Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

by leave—I move opposition amendments (1) to (3) on sheet 2381 together:

(1) Schedule 1, item 22, page 12 (after line 12), at the end of section 231C, add:

Note: Legislative instruments and explanatory statements must be tabled in each House of the Parliament under sections 38 and 39 of the Legislation Act 2003.

(2) Schedule 1, item 22, page 12 (after line 29), at the end of section 231D, add:

Note: Legislative instruments and explanatory statements must be tabled in each House of the Parliament under sections 38 and 39 of the Legislation Act 2003.

(3) Schedule 1, item 22, page 13 (after line 8), at the end of Division 3C, add:

231G Notice of determination must be published on National VET Regulator's website

(1) If the Minister makes a determination under section 231C or 231D, the National VET Regulator must, as soon as practicable after the determination is registered on the Federal Register of Legislation, publish on the Regulator's website:

(a) a notice that:

(i) states that the determination has been registered; and

(ii) describes the determination; and

(b) a copy of the explanatory statement for the determination.

(2) A failure by the National VET Regulator to comply with subsection (1) does not affect the validity of a determination made under section 231C or 231D.

I thank the government for acknowledging that they will be supporting both amendments. This amendment seeks to engage with the same new power established by this bill, as does amendment 2380. Whereas that amendment is going to be focused on enshrining a specified time frame, this amendment seeks to increase transparency. This amendment will ensure that, if the minister makes a determination under sections 231C or 231D, the national VET regulator must, as soon as practicable after the determination is registered on the Federal Register of Legislation, publish it on the regulator's website.

I also note that this amendment makes it explicit that a copy of any legislative instrument made by the minister under the bill must be delivered to each house of the parliament within six sitting days of that house after the registration of the instrument and, if a copy is not laid before each house of the parliament in accordance with this section, the legislative instrument is repealed immediately after the last day for it to be so laid. This amendment will enshrine increased transparency and ensure that there is greater accountability about any use of the ministerial power established in this bill.

As I said in my second reading speech when I was addressing the amendments that we are now moving, the principle that we are operating under is that we obviously expect this power will be rarely used and, as such, when it is used, there should be the highest level of transparency and accountability in relation to that use, based on consultation. Certainly the amendment that we are moving will improve the legislation. As I said, I thank the minister for indicating that the government will support it.

Mehreen Faruqi (NSW, Australian Greens) Share this | Link to this | Hansard source

This bill empowers the minister to determine by legislative instrument that the regulator, ASQA, need not, or must not, accept or process initial applications for RTO registration, and this amendment clarifies by an order in legislation that, if a minister exercises this power to suspend RTO applications, they must table a legislative instrument along with an explanatory statement in each house of the parliament. This is due to the operations of sections 38 and 39 of the Legislation Act 2003.

Additionally, this amendment requires the national VET regulator to publish on their website a notice describing the determination and a copy of the explanatory statement of determination to suspend the processing of applications for an RTO. For these reasons, these amendments do increase clarity on how the legislation works and they do increase accessibility of information about the minister's suspension of the processing of RTO applications, so the Greens support these amendments.

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

I thank Senator Cash for doing her job and mine as well, but I thought I should just put on the record that the government will also be supporting these amendments.

Question agreed to.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

by leave—I move opposition amendments (1) to (3) on sheet 2380 together:

(1) Schedule 1, item 22, page 11 (after line 16), after subsection 231C(1), insert:

(1A) The day specified in an instrument made under subsection (1) must not be later than 12 months after the day the instrument commences.

Note: While an instrument made under subsection (1) cannot be varied to specify a day that is later than 12 months after the instrument commences, the Minister can make another instrument.

(2) Schedule 1, item 22, page 11 (after line 25), after subsection 231C(3), insert:

(3A) The day specified in an instrument made under subsection (3) must not be later than 12 months after the day the instrument commences.

Note: While an instrument made under subsection (3) cannot be varied to specify a day that is later than 12 months after the instrument commences, the Minister can make another instrument.

(3) Schedule 1, item 22, page 12 (after line 17), after subsection 231D(1), insert:

(1A) The day specified in an instrument made under subsection (1) must not be later than 12 months after the day the instrument commences.

Note: While an instrument made under subsection (1) cannot be varied to specify a day that is later than 12 months after the instrument commences, the Minister can make another instrument.

This amendment seeks to enshrine a 12-month time limit for any instrument made by the minister which would seek to pause the registration of new registered training organisations. Based on the consultation that we've had, we believe that this is probably the most significant change proposed by this bill. It enables the Minister for Skills and Training to seek to directly control market entry of new registered training organisations. The new power also allows the minister to direct the national VET regulator, the Australian Skills Quality Authority, by legislative instrument to pause the registration of a new registered training organisation. I note that the legislation provides that this does need to be agreed with state and territory skills ministers, nevertheless it is a significantly new power that we are agreeing to in this bill. As I said, the opposition has been out there consulting with the sector, and the minister has had discussions with the shadow minister about how we can improve the legislation. Again, I thank the government for indicating that they will support the amendment, as the minister said in his speech. The first one was passed to ensure transparency, and this one is now being passed to put in place the time limit.

In terms of the amendment though, we will be seeking to mandate that a determination to pause the registration of a new training organisation be in place for a defined period of time. The reason that we are doing that is to ensure, again, that it does not become a de facto ban. We wanted any pause to be no longer than 90 days. The government, during the negotiations, had said that their preference was for a 24-month period. Again, based on negotiations, the government and the opposition have come to the agreement that we could settle on a one-year time frame. I think, after working with the government, the amendment does now improve the legislation, and I thank the Senate for its support.

Mehreen Faruqi (NSW, Australian Greens) Share this | Link to this | Hansard source

This bill empowers the minister to determine by legislative instrument that the regulator, ASQA, need not or must not accept or process initial applications for RTO registration for a period specified in the instrument. The bill currently places no maximum time limit on that period. This amendment limits to a maximum of 12 months the period that the minister can suspend the processing or acceptance of RTO registration applications, and, if the minister seeks to suspend applications for a period of time longer than 12 months, they would need to table another legislative instrument. This does ensure parliamentary scrutiny of the minister's power to suspend the processing of RTO applications at least every 12 months, which is an important consideration for the Greens as well. So we do support this, and we support an increase in parliamentary scrutiny of the ministerial discretion. We will be supporting this amendment.

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

The government will also be supporting the amendment.

Question agreed to.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I just have some brief questions now in relation to the bill. The amendments that have now passed will ensure that the pause, as we said, can only be in place for 12 months. In terms of the actual time frame, how will the length of time that the pause is in place be decided? Or should I ask this: will it be decided by ASQA or the minister?

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

The bill requires that we consult with ASQA and state and territory ministers before making a determination.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Can I confirm that it is the minister that makes the determination but after the consultation with, as you said, the state and territory ministers and ASQA?

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

I'd probably expand on that and say 'reach agreement with the state and territory ministers'.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

In that process, how will the length of time that the pause is in place be decided by ASQA? What are the relevant factors for determining it?

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

We would work with ASQA to determine the appropriate circumstances, but they would be on a case-by-case basis.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

The minister has also stated, 'The determination may apply to one or more classes of applications.' Can I get clarity about the definition? What do you mean by a class of application? So, for example, could an entire industry be treated as a class of application, or is it narrower than that? Are you able to give an example of a class of application?

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

It would be determined on the risk that would be identified by ASQA and therefore would be dealt with on a case-by-case basis.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

That's how it's determined, but what is the definition of a class of applications? As I said, could an entire industry be treated as a class?

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

I think classes of courses would be determined, but it would ultimately be advice from ASQA that would determine that.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Classes of courses—I understand that completely. And then you've said, 'But ultimately it will be determined by advice from ASQA.' Does that mean that at this stage there's no parameter around what a class of application is, and it is literally on the advice of ASQA, so, in one case, ASQA may say that there's a class of courses that are to be defined as a class of application, which then means that it could be an entire industry? I'm trying to work out what the parameters of 'class of application' are. Are there any parameters around that at this point in time, or is it that literally anything could be and that it will be worked out on the basis of advice coming from ASQA?

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

The class determination, in our view, would enable us to be more nuanced in how we determine an outcome.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

If the answer is, 'We don't know,' I can accept that as an answer, but I don't think we're quite getting to where the question is going. You said it allows you to be more nuanced in your outcome. I'll put another scenario to you to try and understand the parameters of 'class of application'. As I said, I understand classes of courses. I can absolutely understand how that could become a class of application. Could you then define a class of applications as all new private RTOs? Is there a parameter in relation to that?

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

They would be determined on a case-by-case basis, as determined by the regulator and also working in conjunction with the minister.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I understand that then—no parameters. It is case by case, as you say, working in conjunction with ASQA and then as determined by the minister, because the minister is the one that has the ultimate decision-making power. Does the minister have to accept the advice of ASQA?

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

We have to operate in consultation with ASQA.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Can you be slightly more definitive. My understanding is that what you've said, in answer to my question, is no. Working in consultation never means that you have to accept the advice. Does the minister have to accept the advice of ASQA? If ASQA says, 'This is a class of application,' does the minister have to accept the advice, or can the minister listen and say, 'Thank you for that; however'—and put in place a different class of application?

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

ASQA's advice is a key component, but the minister would make the determination, along with his state and territory counterparts.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Is there anything in the legislation that would stop you putting in place a class of application for all new RTOs, therefore pausing new registrations across the board? Is there any express provision that says that can't occur?

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

I don't think we'd go to hypothetical situations like that. How they would be determined is a case-by-case basis, with information provided by the regulator to the minister.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Putting aside the hypothetical, I ask: is there anything in the legislation that prevents the minister from stating that all new RTOs are a class of application?

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

The legislation gives the minister the ability to identify risks to the sector and, as part of that, take on board advice from the regulator and also state and territory ministers.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

In terms of the state and territory skills ministers' role, is this through the National Cabinet-level body?

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

It's through the Skills And Workforce Ministerial Council.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

How will they provide their agreement to the use of the new power? What's the process? Is the ultimate way they do that going to be worked through? For example, would this have to be done in a meeting of the ministerial council? Could it be done by letters? Could it be done by correspondence? Could it be agreed in one of the telephone hook-ups they have?

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

My understanding is it is the processes under the act, and they would have to agree to the words that are in the determination.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

In terms of the agreement, is it a simple majority, or is it a unanimous agreement? What occurs if states disagree? Each state, as we know, has its own vote. That includes the federal minister, who has one vote. What will occur if states disagree with the federal minister? Is it a simple majority, or is it by unanimous agreement? And what is going to occur if the states disagree with the federal minister?

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

It is a majority decision, and, if states disagreed, we would take on board that feedback, as part of any decision made through the ministerial body.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Obviously, I'm a Western Australian senator, so this is relevant both to my state and to Victoria. Could there arise a situation where the federal minister seeks agreement from his state and territory colleagues, the pause is put in place—so that's fine; the process there has worked—but registrations continue to be allowed in Victoria and Western Australia, given they have their own accrediting authorities?

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

This applies only to entities registered under this act.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

If I could, I will again turn to the role of ASQA, in terms of what the role of ASQA is in this. What is the mechanism by which ASQA would provide their view to the minister with respect to recommending the ceasing of processing of applications? Just to give you some guidance, does it have to be written? Could it be verbal advice? Is there going to be a formal reporting requirement established, or is it just going to be ad hoc? And who within ASQA will make the call that a threshold has actually been met to call on the minister to exercise the power?

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

The process isn't set out in the act. It would be done on a case-by-case basis as determined by ASQA.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

That is understood. So it is not set out in the act; it is ASQA themselves. When do you envisage ASQA will have this process put in place, and will they need to provide the minister with a copy of the process so that the minister knows that the process has been gone through correctly?

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

ASQA are an independent authority, so they would determine the process that they go through, but they would be required to operate within the act on this.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

In terms of the understanding of the threshold that would be required for the minister to direct the regulator to cease accepting registrations under the new power, can you just define what a 'considerable' influx of applications is? For example, how many would that need to be?

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

Again, that would be determined on a case-by-case basis, with the element of risk determined by ASQA.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Again, there's no actual answer to that. It's on case-by-case basis, on the element of risk. In terms of a little bit more specificity, could it be a proportion compared to normal rates? I'm just trying to understand what the actual threshold is. You say a 'considerable' influx of applications. Could that be five? One might say that 'considerable' is not necessarily defined as five. How are you actually setting that threshold?

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

I'm trying to be helpful. It would be determined by ASQA, based on the risk to the sector. I imagine they'd be using their experience and judgement in regard to that.

Bill, as amended, agreed to.

Bill reported with amendments; report adopted.