, and I urge members to support it to at least keep it alive. If it passes the Legislative Council, the government will know that the majority view in this council is that something along this line should be supported. If the government then wants to come back with an amended version of the fit and proper person, we can negotiate. If it gets defeated at this stage it dies and there is no prospect at all. If it passes at this stage, the government realises that it will need to negotiate with the majority in the council to come up with some provision acceptable to the regulatory authorities, the government and the parliament.

The Hon. B.V. FINNIGAN: I will respond to the last point first. I do not think that adding clauses to legislation should be considered a bargaining tactic. In my view, you should not support amendments to legislation unless you think they are the right clauses that should be in it when it reaches the statute books. This is an example where the honourable member is trying to be too specific as to what a particular term means and enshrining it in the act rather than leaving it to usual processes and the common law to determine.

In particular, I take issue with the honourable member's assertion that there is some Training and Skills Commission conclave where it is all very secret and no-one knows what is decided. There are guidelines, which I am advised are available to those seeking to get registration or to registered providers against which these assessments are made, and the commission has to explain its decisions and why they are made.

The government opposes the amendment because we believe that 'fit and proper' does not need to be defined in statute the way the honourable member proposes. It has been in the act since 2008, and assessments of whether applicants are fit and proper have been made according to criteria and processes approved by the Training and Skills Commission. The commission is responsible for its actions and accountable for its decisions, and applicants who have been aggrieved by a decision of the commission have appropriate avenues to seek recourse.

Often these terms are quite commonly used in the common law. To define someone as being or needing to be a fit and proper person in order to hold a licence or whatever is quite common, and it needs to be considered in the context of individual legislation. The government does not believe it is necessary to enshrine a definition of fit and proper in legislation. The current arrangements give the commission responsibility for specifying the matters it considers to be relevant to fit and proper, and we consider that to be an effective and responsive approach.

As I indicated, I am advised that the Training and Skills Commission has guidelines for registering, renewing or varying registration and determining conditions, which define the nature of the evidence to be considered when considering 'fit and proper' and include:

Proven serious breaches of consumer legislation; criminal conviction relevant to the scope and scale of the RTO; business failure; registration status previously cancelled and/or refused by registering authority; and, significant and serious issues sustained through substantiated complaints that indicate that the applicant may not be able to provide the service in accordance with the relevant standards.

It is the government's view that there is already a guideline the commission has published, and it is not at all a secret. Those seeking registration I am advised are able to access the guidelines, which indicate the sort of matters that are considered when making a decision about whether a person is fit and proper. In many instances they are quite similar to some of the things the honourable member indicates in his amendment.

This is one of those situations where a decision is principally about whether something needs to be specified clearly in legislation or whether we are able to trust the structures set up under the act, such as the commission, which is obviously a well defined structure with appeal processes and processes that they have to go through to make these decisions, and whether we are happy to let the commission produce guidelines it is able to use to define what fit and proper is, which they are able to modify should circumstances warrant.

The difficulty always of putting things in legislation is that, while it means they are there to be easily found, it can mean also that if some change is required it requires legislative amendment and that, as we know, is not always a very timely response.

So, the government indicates that it opposes the amendment because it believes that the current system, where the commission has guidelines that are available to applicants or providers that take into account the significant important factors in deciding whether or not someone is fit and proper, is the most appropriate system.

The Hon. D.G.E. HOOD: I rise briefly to indicate our support for the amendment. It is a fairly long amendment but fairly straightforward, outlining specifically what the requirements are for a fit and proper person. I see no harm in that. I think the example the Hon. Mr Lucas gave was a valid one and we support the amendment.

The Hon. T.A. FRANKS: I indicate that the Greens will be supporting this amendment. We see it as an excellent contribution to this bill.

Amendment carried; clause as amended passed.

Clauses 9 to 13 passed.

Clause 14.

The Hon. R.I. LUCAS: In my reply to the second reading explanation, I asked a question as to what were the differences between this bill and the proposed national regulatory bill. The minister's response was that there were two or three clauses where there was a difference: the appointment of an administrator. I ask the minister to indicate in what respect this is different; that is, under the national proposal is there not to be a suggestion that you can appoint an administrator, and what is the reason the government believes that in South Australia we need to appoint an administrator, if that is the difference, when the national bodies do not believe that we need to?

The Hon. B.V. FINNIGAN: I am advised that the national VET regulator bill does not cover matters pertaining to consumer protection. That is a question that will still be dealt with by individual jurisdictions. That is why we have this provision giving power to the minister to appoint an administrator.

The Hon. R.I. LUCAS: Is the minister's advice that the appointment of an administrator is a consumer protection provision, and for those reasons the national legislation will not touch something like the appointment of an administrator?

The Hon. B.V. FINNIGAN: Essentially, the reason I characterised it as a consumer protection measure is that it is about protecting students and ensuring that they get the best quality service and training. An administrator is not intended to be appointed because a provider is on the verge of financial collapse, or something of that nature. The appointment of an administrator would be to ensure that the standards of the provider are brought up to the required level and thus protect the students, who have, as the honourable member has indicated before, in some cases, paid considerable moneys to study there. As I understand it, each jurisdiction will have its own measures in relation to that. So, 'administrator' should not be understood to be a term that we might be more familiar with, I suppose, in a financial context. The appointment of an administrator would be intended to ensure that students are protected by the standards of the organisation being brought up to scratch.

The Hon. R.I. LUCAS: It is obviously way too late for making these sorts of suggestions but, to me, if that is the case, I do not think the government should have used the terms 'administrator' or 'administration', because I think it clearly leads those of us who read it to believe that what we were talking about was in terms of going into financial administration and, in essence, we are providing that.

So, for what it is worth at this late stage, maybe it might be something that when we look at the legislation later in the year the government and department might reflect upon and, if that is the case, it might come up with some whizz bang new word which means whatever this means but does not lead us to believe that it is the commonly used interpretation of the word. For what it is worth, I leave that advice with the minister and government.

Can I ask this question, therefore, in relation to the appointment of the administrator (which will only be, as I read it now, in South Australia) in the circumstances where a training provider is (as in the example I gave in clause 1) registered in, say, Victoria but providing up to 100 training places at a location here in Adelaide? I assume the government will not be able to use this particular provision in relation to a body such as that because it is registered in another state.

The Hon. B.V. FINNIGAN: I am advised that that would be something the commission—or the minister, I suppose, as well—could negotiate with the interstate regulatory authority and indicate that we had reason to believe that there was a problem with the standards provided by the provider. But the act would not provide, as I am advised, the ability for the minister to appoint an administrator in relation to an interstate registered organisation.

The Hon. R.I. LUCAS: Do I take it from the minister's response that the inference is that the other state jurisdictions do have an equivalent provision to appoint an administrator and it is just not under the national VET legislation where this is included?

The Hon. B.V. FINNIGAN: I am advised that there is not consistency across jurisdictions. I suppose the basis of trying to move to a national system is to iron out some of these anomalies but, in relation to this particular area, jurisdictions will still have the ability to have their own provisions. I am advised that at least one jurisdiction has some sort of step-in powers to enable problems like this to be dealt with but there is not consistency across jurisdictions in relation to this.

The Hon. R.I. LUCAS: I note then that, in response to the earlier question, the minister said that the minister could take up the issue with the interstate minister in relation to any concerns they had but, if that particular jurisdiction does not have these step-in or administration rights and if the national legislation is not going to provide it as well, I guess the issue remains then that these particular provisions would not be applicable to a provider that is registered interstate.

I guess it also, indirectly, gives some incentive to a provider that is going to operate in more than one state to register in another state where you do not have these particular powers, knowing that the minister would not be able to avail himself of this particular power.

The Hon. B.V. FINNIGAN: I am advised that what each jurisdiction is able to do does depend on that jurisdiction, so if we believed there was a concern, and we wanted to approach the interstate authorities, it would be a matter of bringing what we knew to their attention and trying to negotiate an outcome. This bill is part of trying to move to a national VET regulated system so that these sorts of problems are dealt with because there are indeed a lot of providers that operate across jurisdictions.

The Hon. R.I. LUCAS: My final question on this, the administrator, is: in the national discussions that have obviously gone on to produce the national bill, was the issue of the appointment of the administrator opposed by other jurisdictions going into the national legislation?

The Hon. B.V. FINNIGAN: I am advised that discussions did not drill down to this level of discussion. A decision was made early on by the commonwealth that they did not wish to delve into the consumer protection mechanisms, which is why it is now in the hands of each jurisdiction. I am advised that it was not discussed in this level of detail at the national level. South Australia does intend to continue to discuss with other jurisdictions and the national VET regulator to try to move towards some consistent system.

Clause passed.

Clause 15.

The Hon. R.I. LUCAS: I move:

Page 7, lines 21 and 22 [clause 15, inserted section 37(2)(a)(i)]—Delete subparagraph (i) and substitute:

(i) the conduct of the provider or an associate of the provider (whether in this State or elsewhere), including (for example) such of the following matters as may be relevant:

(A) whether the provider or an associate of the provider has been convicted of a criminal offence;

(B) whether registration held by an associate of the provider has been suspended or cancelled;

(C) whether a condition of registration of an associate of the provider has been imposed or varied as a result of contravention of this Act or a corresponding law or a condition of the registration;

(D) whether the provider or an associate of the provider has ever been disqualified from managing corporations under Chapter 2D Part 2D.6 of the Corporations Act 2001 of the Commonwealth.

This is consequential on the earlier amendment.

Amendment carried.

The Hon. R.I. LUCAS: I move:

Page 7, line 33 [clause 15, inserted section 37(2)(b)(ii)(A)]—After 'bankrupt' insert:

or has applied to take the benefit of a law for the relief of insolvent debtors

This is consequential on the earlier amendment.

Amendment carried; clause as amended passed.

Clause 16 passed.

Clause 17.

The Hon. R.I. LUCAS: I raised this in the second reading and also the minister replied in the second reading, and the minister's response is:

The term 'good faith' is a commonly understood and applied term within legislation. A person who acts in good faith is well-intentioned and acts without malice.

I accept that, and I understand that, but 'well-intentioned and acts without malice' clearly means that a minister who (whether it be he or she, Labor or Liberal, let's not make this political) is plain out incompetent, but nevertheless was well-intentioned and did not act with malice is going to be protected. I seek the government's response to that.

Clearly, in a set of circumstances (and, as I said, forget whether it is Labor or Liberal) where a minister who is incompetent or negligent makes a statement that causes tremendous damage to someone who has invested millions or tens of millions of dollars in their particular business—and in this field clearly a public statement from the minister saying, 'Hey, I don't think this particular provider is any good'—that business can potentially end from that moment onwards, particularly given all the publicity that such a statement would make.

I seek the government's response in relation to at least some level of expectation of competence or lack of negligence. That is, if the minister or his or her advisers have not done some basic checks and they make a statement which is factually wrong and which could have been shown to be wrong, yet the minister's explanation and the advice (I am not blaming the minister here) is that the person who acts in good faith and is well-intentioned and acts without malice is the commonly accepted understanding of good faith, does the minister accept, on behalf of the government, that is reasonable and that is enough of an expectation on something which is as business ending a prospect as a minister's making a public statement saying, 'This isn't a very good business or industry, and we don't think you as a student should be attending it'?

The Hon. B.V. FINNIGAN: I am advised that the public warning statement is intended to be essentially a consumer advice. Obviously, if a provider disagreed, they would probably seek to put alternative information in the public sphere. In relation to the term 'good faith', I think that is a well-understood term in common law. If a provider or individual believed that they had been defamed by something the minister or the commissioner had said in a statement, the defence that they had been acting in good faith may not apply if, as the honourable member indicated, there was some gross error in the information the minister or the commission had relied upon.

Generally speaking, a minister or the commission, acting in good faith, would have to demonstrate that they had undertaken due diligence and were in possession of information which credibly led them to conclude that a public warning statement was warranted and in the public interest. The term 'good faith', I think, is well enough understood that, if it became the subject of a court action, it would be necessary for the minister or the commission to demonstrate that they were acting in good faith in order to rely on that defence.

The Hon. R.I. LUCAS: As a non-lawyer, this is a difficult area for me to pursue detailed argument. Nevertheless, I do not accept that part of what the minister has just said is accurate. I understand the feel-good nature of saying 'acting in good faith'. However, the legal advice the minister has put on the record is that the commonly understood interpretation of 'good faith' is what are the tests of good faith, and the tests of good faith are that you are well-intentioned and you acted without malice. You can, as I said at the outset (and I cannot offer any more specificity than this), be well-intentioned and act without malice and be a fool. Again, without introducing a partisan element to this, we have all been aware of ministers in the past (perhaps all sides, depending on which side of the fence you are on) where that definition might fit aptly.

The Hon. B.V. Finnigan: Don't be so hard on yourself.

The Hon. R.I. LUCAS: I wasn't particularly thinking of myself, the Hon. Mr Finnigan. As I said, I do not want to introduce a partisan element to this because this is Labor and Liberal ministers now and in the future. The reason I asked the question in the second reading is that I know that, in the dim distant past (and I could not turn it up), there was a long and arduous debate in the national electricity legislation about the various measures of, I guess, liability or responsibility for ministers and for regulatory authorities—good faith, bad faith and a whole range of other things in-between.

There were inordinately long arguments about whether one should use the test of good faith or bad faith or, as I said, I know there were half a dozen other varying versions in between in terms of what is a reasonable measure of responsibility or liability to leave with a particular minister or regulatory authority. That is why I asked the question, albeit in an imperfect way, in the second reading. I am relying on the minister's legal advice, obviously, that says, 'Well, this particular measure the government's chosen (good faith) is simply "well-intentioned and acts without malice".'

As I said, I am not in a position to move an alternative amendment. I raise the issue with the government now. This bill will be with us, we assume, for this year, and hopefully this particular power does not have to be used at all in that particular period and, if it is, let's hope that it is used by the minster wisely and also well-intentioned and without malice, that is, that all of those measures are met, not just the good faith measure that the minister's advice has provided.

Maybe, as we look to the debate later in the year for the legislation, my party can take further advice as to the other possible ways of protecting a minister which are reasonable. I think there should be some degree of reasonableness in terms of the minister's actions. It should not just be that, if you are a well-intentioned fool, you are protected from any liability. There should be some other measure as well. As I said, I am not in a position to move an amendment, so I will not, but I just raise this issue, and perhaps we can revisit it later in the year, when I may well find the former advice I had in relation to the electricity provisions.

The Hon. B.V. FINNIGAN: I thank the honourable member for his indication of support for this clause. I think he is perhaps making too much of the definition that I gave, while that is indeed what I am advised and that is consistent with the common law. Obviously, any time that something like that is considered by a court, they will weigh up all the circumstances, and it is hard to see that a statement made recklessly or negligently would be considered to have been made in good faith and in the public interest.

The court would, I think, look at the clause holistically, and the minister, commissioner or advocate would need to demonstrate that they had good reason for acting as they did. I do not think simply turning up to court and saying, 'Well, your honour, I was well-intentioned and had no malice,' would be enough for you to rely on that defence.

I think this is a measure intended to allow for greater transparency in the warnings that are given to students in relation to providers. There is obviously nothing to stop the minister now from hopping up in the chamber and saying something about provider and being protected from liability, but we want to put in place a process where it is more transparent or clearer as to why a statement is being made and the grounds on which the minister or commissioner is relying.

Clause passed.

Clauses 18 to 20 passed.

Clause 21.

The Hon. R.I. LUCAS: The other area the minister indicated which was in our South Australian legislation which would not be in the national legislation was in relation to orders for compensation. Can I just clarify; I assume, based on the previous advice, the reason for that is because the Commonwealth did not want to have any of these sorts of issues in their bill, therefore we have to have it in ours if we wish it?

The Hon. B.V. FINNIGAN: I am advised that that is the case, that consumer protection measures were left to individual jurisdictions.

Clause passed.

Clauses 22 and 23 passed.

Clause 24.

The Hon. R.I. LUCAS: These are the powers of the commission or the training advocate. Can I ask the minister what in this particular provision is new or additional in terms of the power of the commission or the training advocate that does not exist in the existing legislation?

The Hon. B.V. FINNIGAN: I am advised that it is simply a better formulation of the power. It particularly ensures that more modern media are covered, so it specifically mentions films or video recordings. It is just clarifying what may constitute evidence in terms of material that the commission may wish to inspect or take.

The Hon. R.I. LUCAS: That was the point of my question, I guess. Has there been a problem in relation to the commission's powers with any previous investigation? That is, has the commission or the training advocate had difficulty under the existing powers in gaining evidence or information that it required?

The Hon. B.V. FINNIGAN: I am advised that there are not specific examples of the current provision being a problem, but in certain actions the commission has taken it certainly became apparent that there needed to be a more defined clause so that, if they were to exercise that power, there would not be any doubt about that power being able to be exercised.

The Hon. R.I. LUCAS: As I said, I am not going to move any amendment, but I could not see the problems with the current drafting. The dilemma you have once you start specifying is whether you leave yourself open to the issue that there is something you have not specified. I do not think the issue of photographs, films or video recordings is necessarily something new in recent times. Anyway, if that is what the government's advice is, then so be it.

My final question is: do the powers that the commission or the training advocate are proposed to have under this legislation mirror the powers that are proposed to be incorporated in the national legislation that we are going to see later on in the year?

The Hon. B.V. FINNIGAN: I am advised that it is intended that it will be covered in the national legislation. To clarify what I said previously, by making more defined what is covered it just ensures that any potential ambiguity about what document or record means is clarified.

Clause passed.

Remaining clauses (25 and 26) and title passed.

Bill reported with amendment.

Third Reading

The Hon. B.V. FINNIGAN (Minister for Industrial Relations, Minister for State/Local Government Relations, Minister for Gambling) (16:30): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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