Natasha Stott Despoja (SA, Australian Democrats) Share this | Link to this | Hansard source

The Australian Democrats oppose schedule 5 in the following terms:

(1)    Schedule 5, page 13 (lines 2 to 14), TO BE OPPOSED.

As I foreshadowed in my remarks in the second reading debate we oppose the schedule that effectively removes the restriction on the number of full fee paying places. I have outlined my rationale for this amendment. In his contribution to the second reading debate the minister indicated that a certain event would not be allowed to happen—namely, that courses could become full fee paying courses only. Could the minister explain to the Senate how that would take place, how it would work that the guarantee would be enshrined?

George Brandis (Queensland, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

I am advised that that outcome will be secured in two ways: by the funding agreements, and by the requirement that any decision by a university to offer a course on a fee-paying basis only would have to be approved by the minister in advance.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

Is there the potential to manipulate a cluster of courses in such a way as to exclude a certain course? For instance, if you have within a cluster of courses medicine and dentistry at the University of Sydney, could the university only offer the Commonwealth sponsored positions within, say, medicine? What is the government’s intention to prevent this from happening?

George Brandis (Queensland, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

Senator Joyce has been good enough to foreshadow his question to the minister’s office in advance and I have been provided with the following answer. To reinforce the expectation that universities will be responsible in their decisions on fee-paying places and be transparent about them, the Minister for Education, Science and Training will be introducing some new provisions in their funding agreements with the Australian government. Higher education providers will need to publish in advance details of any undergraduate courses where the balance between Commonwealth supported and domestic fee-paying places offered is to be changed substantially. If a university proposes to offer an undergraduate course on a fee-paying basis only, the reasons for that decision will also have to be published and that decision must be approved by the minister. In the unlikely event that it is needed, a further provision of funding agreements will enable the Australian government to direct a provider to provide Commonwealth supported places in a particular course where it would be in the interests of prospective students to give such a direction. There would be an opportunity for the provider to raise concerns about any such proposed direction.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister for Industry) Share this | Link to this | Hansard source

If that is the case, why did the officials at the Senate estimates committee confirm that it is possible for universities to offer entirely full fee paying courses within a subject discipline within a cluster?

George Brandis (Queensland, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

Senator Carr, I am not in a position to assist you as to why officers may have answered a particular question in a particular way, nor would I be prepared to comment on the answers of officers to a question without having examined the question and the answer.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

I would like to put on the record that I thank the minister for his answer. I look forward to the foreshadowed provisions and I will rely on the good intent of the government to see them through.

Natasha Stott Despoja (SA, Australian Democrats) Share this | Link to this | Hansard source

I also thank the minister for outlining the proposal by the government, in skeletal detail, and I will now ask some specific questions about what on earth is going on here. The government has just come into the chamber and told us that there is going to be a new arrangement in relation to higher education providers and the provisions that deal with them—that there is now going to be some kind of insertion of new rules, new requirements, into these provisions, regarding how up-front, full fee paying courses are dealt with. We need to go over it again and clarify exactly what is happening here.

When is this new arrangement going to operate from? When will we see the detail of this arrangement? Will it be legislated for—that is, will there be legislation before us in the chamber? Will it be through delegated legislation or guidelines, or will the changes simply be inserted into the agreements with the funding providers, or in negotiations with universities? Does this not represent an extraordinary new way of intruding into academic autonomy, or is this simply the government rationalising it on the grounds that ‘we give public money therefore they have to be responsible for certain actions’? And, if so, what are the mechanisms for appeal or debate?

I understand that Senator Brandis, the minister, has explained that this is subject to ministerial approval. So it will be at the minister’s discretion to decide what courses unis do and do not provide that have full-cost fees. If a provider may be directed to act in a certain way, I want to know what mechanisms or opportunities for appeal there are for universities to question that. The idea is that universities, when they do provide a full fee paying course, have to provide that information—publish, I think the minister said—and then it will be approved by the minister, if they are altering the course in ‘a substantial way’. I think that was the terminology that the minister used. What is ‘substantial’? Does it mean that it is 75 per cent full-fee paying and 25 per cent Commonwealth supported places, or is it 99 per cent and one per cent? Is it 100 per cent and zero?

This is policymaking on the run. We are talking about one of the biggest potential changes to the higher education sector. We have exposed in here today and previously in Senate estimates that there is nothing, zip, to stop the government allowing full fee paying places in one course because of the nature of the cluster arrangements. This has been discussed here by Senator Carr, Senator Fielding and others in this place and is now questioned by Senator Joyce and others. There is nothing to stop universities providing a full fee paying only course except this last-minute, hey presto, rabbit-out-of-a-hat ministerial guarantee that will be built into the reporting requirements of the university sector and will rely on them telling the government, with the government having the power—excuse me, the minister; let’s talk about ministerial discretion here—the minister being able to approve or not approve it and universities having to give reasons for why they want to constitute a course in a particular way. And we know nothing about how this is going to be done, when it is going to be done or what consultation has taken place.

It is absolutely extraordinary. I am actually surprised. There is not much that surprises me in higher education legislation, but today I am actually surprised. So, through you, Chair, I ask Minister Brandis as the representative of the minister for education to explain exactly when we are going to see this stuff. Now I understand why I was denied the opportunity to send this bill to a committee: its lack of specificity. I wish I could have Senator Joyce’s faith in the intent of the government—and I understand he is genuinely concerned about this issue, hence his getting this information on the record—but government intent is not good enough for me. When a government tells me that it will not allow $100,000 degree courses—and I am well aware now of universities that charge more than 200 grand—you bet intent is not good enough. I want nice enshrined legislative detail in front of me, not something that has been cooked up at the last moment in an ad hoc, ill-conceived, hasty manner in order to ensure that the schedule stays as printed.

George Brandis (Queensland, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

Thank you, Senator Stott Despoja. In the course of your contribution I think I discerned eight questions, which I will endeavour to answer.

Natasha Stott Despoja (SA, Australian Democrats) Share this | Link to this | Hansard source

Glad you were counting!

George Brandis (Queensland, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

Well, I wanted to do justice to your questions, Senator. The respective commencement dates for the provisions are provided for by clause 2 of the bill. The various provisions of the bill, when enacted, will commence upon either royal assent or 1 January 2008, as specified in the table in clause 2. You may take it, though, Senator Stott Despoja, that for functional purposes these arrangements will commence, as I think I indicated in summing up the second reading debate, from the commencement of 2008.

You asked, Senator Stott Despoja, about where we are to find the conditions that the minister might impose. There are no government amendments to the bill circulated, and I understand that it is not proposed that there will be any statutory instrument. The regulations that I indicated in response to Senator Joyce’s question and in summing up the second reading debate will be contained in the provisions of the funding agreements with the various higher education providers. I point out to you that similar arrangements already apply for medical places and new places.

In relation to your questions directed to the capacity to challenge the minister’s determination to decline an application by a higher education provider, as I already indicated in my answer to Senator Joyce’s question, there will be an opportunity for the provider to raise concerns about any such proposed direction. That would be a provision of the funding agreements, as I understand it. Of course, the provisions of the ADJR Act also apply to any ministerial discretion exercised under the act or under funding agreements entered into pursuant to the provisions of the act.

Those answers, I hope, address the particular inquiries you made of me, Senator Stott Despoja. May I close by responding to what I thought was essentially a rhetorical question, when you said, ‘Does this represent a new form of intrusion into the autonomy of higher education?’ If I may say, with respect, Senator Stott Despoja, I am sure that it is perfectly clear to you that the whole point of this legislation is to give higher education providers greater autonomy and greater flexibility. As you well know as somebody who follows these debates very closely, as I know you do, the vice-chancellors have been asking for that for a very considerable period of time now. But it is not the purpose of the government in providing extra flexibility to higher education providers to give them carte blanche, and therefore there are these protections in the form of requirements of ministerial approval provided for. If I may, I will respond to your rhetorical question with a rhetorical question of my own: what on earth would you have said if there were not such safeguards?

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

Senator Stott Despoja said this was policy on the run, and I just want to be fair to the minister and clarify why that is not the case. This is an issue that has been under discussion with the minister’s office for quite some time. Correspondence has gone from the minister’s office back to my office with regard to this issue. It is an issue that has been publicly discussed, even in the Melbourne Herald Sun today and on Triple J yesterday. So it is an issue that has been discussed openly. The minister has kindly provided a clarification for the Hansard to respect the intent of this chamber that the Australian people get to hear it on the record. I know that Senator Stott Despoja has strong beliefs about this, and today I approached her in this chamber to further discuss it. I think it brings a sense of security and a belief that there will continue to be social and economic mobility in Australia by allowing people to progress by their own efforts at high school and go into a higher economic field.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister for Industry) Share this | Link to this | Hansard source

Senator Brandis, I asked a question about what occurred at the Senate estimates. To remind you of those discussions at the Senate estimates I would like to draw your attention to the record of those discussions published in the Senate Hansard, which indicates that you were present at the time.

George Brandis (Queensland, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

I don’t think that you are expecting that I would have a—

Alan Ferguson (SA, Liberal Party) Share this | Link to this | Hansard source

Senator Brandis, Senator Carr has the call.

George Brandis (Queensland, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

I just want to interject with this question: are you suggesting that I should have an unassisted memory of the entire proceedings of the Senate estimates, Senator Carr?

The Temporary Chairman:

Minister, Senator Carr has the call and he is on his feet, so you must allow him to continue.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister for Industry) Share this | Link to this | Hansard source

Thank you. To put it to you that you were present is not an accusation, Senator Brandis. It is to remind you that you were present at these particular proceedings.

George Brandis (Queensland, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

I am listening to you with rapt attention.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister for Industry) Share this | Link to this | Hansard source

You are obviously not rapt enough. I will read from page 8 of the Hansard of the Standing Committee on Employment, Workplace Relations and Education hearing of Thursday, 31 May. Mr Manns and I have exchanged views for many years. I have always found him to be very precise in his evidence to Senate committees, and he is obviously a highly competent officer. The Hansard reads:

Senator CARR—Does the department have any projections on the increase in the number of domestic full fee paying students?

Mr Manns—The estimate behind the recent budget measure that removes what is commonly called the cap on fee-paying places is a 20 per cent increase in the number of domestic fee-paying places.

Senator CARR—Over what length of time?

Mr Manns—Potentially immediately. Provision has been made for that to happen.

Senator CARR—From 2008?

Mr Manns—For 2008. But I suspect that realistically it might take some time to flow through.

Then we went on to discuss precisely what those implications were. In 2005 there were 15,630 students paying full fees, some of whom were in summer semester, out of the total student body of some half a million. Those are the latest figures. So, while it is a relatively small number, about three per cent of the total student body, it is clearly an important factor when it comes to the question you posed to me about Labor’s compensation measures for universities. It is not such a large sum of money that it cannot be realistically responded to through normal appropriation measures. What is clear is that the government’s intention—and the budget assumption is built upon these intentions—is that there be a 20 per cent increase in the number of domestic fee-paying students from next year.

I then asked whether it would be possible under the new arrangements for entire disciplines to be transferred to full fee paying programs. Mr Manns said:

It will be possible under the new arrangements for a university to offer a particular course only on a full fee paying basis, provided, as we said earlier, that it offers all of those places that it has been allocated in the broad discipline cluster as Commonwealth supported places first. That rule will continue to apply. Within that, the current rule that applies course by course will no longer apply.

So it is apparent that, within the funding clusters—for instance, if we take the law, accounting, administrative economics and commerce cluster—it is possible for one of those disciplines to be offered on a full fee paying basis. That point was confirmed when Mr Manns said:

Theoretically, if it is in the same cluster, yes.

But he then put the view to us that he thought it was going to be difficult for the universities to do that and that it would require discussion with the department. At no point was there any mention of a directive or new guidelines being issued to change the import of what was being said. One presumes that, if that information were available to officers at the time, we would have been advised of it. My question to the minister is: when was it decided that the guidelines would change and that new directives would be issued?

George Brandis (Queensland, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

I am told since estimates.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister for Industry) Share this | Link to this | Hansard source

Can I get a date on that?

George Brandis (Queensland, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

I am told that there is not one particular date that these arrangements have been in development, as you would naturally expect, Senator, of complex arrangements such as these. So in a period of time between estimates and now.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister for Industry) Share this | Link to this | Hansard source

So I presume that I can draw the inference from that that, in the period after 31 May, this proposal has arisen within the government.

George Brandis (Queensland, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

I think we should be careful with the use of words, Senator Carr. Let us be accurate here. Your first question was: when was this decided? Now your question is: when has it arisen? I do not know when the idea arose, but it was decided since estimates, as I indicated in my earlier answer.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister for Industry) Share this | Link to this | Hansard source

It was decided after this evidence was presented on 31 May that new directives would be issued to universities and new guidelines would be prepared such that universities now can no longer do what officers told us they could do on 31 May with regard to the provision of full fee paying courses within disciplines which are within a cluster. Is that the proposition that is now being put to us?

George Brandis (Queensland, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

Senator Carr, I think you need to be careful once again, if I may say so with respect. Your questions were directed to the draft legislation, as I understand it. What I told the Senate is that these arrangements would take the form of provisions in funding agreements, which do not form part of the legislation.

The Temporary Chairman:

Senator Carr, before I give you the call, could I remind both you and the minister that it would be a good idea to follow standing orders and address the chair rather than each other.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister for Industry) Share this | Link to this | Hansard source

Thank you, Mr Temporary Chairman. The point I am going to make relates to the provisions of the budget measure. Questions at Senate estimates did not mention the legislation; they went to the budget measure—they went to the operational response of the department to universities and the universities’ practices in the enrolment of students. That was never a question of legislation and it is a bit cute—a bit of a lawyer’s trick—to try to reinvent the question in a way that suits the government. We clearly were advised on 31 May that the operations of this budget measure would produce this result—namely, that universities could enrol students in disciplines within a cluster on a full fee paying basis. That was a change in practice. We were further advised that there was to be an expectation within the budget measure that it would lead to a growth in the number of full fee paying students of some 20 per cent. That is my rhetorical point. My question to the minister is: is it still intended that the number of full fee paying students will increase by an estimated 20 per cent?

George Brandis (Queensland, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

With respect, Senator Carr—through you, Mr Temporary Chairman—I think that you are drawing a distinction without a difference here. The expectation of the budget measure is as indicated, and that has not changed. What you were inquiring of in Senate estimates, if I understood you correctly when you read the extract from the Hansard, was whether something—that is, the provision only of fee-paying places, to the exclusion of Commonwealth supported places—was a theoretical possibility. It is not the intention or the expectation of the government that that would happen. That is, I imagine, why the minister has required that the funding agreements contain provisions for her approval and other safeguards to ensure, as I indicated before, that that does not happen.

Natasha Stott Despoja (SA, Australian Democrats) Share this | Link to this | Hansard source

Through you, Mr Temporary Chairman, I ask the minister: why didn’t the minister mention these regulations during the debate in the House this week? I am just trying to assess this time line a little better. We are talking about post 31 May; it is now 15 June. There has been no public discussion or revelation of these new proposals until today—coincidentally, in light of the discussions that we have had in this place today and in the media in the last couple of days. As I understand it, this legislation was debated on Wednesday in the House of Representatives. I am just wondering why the minister did not take an opportunity to make an announcement then about the possibility of our dealing with new delegated legislation, regulations or guidelines in relation to this issue. It seems quite extraordinary to me. I am sure this has been discussed and considered over the last couple of weeks. It seems as though this policy announcement was made today. Has the minister made any other public announcements? I am happy to stand corrected if this was analysed and scrutinised in the House of Representatives and if the minister made a full and frank announcement there.

George Brandis (Queensland, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

Through you, Mr Temporary Chairman: Senator Stott Despoja, I do not know what the minister said in the House of Representatives. What she said is a matter of public record. Why that proposal was not made at the time is not something that I am in a position to tell you. What I can tell you, as I indicated in an earlier answer, is that it is not proposed that there be delegated legislation; it is proposed that these safeguards be contained as terms of the funding agreements with the higher education providers. With all due respect, Senator Stott Despoja, it is a little bit rich that, of all people, an Australian Democrat senator should be complaining that this is policy on the run when an issue has arisen—it was first raised by Senator Barnaby Joyce—to which the government has responded in the course of the parliamentary debate and in the manner in which I have indicated. Isn’t that what the Senate is for, Senator Stott Despoja?

Natasha Stott Despoja (SA, Australian Democrats) Share this | Link to this | Hansard source

I am going to assume that that was rhetorical, because that was just too cute by half when these issues were raised in the Senate estimates, the government has been aware of them and today in the Senate we have had an announcement on how the government will address this issue. I am just going to leave the government to back-pedal on that one. Anyone who has observed this debate knows exactly what is going on. This is news. This was not announced in the House. If it was, I am sure the minister or her advisers will let us know. We are not dealing with the terminology. We do not have before us what is proposed for the university sector. That is understandable. That is how it works sometimes.

I have a particular view that any such so-called guarantee or restriction on how the full-fee cap removal will work should be in some kind of statutory format. I do not trust the idea that it is going to be left to ministerial discretion. But I would like to ask—given that this is not news, according to government—what the response of the university sector has been to this proposal and how long the consultation has been on this proposal. I am assuming that they are aware of it. It may not have been public news until it was announced today in the Senate, but I am sure that they have been involved in discussions with the government.

I am just wondering how they view this proposal from the government of a possible restriction on how they operate. I want to clarify for the record—because this is the question that really counts—whether this proposal that universities will be prevented from providing only full fee paying courses be part of the agreement. I am not talking about within the cluster; I am talking about the courses. Will this proposal and the agreement that will be struck with universities, to which they have to adhere in their funding arrangements, now prevent them from providing only fee-paying courses—100 per cent fee-paying courses? It seems that you can still manipulate the courses within that cluster in order to provide only fee-paying courses. If the intention of this proposal is to prevent that, albeit subject to ministerial discretion, why remove the fee cap in the first place?

Clearly, if the government is not in favour of only full fee paying courses, why not keep a cap that prevents universities from having 100 per cent full fee paying courses instead of this potential manipulation of the clusters? We now have a belated response to this concern with the introduction of an added part in the funding arrangements so that universities will have to justify what they are doing. If they are varying courses and the amount of fee-paying places within those courses, they will need to get ministerial approval. The government is now giving a guarantee that there will be no such thing; it will not be possible to have 100 per cent fee-paying courses only.

George Brandis (Queensland, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

Before I deal directly with the question you have put, might I correct you and, indeed, correct myself. In the earlier question and answer, you asserted to me, and I adopted your assertion, that the minister had not commented on this proposal in the House of Representatives. It may be that it was not said in the second reading speech, but it has been drawn to my attention that in the consideration in detail stage in the House of Representatives, on page 152 of the House of Representatives Hansard on 13 June 2007, the minister said:

We have made it a requirement that the universities must continue to offer Commonwealth supported places and we will not allow universities to manipulate the provision of Commonwealth supported places to fill courses with full-fee-paying places. The way we will be able to do that is through the three-year funding agreements that are also a budget initiative from this year. Universities will be required to offer all Commonwealth supported places, and we will not allow them to manipulate those places so as to create full-fee-paying courses.

So, Senator Stott Despoja, this is not news today; both the substance and the mechanism were indicated by the minister in the other place on Wednesday evening. Senator Stott Despoja, you also asked—

Natasha Stott Despoja (SA, Australian Democrats) Share this | Link to this | Hansard source

Senator Stott Despoja interjecting—

George Brandis (Queensland, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

If I may finish, you also expressed scepticism about doing this through the mechanism of funding agreements and wondered how we will know what the provisions of the funding agreements are. Might I direct your attention to section 30.25 of the Higher Education Support Act 2003, which deals with funding agreements, and, in particular, to subsection (4), which provides:

The Minister must cause a copy of the agreement to be laid before each House of the Parliament within 15 sitting days of that House after the making of the agreement.

So that, I hope, addresses that issue.

Senator Stott Despoja, I think the substance of your question was really the same question as was asked of me by Senator Joyce. That question was carefully considered by the minister’s office. The minister’s office provided a detailed and considered response which I read onto the record in response to Senator Joyce’s question, and I have also read onto the record the minister’s response to a question asked of her in the consideration in detail stage of the debate in the other place. I do not want to run the risk of confusing the issue by adding my own gloss or paraphrase on what this means, but I direct you to the minister’s answer and the minister’s office’s considered response.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister for Industry) Share this | Link to this | Hansard source

As I understand it, the question before the committee is that schedule 5 stand as printed.

Alan Ferguson (SA, Liberal Party) Share this | Link to this | Hansard source

That is correct.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister for Industry) Share this | Link to this | Hansard source

The opposition will be opposing that question. As far as we are concerned, these full fee paying places should be phased out. We have indicated that that is our policy position. We have indicated that, in view of the fact that the government is seeking to have a 20 per cent increase in the numbers of people paying fees, that clearly would add to the present situation, which is fundamentally unjust. We have a situation at the moment whereby people are able to buy a place at a university with an ENTER score of up to 20 points lower than those that are undertaking HECS places in those courses. For instance, a full fee paying place at Deakin University in the Bachelor of Exercise and Sport Science course was 20 points below the HECS place ENTER score required. Frankly, we regard that as unfair.

We suggest that the cap arrangements that the government formerly had put some limits on the capacity for that sort of behaviour to occur, but with these new provisions the situation will become even worse. Whatever arrangements the government has entered into by way of a sweetheart deal with members of its own backbench, so be it. The only way that this injustice can be responded to effectively is to remove full fee paying places from award courses at public universities. As a consequence, we will be supporting the removal of this schedule from the bill.

George Brandis (Queensland, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

It is more than absurd for Senator Carr, in the course of two contributions briefly separated in time, on the one hand to be condemning the government for imposing safeguards to ensure that there is no opportunity for universities to manipulate these arrangements to deny to Australian students the opportunity of Commonwealth supported places and, at the same time, to say that the vice of this legislation is that it provides for full fee paying places. Senator Carr condemns the safeguards that would avoid the very outcome that he condemns.

While I am on my feet, can I add to my earlier answer to Senator Stott Despoja’s questions. It has also been drawn to my attention that, in the summing-up of the second reading debate on 13 June in the other place, not Ms Bishop but Mr Nairn, speaking on her behalf, also addressed this issue. Let me read what he said:

This bill will relax the caps on Commonwealth supported and domestic full-fee-paying undergraduate student places. Labor has suggested that universities will en masse convert Commonwealth supported places into full-fee-paying places and will turn their backs on students seeking to take up a Commonwealth supported place. The Australian government expects universities to act responsibly and will not let this happen. Government policy remains that universities must offer their Commonwealth supported places in a discipline cluster before they offer full-fee-paying places. Any significant shifts in student load between clusters must be approved through the funding agreements between the Australian government and universities. The Australian government will not let Australian universities walk away from their obligation to ensure access for Australians who want, and who are eligible for, a university education.

So that is three times, Senator Stott Despoja: in Ms Bishop’s response in the consideration in detail stage in the other place, in Mr Nairn’s speech on her behalf summing up the second reading debate, and in my response, which had been prepared in the minister’s office, to the question posed first by Senator Joyce and then posed again by you. I think it would be very difficult to maintain that there has been any want of transparency or clarification of the government’s position in view of those three considered statements.

Natasha Stott Despoja (SA, Australian Democrats) Share this | Link to this | Hansard source

I thank the minister for his answer. He has made very clear to me that, yes, we are talking about ministerial discretion applying to that cluster. I think, as Senator Carr would understand, that just reinforces what we have been concerned about all along, which has been confirmed in the Senate estimates of the parliament just over two weeks ago—that is, that this relates not to courses but to clusters.

I have no qualms about a government introducing safeguards—I just want to make sure Senator Brandis is clear about that—but I expect stronger, more enforceable safeguards that are less subject to ministerial discretion, so that promises such as ‘There will never be a $100,000 degree,’ which get broken with alacrity, will not recur.

I was aware of Minister Bishop’s statement. I saw that on the AAP wire, for goodness sake! It has been repeated across the universe, through NUS and everyone else. I was talking in specifics; I was not referring to statements like, ‘We’re going to make sure that they can’t be manipulated—blah, blah, blah,’ and ‘We’ll look at this—blah, blah, blah.’ I actually thought there might be something to table or some list of consultations that have taken place with Australian universities. I thought there might be some detail—some meat on the bones—but I am being naive to suggest that.

Maybe I could at least get a specific response to an earlier question, which was: how do you define a substantial or a significant shift? What is meant by that?

George Brandis (Queensland, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

Senator Stott Despoja, I am afraid you seem to be descending into rhetoric now. The government has made its policy as clear as can be. It has also, as I have advised you, made clear that the mechanism of that policy will be not vaporous statements in parliament but specific clauses of funding agreements. As I pointed out to you before, by subsection 30.25(4) of the Higher Education Support Act, those funding agreements have to be tabled in the parliament. In relation to the definition of ‘substantial’, I am advised that that is not a defined term in the legislation.

Natasha Stott Despoja (SA, Australian Democrats) Share this | Link to this | Hansard source

So what is meant by a substantial or a significant shift? In the minister’s earlier outline to the parliament about what the vice-chancellors or the universities would have to explain in terms of a changed agreement or a change to the number of fee-paying courses, there was reference to the word ‘substantial’. I am just wondering what ‘substantial’ means in the circumstance? I asked the same question earlier. If it has not been defined, that is okay. Is it five per cent, 10 per cent or is it a big change? Is it like space—very big—or is it just a little bit? What constitutes a significant shift or a substantial change in terms of the funding arrangements for universities when it comes to a change involving the amount of fee-paying courses on offer, or fee-paying courses within the cluster? I reiterate for the record that we are talking about the cluster.

George Brandis (Queensland, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

Surely, Senator Stott Despoja, you are aware that there are many acts of this parliament which use the word ‘substantial’ as a test without providing a statutory definition of that term, because it is a plain English term. The term is used in the Income Tax Assessment Act, the Trade Practices Act and, I think, in various provisions of the Corporations Law. I think it is used in some of the media ownership laws. The use of the term ‘substantial’ without providing a mathematical definition as to what that might mean, but relying on the plain English of the word, is commonplace.

Natasha Stott Despoja (SA, Australian Democrats) Share this | Link to this | Hansard source

This is not a silly question. This is not suggesting that there is not a broader—

George Brandis (Queensland, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

It was not a silly answer!

Natasha Stott Despoja (SA, Australian Democrats) Share this | Link to this | Hansard source

In relation to changes to full fee paying courses, I understand that universities will have to justify those changes to the minister if they are substantial, and then have them published and approved—or whatever was the quote from the minister earlier. In that context, what is a substantial change? I am happy to have a ballpark figure. I am seriously curious as to whether it is a 10 per cent change or a 50 per cent change—or is it undefined in the sense that it just seems to be a change from what was previously offered.

So, for example, if a university now has 25 per cent opportunities for fee-paying courses but wants to increase that up to 90 per cent or 50 per cent—or whatever it might be—and they have to justify this change to the minister in order to have it analysed, assessed and approved, or not approved as the case may be, what is substantial? If it is a one per cent change or a two per cent change, obviously that would not be substantial. I understand that. I am not deliberately being difficult; I just wonder how it applies in this context. We can talk about how it applies in a taxation context or anywhere else, but as far as higher education is concerned—and in relation to this specific issue—I wonder whether that has been worked out. You can tell me it has not been. You can say, ‘Look, that is something that we’ll look at when determining the agreements with the universities down the track.’ Okay, but I am curious. ‘Substantial’ was the one specific reference in the minister’s outline earlier. It is probably as specific as I am going to get, and I am just curious about what that would constitute in a higher education fee-paying context, in terms of any change.

George Brandis (Queensland, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

I think Senator Stott Despoja has, if I may say so, demonstrated precisely why it would not be good drafting to gloss the word ‘substantial’ with some sort of mathematical formula so that we might have a silly argument over whether 25 per cent was not substantial and 26 per cent was. That is why the practical and commonplace drafting solution to this issue has been to use the word ‘substantial’ in its plain English meaning and not to subject it to mathematical or arithmetical formulae. This is the basis upon which a ministerial discretion—a reviewable ministerial discretion, I might say—is exercisable. I might venture to suggest that what mathematical formula might constitute a substantial change in one course, in certain circumstances might be different from what would constitute a substantial change in a different course in other circumstances—depending upon, among other things, considerations of scarcity. These are all very good reasons why the definition of substantial has not been limited by invariant arithmetical criteria but has been left to the flexible ordinary English word, as the word is usually used in statutes.

Question put:

That schedule 5 stand as printed.