Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I give notice that, on the next sitting day, I shall move:

That the provisions of paragraphs (5) to (8) of standing order 111 not apply to the following bills, allowing them to be considered during this period of sittings:

Crimes Amendment (Strengthening the Criminal Justice Response to Sexual Violence) Bill 2024

Fair Work Amendment Bill 2024

Financial Framework (Supplementary Powers) Amendment Bill 2024

Foreign Acquisitions and Takeovers Fees Imposition Amendment Bill 2024

Treasury Laws Amendment (Foreign Investment) Bill 2024

National Vocational Education and Training Regulator Amendment (Strengthening Quality and Integrity in Vocational Education and Training No. 1) Bill 2024

Passenger Movement Charge Amendment Bill 2024.

I also table statements of reasons justifying the need for the bills to be considered during these sittings and seek leave to have the statements incorporated in Hansard.

Leave granted.

The statements read as follows—

CRIMES AMENDMENT (STRENGTHENING THE CRIMINAL JUSTICE RESPONSE TO SEXUAL VIOLENCE) BILL 2024

Purpose of the Bill

The Bill amends the Crimes Act 1914 to implement trauma-informed measures that better support vulnerable persons when appearing as complainants and/or witnesses in Commonwealth criminal proceedings, whilst maintaining appropriate criminal procedure safeguards.

Reasons for Urgency

Passage of the Bill in the 2024 Autumn sittings is required to implement a number of outstanding recommendations of the Final Report of the Royal Commission into Institutional Responses to Child Sexual Abuse. It is also required to advance the broader work of the Australian government on strengthening criminal justice responses to sexual assault, including Theme 2 of the First National Action Plan of the National Strategy to Prevent and Respond to Child Sexual Abuse 2021-2030, and the Standing Council of Attorneys-General Work Plan to Strengthen Criminal Justice Responses to Sexual Assault 2022-2027.

Passage of the Bill will also ensure the Australian Law Reform Commission (ALRC) has ample time to consider the Bill and its practical effects on the criminal justice process as part of its inquiry into the justice system's response to sexual violence. The ALRC has been asked to provide its final report to the Attorney-General by 22 January 2025.

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FAIR WORK AMENDMENT BILL 2024

Purpose of the Bill

The Fair Work Amendment Bill 2024 will amend the Fair Work Act 2009 (Fair Work Act) to provide that contravening an order of the Fair Work Commission made under Division 6 of Part 2-9 of the Fair Work Act, relating to the employee right to disconnect (a right to disconnect order) as set out in the Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023 (Closing Loopholes No. 2 Bill), does not expose a person to a criminal penalty.

The Bill will ensure that the treatment of right to disconnect orders made by the Fair Work Commission will be consistent with the treatment of orders made by the Fair Work Commission under the stop bullying and stop sexual harassment provisions already set out in the Fair Work Act.

Reasons for Urgency

The Closing Loopholes No. 2 Bill did not explicitly provide for criminal penalties to apply to a contravention of a right to disconnect order, but the interaction of those provisions with existing section 675(1) of the Fair Work Act makes it necessary to legislate a specific provision to rule them out. The Closing Loopholes No. 2 Bill passed the Parliament on 12 February 2024. Before passage, the Government sought to move an amendment to the Closing Loopholes No. 2 Bill to provide that contravening a right to disconnect order does not expose a person to criminal penalties. Leave was not granted in the Senate for this amendment to be moved.

The right to disconnect provisions in the Closing Loopholes No. 2 Bill will commence six months after that Bill receives Royal Assent (with a further 12 month delay to commencement in relation to small business employers—that is, 18 months following Royal Assent).

The introduction and passage of this Bill in the 2024 Autumn sittings will ensure the amendments to section 675 of the Fair Work Act commence at the same time as the right to disconnect provisions.

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FINANCIAL FRAMEWORK (SUPPLEMENTARY POWERS) AMENDMENT BILL 2024

Purpose of the Bill

The Bill amends the Financial Framework (Supplementary Powers) Act 1997 (the FFSP Act) to remove certain limiting words from section 32B, which confers power on the Commonwealth to make, vary or administer an arrangement or grant and similar words from section 39B, which confers powers on the Commonwealth in relation to companies.

The amendments would clarify the operation of powers conferred by sections 32B and 39B of the FFSP Act, where powers to engage in spending may also be available in other legislation.

The amendments make clear that sections 32B and 39B provide legislative authority for spending that falls within those terms, even if it is possible that the Commonwealth could engage in that spending activity under another spending power.

Reasons for Urgency

The amendments are required to put beyond doubt that the FFSP legislative framework operates how it has been understood to operate in circumstances where another general spending power may be available in other legislation.

Passage of the bill in the 2024 Autumn sitting is required to give certainty to Commonwealth entities relying on the FFSP legislation that current and future spending activities which are specified in the FFSP Regulations are supported by the spending powers in the FFSP Act.

The validation provisions would regularise the status of past spending and government activity in purported reliance on sections 32B and 39B, in the event that any such past spending or activity may not have been valid by reason of there having been an alternative source of power.

Some portfolios have enacted or initiated amendments to their legislation to clarify the operation of spending powers in their Acts and section 32B of the Act, to put beyond doubt that both may be available to support particular spending.

There would be a large administrative burden on the Commonwealth and Parliament if portfolios began amending all individual Acts to specify intended interaction with section 32B of the FFSP Act. This amendment would provide a whole of government response.

The FFSP framework, established by the FFSP Act and the Financial Framework (Supplementary Powers) Regulations 1997 (FFSP Regulations) supports the Government from time to time to deliver immediate or urgent support to the Australian community. In the recent past, the FFSP framework has been used to support a broad range of spending, including emergency payments during the COVID-19 pandemic and the 2020 bushfires and floods.

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FOREIGN ACQUISITIONS AND TAKEOVERS FEES IMPOSITION AMENDMENT BILL 2024

TREASURY LAWS AMENDMENT (FOREIGN INVESTMENT) BILL 2024

Purpose of the Bills

The Foreign Acquisitions and Takeovers Fees Imposition Amendment Bill 2024 will implement the Government's commitment to ensure foreign investment in housing is consistent with the Government's agenda to boost Australia's housing supply by:

The Treasury Laws Amendment (Foreign Investment) Bill 2024 will clarify the uncertainty associated with the interaction between foreign investment fees, and similar state and territory property taxes, and double taxation agreements implemented domestically by the International Tax Agreements Act 1953, to ensure that the foreign investment fees and similar imposts prevail.

These measures will further encourage foreign owners to increase Australia's housing stock and support the integrity of the foreign investment rules. The measures are estimated to increase receipts by $525.0 million, and increase payments by $3.5 million over the five years from 2022-23.

Reasons for Urgency

Passage of these bills in the 2024 Autumn sittings is required to support the Government's housing agenda, maximise revenue impacts, and reduce the opportunity for applications to be brought forward which would undermine the Government's policy intent.

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NATIONAL VOCATIONAL EDUCATION AND TRAINING REGULATOR AMENDMENT BILL

Purpose of the Bill

The National Vocational Education and Training Regulator Amendment (Strengthening Quality and Integrity in Vocational Education and Training No.1) Bill 2024 (the Bill) amends the National Vocational Education and Training Regulator Act 2011 (NVETR Act) to ensure the National VET Regulator (the Regulator) has the necessary regulatory tools to take swift action to address integrity risks posed by non-genuine or unscrupulous NVETR Act registered training organisations (NVR RTOs), as described in section 3 of the NVETR Act. The Bill also ensures greater scrutiny of new NVR RTOs and promotes a quality vocational education and training (VET) sector that benefits students, industry, and the community. The Bill further incorporates some changes from the lapsed Regulator Performance Omnibus Bill 2022 (the Omnibus Bill).

The Regulator is established under the NVETR Act and is responsible for registration and compliance monitoring of NVR RTOs, as well as the accreditation of VET courses. Section 157 of the NVETR Act sets out the Regulator's functions. All NVR RTOs must comply with the requirements of the NVETR Act and its associated legislative framework.

In 2023, the Australian Government released the Rapid Review into the Exploitation of Australia's Visa System (the Nixon Review) which identified the risks posed by NVR RTOs that do not have the genuine purpose of delivering quality training and instead undermine integrity in the VET sector and exploit vulnerable students. The 2018 All eyes on quality: Review of the National Vocational Education and Training Regulator Act 2011 (the Braithwaite Review) also highlighted the need to strengthen quality and integrity in VET by placing more rigorous legislative requirements on NVR RTOs at the point of registration and throughout the registration period. The Braithwaite Review also recommended strengthening entry to market requirements to ensure NVR RTOs are committed to and capable of providing quality VET. The Bill implements recommendations from the Braithwaite Review and responds more broadly to the findings in the Nixon Review in relation to non-genuine VET providers.

The lapsed Omnibus Bill was introduced in 2022 to support best practice regulator performance by streamlining processes to improve regulator efficiency, reduce regulatory impost on regulated entities and clarify legislative requirements for the regulated community.

The amendments in the Bill support whole-of-government priorities to ensure students receive quality training by strengthening regulatory levers within the VET sector. The amendments would empower the Regulator to take decisive action to prevent non-genuine or unscrupulous NVR RTOs using their business operations as a veil of legitimacy for fraudulent activity or to circumvent regulatory requirements in respect of training and assessment.

Outline of the Bill

Integrity risks posed by dormant NVR RTOs using their registration for non-genuine or fraudulent purposes, or those not demonstrating a genuine commitment to training delivery (as highlighted in the Braithwaite Review), will be addressed by amendments to enable the automatic lapse of an NVR RTO's registration (Part 1 of the Bill). Specifically, where an NVR RTO has not delivered training and/or assessments for a period of 12 consecutive months its registration will automatically lapse by force of law. However, to ensure procedural fairness, all NVR RTOs will be able to apply to the Regulator for an extension to this 12-month period ahead of their registration lapsing. Where an NVR RTO is genuinely committed to providing training and assessment, but has legitimate, reasonable justification for not providing training or assessment, the Regulator will be able to grant an extension for a maximum of 12 months, after which no further extensions are available. The extension would ensure that the NVR RTO's registration will not lapse until the end of the period specified in the extension. It is intended that extensions will only be granted where the reason for which the NVR RTO has not provided training or assessments is demonstrably outside the control of the NVR RTO. Such limited circumstances could include, for example, natural disasters such as fire, flood, or pandemic events. Provided an NVR RTO begins delivering training and/or assessment within the period specified in the extension and it demonstrates that it is otherwise capable and committed, the NVR RTO's registration will not lapse after the extension period concludes. The Bill also proposes amendments to ensure that extension decisions are subject to internal and external merits review (via the Administrative Appeals Tribunal or, subject to the passage of legislation, the proposed Administrative Review Tribunal) in line with other reviewable decisions under the NVETR Act. The Bill proposes amendments to ensure that extension decisions are reviewable decisions under the NVETR Act.

Consistent with recommendations of the Brathwaite Review, Part 2 of the Bill includes amendments to prevent an NVR RTO from changing, in the first two years of its registration, the courses it is registered to deliver to students. These amendments will help ensure those that are new to the sector are able to focus on delivering quality training or assessments in the segment of the market for which they were originally approved. Further, this would provide the Regulator with the opportunity to assess an NVR RTO's operations over a reasonable period to ensure the organisation has a sound understanding of the educational integrity and commitment required to operate in the sector prior to expanding its course offerings.

The amendments proposed in Part 3 of the Bill would expand—from 90 to 120 days—the period in which the Regulator can conduct internal review of decisions, where a review application is made by an NVR RTO. While it is expected that most reviews will be completed within the current 90 day timeframe, this amendment will ensure the Regulator gives due consideration to review decisions, which are more complex and require detailed consideration.

Part 4 of the Bill includes amendments that allow the Regulator to consider and make decisions in relation to initial applications for registration in an order determined by the Regulator. Importantly, these amendments still require the Regulator to make a decision on applications for registration but provide the Regulator with greater flexibility in terms of how it prioritises, considers, and makes decisions in relation to applications—for example, taking into consideration areas of skills training shortages or community need. The amendments also give the Regulator the ability to decide non-complex applications quickly and efficiently, while applying appropriate scrutiny to complex applications or applications that raise potential integrity issues.

Part 5 of the Bill includes amendments that will empower the Minister to determine, via legislative instrument, a specified period where the Regulator is not required to, or must not, accept or process initial applications for NVR RTO registration under the NVETR Act. This will assist the Regulator to manage and address integrity risks identified in the VET sector in relation to NVR RTO market entry. The legislative instrument may apply to all initial applications for registration or to one or more classes of initial applications. Allowing for the instrument to apply to a particular class or classes of initial applications enables the Regulator to target specific cohorts of high-risk applicants or specific VET courses, without disrupting the acceptance and processing of other applications. The determination will require the Minister to consult with the Regulator and seek the Skills and Workforce Ministerial Council's agreement to the instrument prior to implementation. This will ensure the instrument cannot be made without the agreement of the states and territories and that the views of the Regulator are taken into consideration prior to the Minister making the instrument.

Amendments proposed in Part 6 of the Bill expand and strengthen offence and civil penalty provisions regarding false and misleading representations made by NVR RTOs. These amendments broaden the existing provisions to clarify that prohibited conduct includes making false and misleading representations in relation to the NVR RTO's operations. This strengthens consumer protections for students where unscrupulous or non-genuine NVR RTOs seek to attract student enrolments through false and misleading claims in relation to their operations. Inserting new provisions clarifies that prohibited conduct could include, but is not limited to:

Part 7 of the Bill will increase the penalty units specified under certain provisions in the NVETR Act to deter non-genuine or unscrupulous providers from breaching the NVETR Act and to reduce the financial benefits and incentives to engage in conduct in breach of the NVETR Act.

The maximum penalty units for a breach of a relevant offence or civil penalty provision under Part 6 of the NVETR Act will increase, along with the penalty units specified under section 64, subsection 71(3) and subsection 79(2) of the NVETR Act. The amendments provide for increased maximum penalties for offences and civil contraventions which threaten VET integrity, student protection or otherwise are indicative of practices that may be associated with non-genuine or unscrupulous providers. It is intended that an increase in penalty units send a strong signal to non-genuine or unscrupulous NVR RTOs and potential providers that heavy penalties will be applied for breaches of the legislation. These increased penalty provisions are the maximum penalties that could be imposed by a court and are intended to ensure that the imposition of such penalties operate as more than just a cost of doing business for a non-genuine or unscrupulous provider.

The Bill would also increase the penalty units specified under subsections 211(3) and 211(4) of the NVETR Act. Those subsections relate to a failure to provide a copy of VET student records, which is an issue that affects students when a provider ceases to operate, or the provider's registration is cancelled or lapses. A higher penalty may support better student outcomes by ensuring that providers and their executive officers are incentivised to provide the Regulator with a copy of affected students' records in such situations.

The amended penalty regime will apply in relation to offences committed, or contraventions, acts or omissions that occur on or after the commencement of the Bill. Courts have the discretion to determine the appropriate penalty amount, up to the maximum set under the law.

Consistent with the principles set out in the Attorney-General Department's Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (the Guide), the increased maximum penalty units prescribed under the amended provisions will be adequate to deter and punish the worst-case offences. Those involved in breaches of the NVETR Act may receive large financial benefits from their misconduct. The penalty units in the NVETR Act have not been increased since the NVETR Act commenced, and the increases the Bill proposes reflect the changing structure and nature of the VET market over that period. The increase of financial penalties is appropriate for regulatory and disciplinary purposes. The Guide notes that a higher maximum penalty will be justified where there are strong incentives to commit the offence, or where the consequences of the commission of the offence are particularly dangerous or damaging.

The amendments proposed in Part 8 of the Bill will help support efficient and effective regulation of the VET sector. These amendments were included as part of the lapsed Omnibus Bill, which senior State and Territory Government officials were consulted on. Specifically, the amendments clarify the use of personal information contained in audit reports, align registration requirements with similar requirements under the Education Services for Overseas Students Act 2000 (ESOS Act) and clarify review processes to better align with the internal review process in the Tertiary Education Quality and Standards Agency Act 2011 (TEQSA Act). This streamlines interactions for entities regulated by both the Regulator and TEQSA under the ESOS Act. The Bill also makes technical amendments to a number of sections in the NVETR Act to ensure alignment with new provisions.

Finally, Part 9 of the Bill would amend the National Vocational Education and Training Regulator (Transitional Provisions) Act to set out transitional arrangements. Those arrangements would ensure the effective and efficient operation of the Bill on commencement by specifying how the amendments will operate during the period immediately post-commencement. For example, section 4 of the transitional provisions provides that Part 2 of the Bill relating to change to scope of registration will only apply to applications made on or after the day of the Bill's commencement (the day the Bill receives the Royal Assent). Applications received prior to this date will not be affected by the amendments.

Reason for Urgency

The Bill is urgent and requires introduction and passage in the 2024 Autumn sittings period to ensure that amendments can be implemented as soon as possible. This is necessary to assist the Regulator in taking action against providers who do not intend to deliver quality training and are being used as a veil of legitimacy for fraudulent activities. The changes would ensure the sector and the broader community can have confidence that NVR RTOs delivering and/or assessing VET are providing quality education and training and are legitimate operators. If the Bill is not passed in the 2024 Autumn sittings the Regulator will not be in a position to take action against non-genuine and unscrupulous providers in a timely manner, leaving students and Government exposed to fraudulent and otherwise exploitative activities of unscrupulous and non-genuine NVR RTOs.

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PASSENGER MOVEMENT CHARGE AMENDMENT BILL

Purpose of the Bill

The Bill gives effect to the 2023-24 Budget measure to uplift the Passenger Movement Charge from $60.00 to $70.00, effective as of 1 July 2024.

Reasons for Urgency

Passage of the Bill in the 2024 Autumn sittings is required to allow sufficient time for implementation of necessary IT systems by industry stakeholders before the increase to the charge takes effect. Industry stakeholders have been advised that the increase will take effect from 1 July 2024, pending passage of the Bill, and are required to facilitate collection of the charge from that date.