Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to this | Hansard source

I rise to support the Tertiary Education Quality and Standards Agency Amendment Bill 2014 which I did not expect to do when the bill was introduced in February. The bill was introduced without notice and without prior consultation with stakeholders but since then the bill has been the subject of an inquiry by the Senate Education and Employment Legislation Committee. The committee recommended that the bill be passed but Labor senators submitted a minority report that proposed amendments, which I am pleased to see have changed the government's attitude to its own bill.

At the time I was attacked for referring the bill. We now find that the government has accepted all of the amendments that the Labor Party proposed. The Minister for Education described my referral of this bill as a spectacular backflip. He argued that the purpose of the bill was to implement the recommendations of the Review of higher education regulation 2013 report by Professors Valerie Braithwaite and Kwong Lee Dow, which Labor commissioned when in office. I was very keen to have that report published, even though the department was somewhat reluctant to have it published. But we can ask the question: who has actually backflipped now? All of the concerns raised by Labor senators in the report have been addressed in the government's amendments, which are, as I have said, subject to that report. So as backflips go the minister's reversal on this bill is about as spectacular as the claims that he has been making about other people.

The claim that the bill intended to implement the Braithwaite and Kwong Lee Dow recommendations was maintained by the government throughout the inquiry. It was impossible, however, to consider the consequences of the bill as originally conceived other than in the context of the proposed changes to higher education that were announced in the budget.

The Tertiary Education Quality and Standards Agency, TEQSA, is the regulator of Australia's higher education system. It assesses and registers new institutions in the system and conducts quality audits of existing institutions. TEQSA's operations are already constrained by this government's removal of 40 per cent of its funding. At a time when the government wants to open up higher education to new private providers and at a time when the government is proposing that universities can charge what they like for a university degree, TEQSA would be required, if the government amendments were true to form, to undertake considerably more with much less.

That depleted state would have been made even worse as the original form of the bill sought to deprive TEQSA of powers that it actually needed to do the job. As the minority report notes, the unamended bill would have altered TEQSA's structure and purpose in fundamental ways. It would have substantially diminished the agency's quality assessment role, other than in assessing institutions against threshold standards—as it was put, those concerned with provider registration and course accreditation in the Higher Education Standards Framework.

The bill also increased the minister's power to issue directives to TEQSA, gave the minister the power to reduce the number of TEQSA commissioners and allowed greater delegation of authority to the senior staff. I was concerned with the way the bill was originally worded as it may well have allowed for delegation to personnel outside of the agency. All those proposed changes raised disturbing questions about the government's intention, which of course we never got straight answers on in the inquiry.

The number of staff TEQSA employs is about 88. Under these government proposals that is to be reduced to 66. The consequences of that sort of reduction when it comes to the issue of quality assurance I think are quite serious. On the issue of quality assessment itself, the bill would have repealed section 60 of the act that gives TEQSA the power to assess institutions, or the sector more broadly, against non-threshold standards. Such things here would include learning and teaching standards, research standards and information standards.

The minister sought to justify the change by arguing that it would streamline TEQSA's operations by focusing them on provider registration and course accreditation as core functions. This was in spite of the fact that section 60 only states that TEQSA 'may review any aspect of an entity's operation'. The act as it is currently written does not require TEQSA to conduct comprehensive quality assessments of all institutions beyond the threshold level. Because of that, and because TEQSA has already begun to move beyond the one-size-fits-all approach that characterised earlier operations, it is not obvious why the section needed to be repealed.

The dangers of restricting the scope of TEQSA's operation, however, are abundantly clear. The National Tertiary Education Union stated in its submission to the inquiry:

… the push to reduce regulatory burden … is being conflated with deregulation—and in doing so, removing an entire government mechanism that addresses quality in the sector.

The need for such a mechanism should be obvious. TEQSA plays a crucial role in the reputation of a higher education provider. The damage caused by fly-by-night operators in recent years was a great threat to the reputation of Australian higher education, and that is the reason why TEQSA was actually established by Labor in office.

Senators may remember the saga of Greenwich University, the scam degree factory operating out of Norfolk Island which followed the laissez-faire approach, the dog-eat-dog approach, that developed under the former Howard government. That sort of policy is reminiscent of the sorts of attitudes we are seeing under this government. So TEQSA was established to clamp down on those types of operators, which were doing such profound damage to this nation's international reputation. These examples were not isolated and without a regulator, without appropriate powers, such dodgy operators may in fact be able to infect the system again. That is why it is so important to have a strong regulator to ensure quality.

If you look at the example of what has happened in VET in Victoria, the danger is clear. In that state traditional TAFE colleges have been struggling to compete with a flood of new providers, many of which have been briefly pursuing somewhat fashionable lifestyle courses. They have been able to extract quite substantial revenues but at great cost to the students that they enrol. It does not take a leap of imagination to envisage a similar outcome in the higher education sector if the regulator were to be permanently crippled.

TEQSA's ability to fulfil its quality assurance role was also undermined in the original bill by a provision allowing the agency to extend registration periods beyond seven years. As the RMIT argued in its submission to the inquiry, the provision would have 'presented a real risk in ensuring consistency in the approach to and assessment of a provider's ability to meet the higher education framework'. This provision, together with the repeal of section 60 of the act, reasonably prompted some suspicions about the government's motive in introducing the legislation. The conclusion that it actually wanted to weaken the regulator to facilitate the entry of new providers to the market was a very difficult one to avoid.

The question of ministerial directives for quality assessment is extremely important. Quality assessment is an area where I do not think the government had thought through the implications. The unamended bill increased ministerial powers to issue directions to TEQSA in relation to 'the performance of its functions and the exercise of its powers'. That raised the possibility in my mind of the politicisation of TEQSA's decisions by ministerial direction.

The minister's power of direction was not, in the original bill, a disallowable instrument. The minister had given some rather blithe assurances that nothing sinister was intended by the change. It may well be that the minister is well intentioned. This minister may well be. I will concede there is that possibility—I do it quietly and quickly. But, nonetheless, you cannot assume that all ministers would have that level of integrity. You cannot possibly suggest that we know what a minister in the future could do with such unfettered powers unless they were disallowable. The whole point of a disallowable instrument is to provide accountability, a very important principle which this Senate guards jealously. We have the immortal words of Mandy Rice-Davies, who said, 'He would, wouldn't he?' when the assertion was made that he would never do such a thing.

The point, of course, is not whether the minister did in fact intend to interfere in TEQSA's operations for political purposes. The point is rather that the change would have allowed him or any subsequent minister to interfere on political grounds should they choose to do so. That is why I have been so insistent on having this matter a disallowable instrument.

Yet another ill thought through change in the original bill allowed TEQSA to delegate its functions to 'persons who hold an office or appointment under a law of the Commonwealth'. A pretty amazing set of drafting, that! That clearly had to be clarified, because we know that 'any Commonwealth officer' is a very broad remit. It could well have been portrayed as an innocuous change allowing the agency to resolve temporary staffing problems but would have most unintended consequences. The power of delegation was so broad that it raised the possibility of the blurring of roles that should never be blurred when it comes to the question of regulation. A seconded immigration officer, for instance, might bring concerns to the process of assessment which should properly be the work of TEQSA.

The bill also sought to reduce the number of TEQSA's commissioners and to separate the roles of chief commissioner and chief executive. These changes supposedly sought to adopt a more corporate model of governance that would allow greater administrative efficiency. In business operations, however, the CEO is appointed by a board, whereas under the original form of the TEQSA the CEO would have been appointed by the minister. Coupled with the minister's increased powers to issue directions to the agencies, this prerogative appointment raised the spectre of politicisation again. Further, the number of commissioners would be reduced not by attrition but by the spilling of all existing positions. The sacking of a board by legislation would have set a disturbing precedent, with implications beyond the regulation of higher education. It could, for example, have raised the prospect that all the human rights commissioners could be dismissed in the same way if such a precedent were allowed to go unchallenged, or perhaps the Fair Work Australia commissioners.

Labor's amendments, taken together, change these TEQSA proposals in the original bill, which would have resulted in an agency with fewer powers at a time when greater vigilance is actually needed, and in an agency potentially subject to political direction. Those changes needed to be prevented because of a potential for political intervention in the regulation of our higher education scheme. For that reason, Labor proposed amendments to the bill: that TEQSA's discretionary power to conduct assessments of non-threshold standards should not be removed; that an upper limit should be placed on TEQSA's ability to extend registration periods; that the number of commissioners, their role, their relationship with the CEO and the grounds on which they may be dismissed should be clearly identified; and that the minister's power to issue directions to TEQSA should become a disallowable instrument.

Some comment has been made about the relationship between the government and some commissioners. I take the view that it is important, particularly when a new government is established, that senior officers do enjoy the confidence of the minister. I take the view, however, that the political dismissal of boards is not appropriate—there are other ways in which relationships of those types can be resolved. I do not take a simplistic notion, however, that, if the minister has lost confidence in a senior officer, there cannot be things done to resolve that matter. I do not make any suggestion that I would agree in advance to any proposition, but I do think as a general principle it is important for the minister to have confidence in senior officials with whom he is working. That, of course, is all consistent with the principles of merit protection within the Australian Public Service.

However, since this bill was first introduced, I think the minister has made appropriate adjustments consistent with the principles that I have argued here today. The government's amendments ensure that TEQSA's quality assurance function will be maintained; ministerial directives to TEQSA will now be a disallowable matter; the provisions regarding the sacking of commissioners will be removed; and the delegation of powers by TEQSA's commissioners will not only be made within TEQSA itself. Labor welcomes the government's commitment to amend the bill consistent with these principles.

The amended bill is a much more reasonable piece of legislation. It safeguards the reputation of TEQSA and, through it, the reputation of Australia's higher education sector. The international and domestic reputation of the universities and other providers deserves absolutely nothing less. There has recently been some discussion concerning plagiarism, particularly with the operations of a website which has been subcontracting out the writing of essays for students to be used for assessment. I have made some comments about that—I have raised the matter at Senate estimates—and I understand the government has now taken some steps to ensure that these questions are attended to. But that is an example precisely of why you need a strong regulator. We have circumstances here where people have committed fraud—and I believe, prima facie, there is a case of fraud. If that can be demonstrated, there may well be criminal sanctions required. In the first instance, the universities have to take responsibility to ensure quality within their institutions, but there must be a strong monitoring body with real power—real teeth—and it has to be able to protect our reputation as a nation. I recall that during the previous Liberal government Minister Nelson made the observation that, when it is all said and done, our education industry, and our international education industry in particular, is all about reputation. It is all about people's perceptions of Australia being a quality provider of quality qualifications with real integrity.

We need to ensure that there is a regulator there to guarantee that proposition. The problem, of course, with crooks in the education field is that it is a bit like tax avoidance—you can never rest. You can never, ever assume that a set-and-forget policy is going to be satisfactory. That is why this amended bill vindicates the approach taken through the Senate committee process; it vindicates that it is appropriate that there be proper discussion with the government about such matters. Although the government initially resisted the inquiry and suggested we should adopt a 'tick and flick' operation, we demonstrated just how important these processes are. Of course, I am delighted that the government now has completely abandoned its former position. So I take this opportunity—it does not happen very often—to congratulate this minister for his change of heart and for his recognition that he was wrong. I stress how important it is for him to recognise his responsibility to protect the integrity of Australian higher education. I am so pleased to be able to offer Labor's support to this amended bill.

Lee Rhiannon (NSW, Australian Greens) Share this | Link to this | Hansard source

The Greens now support this legislation. When it was first introduced we were deeply concerned about it. We are pleased that we are now at the stage, because of the amendments, where we have unity, as I understand it, across the chamber. That is always a positive, and it is a good example of how the Senate can successfully work in this way.

Australia's higher education system is clearly an important part of the fabric of our society. It is essential to our economy and to the wellbeing of so many individuals. And considering it is supported by billions of dollars of public investment from federal governments and substantial funding from students in the form of student fees, we need to get regulation right. Regulation can be abused in terms of how the regulator is set up. That is why it is so important to get this legislation right. There are over one million higher education students in Australia, 120,000 staff and dozens of universities, as well as private education providers.

When this legislation was first released, one of the very considerable concerns of the Greens was that it was there to work, to make it much easier for private operators. We now have seen how dangerous, how dubious the operations of some of those private for-profit operators can be. That is why so much effort has been put in to get this legislation right.

I agree with the comment of the previous speaker, Senator Kim Carr, when he linked the changes that have come about in this legislation with the committee work of the Senate. It really was the committee work of the Senate—and I congratulate all those who gave evidence and who put in submissions because they helped work through to the very important point of bringing forward the amendments which I understand Labor have put forward and the government have agreed to. It is so important in terms of protecting the integrity and the standards of our higher education system.

The Australian Greens believe adequate regulation and quality assurance mechanisms are crucial to building a strong higher education sector which protects the public interest and the rights of staff and students. Stakeholders across the higher education sector, including students, staff, universities and the federal government, deserve to have mechanisms in place to ensure the vast amounts—we are talking about billions of dollars—of public and private money being spent on higher education are delivering a quality return. We are talking about the future of individuals and the future of the country. This is incredibly important legislation. While the Greens agree with many in the higher education sector that TEQSA's role could be improved, we did not support the overhaul of the organisation as proposed in the original, unamended legislation. I want to put that on the record very clearly.

I was very concerned at the end of 2013 when the coalition government caved in to pressure from the university vice-chancellors and really crippled TEQSA's role in quality assurance and regulation. Strong, quality-assurance mechanisms and a fair regulatory framework are not inconsistent with academic independence and innovation. Given that billions of dollars—I cannot emphasise this enough—are flowing from governments to universities, we need an agency with teeth. It needs to be a real agency, not a mickey mouse job so that the minister of the day has the headline he needs when another scandal breaks about another college, but a real regulator with teeth to ensure that education quality is maintained at the highest levels. That is what we need and that is what we are working to get in this legislation.

We do not want TEQSA to be a light-touch regulator. This has to be said over and over again and we have to be so vigilant here. If we ended up with a light-touch regulator, this would lead to significant concerns which, justifiably, would come from international students and from the Australian public, as well as from those attending the colleges and the higher education institutions. TEQSA's role must be always to ensure that tertiary education, in particular by private providers, meets national standards.

We need to remember it was created by the Rudd government amid an industry plagued with problems in particular among private colleges promoting degrees to international students. We need to remember where this came from: it came from a serious problem which was a real setback for our higher education—how we were perceived on the international market. This legislation is needed for those important reasons.

The need for a strong regulator in the current system where government and students spend billions on higher education providers should be self-evident. The Greens do not support the notion that a private market in and of itself provides adequate oversight and regulation. Education is a public good, and in so far as there is a private market for the delivery of higher education the government must play an essential role in ensuring the quality of that education is of the highest standard so that graduates are best equipped for the future. In their submission to the Senate inquiry into this bill, the National Union of Students argued that:

Students are ultimately the prime beneficiaries of a strong quality regulatory framework.

Unfortunately what we saw from this government in the May budget—and in this bill—was the gutting of regulation in higher education at the same time as a massive expansion of the sector was being proposed. The beneficiaries of this new regime would likely be private, higher education providers, who would doubly benefit from the proposal to extend Commonwealth funding and from the proposed gutting of TEQSA. The losers would be students and staff, subjected to a weakened regulatory regime.

The need for a strong regulator in such an environment becomes even more necessary than it is currently. It is incredibly worrying that the federal government is simultaneously proposing to massively expand the private higher education sector, at the expense of the public sector, while stripping back TEQSA's functions and cutting its funding by 41 per cent. These factors need to be linked. They are very serious and they have implications for what is the government's intent.

The Greens have a number of concerns relating to the legislation in its current form. The removal of quality assurance functions from TEQSA raises serious questions about where that responsibility will now lie, or if in fact it will fall within any government department or agency at all.

As the National Union of Students argues:

What happens to the quality assurance improvement functions that AUQA used to perform? The [Lee] Dow-Braithwaite report argues that aspects of sector or discipline-based quality assurance – best practice and continuous improvement – could be better delivered through the Office of Learning and Teaching. NUS would be concerned about the adequacy of current resource levels for the Office of Learning and Teaching to take on this role. The Government needs to reveal its intentions with regard to these functions.

Again, this underlines why the amendments were needed, why this legislation had to change from its original form.

We also had concerns around the proposals to authorise the minister to reduce the number of TEQSA commissioners, provide the minister with greater flexibility in terms of commissioner appointments, as well as the proposed legislation's impact on current commissioners. As noted by the National Tertiary Education Union in their submission to the Senate inquiry, these changes raise:

… serious question about procedural fairness and natural justice for people who have entered into an employment contract in good faith. If the Minister wishes to have the power to dismiss a Commissioner or Commissioners on grounds other than those currently specified in the Act, then he or she should amendment the legislation to change the reasons and not use transitional arrangements associated with changes to the Act to remove people for unspecified reasons.

In keeping with other decisions made by this government, the proposal to slash TEQSA's funding nearly in half and gut many of its important functions was not relayed to the public prior to the last election—again, a very worrying aspect of how this government is conducting its higher education policy overall. It certainly was a factor in the debate that we have just had, on Minister Pyne's major higher education bill, and it is certainly a highly unsatisfactory way for any government to operate. As with the government's proposed cuts to higher education, the government remained silent, waiting till it won office to deliver for its mates in the private sector. That is one of our major concerns. I have particular concerns about how this bill was developed, but it is pleasing that we have been able to agree on the amendments, so many of the issues of concern that the Greens have addressed have now been amended in the bill, which I understand that the government is now willing to support.

Marise Payne (NSW, Liberal Party, Minister for Human Services) Share this | Link to this | Hansard source

I thank the senators who have spoken on the Tertiary Education Quality and Standards Agency Amendment Bill 2014 for their participation in the debate. The bill provides for a number of amendments, as has already been discussed in the chamber. I commend this bill to the Senate.

Question agreed to.

Bill read a second time.