Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2010-11
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
THE SENATE
NATIONAL VOCATIONAL EDUCATION AND TRAINING REGULATOR
BILL 2010
ADDENDUM TO THE
REPLACEMENT EXPLANATORY MEMORANDUM
The following addenda respond to the Senate Education, Employment and Workplace
Relations Committees report of 21 March 2011.
After the fifth paragraph of the General Outline to the Bill (which commences
`The NVR will form the basis of quality assurance in the VET sector'), add the
following:
`One of the key objectives of the implementation of a National VET Regulator is to
ensure stronger regulation. In announcing the decision to establish a National VET
Regulator the Australian government said it would `develop strong and cohesive
national regulatory arrangements for VET'. A regulator with teeth.
Recent problems in the international student market highlighted weaknesses in the
current regulatory system and in particular the domestic regulatory framework which
underpins the international student training quality assurance. In the 2010 Baird
report, it was noted that:
Many submissions raised concerns that the level of monitoring and
enforcement work undertaken, and seen to be undertaken, by the various
regulatory bodies is inadequate and ineffective.......Too many international
education providers have become comfortable with the idea that they will not
get caught, and if they do get caught, the sanctions will be weak and they will
be given time to come up to standard. This is not a sensible way to operate a
regulatory system.
Stronger, simpler, smarter ESOS: supporting international students p22
The COAG International Student Strategy working group found that:
Issues associated with the delivery of education services to international
students highlighted a number of pressures on the current regulatory
arrangements in the VET sector. The Working Group identified that there
were no issues around quality assurance specific to international students, but
that they relate to the Australian Quality Training Framework (AQTF) and that
the standards in the AQTF impact on international students.
The importance of the VET sector to Australia's skills requirements and productivity
means that serious non-compliance with VET regulation can have consequences that
go beyond fair trading and consumer (i.e. student) protection issues. Serious non-
compliance by only a few providers has the potential to undermine confidence in the
entire sector. It also has the potential to pose health and safety risks to the public
through the provision of qualifications to students, who have not completed the
necessary requirements, who then participate in the building and construction or
electrical industries.
An example of the type of behaviour that can occur is in the Report on Corruption in
the Provision and Certification of Security Industry Training (ICAC, 2009). The
Commission identified a level of corruption in security industry training where both
RTOs and students were complicit in deceiving the registering authority. RTOs were
falsely claiming the students had an adequate level of English, and had passed
examinations where the students had poor or no English skills and had been given the
answers to the exam in advance by the RTO.
The 2010 McCann report, Regulation of VET services for overseas students in South
Australia, recommends:
a shift to a much stronger compliance based model of regulation .......new
powers for the regulator, new criminal and civil offences and the acquisition of
new skills to support compliance based regulation. Because of a lack of clarity
around timing and the speed at which the market and policy environment is
changing, the report argues strongly that South Australia should adopt this
model now rather than wait for the national system of regulation to emerge.
Regulation of VET services for overseas students in South Australia, Executive
Summary v
The National VET Regulator bill seeks to establish a suite of regulatory responses
which the National VET Regulator can use to secure compliance. It creates an
escalating hierarchy of sanctions which can be deployed depending on the
circumstances of the breach, the history of the provider and the risks associated with
the training delivered. The existence of criminal sanctions is recognised as a
significant tool in deterrence:
The greater the heights of tough enforcement to which the agency can escalate
(at the peak of its enforcement pyramid), the more effective the agency will be
at securing compliance and less likely it will have to resort to tough
enforcement. Regulatory agencies will be able to speak more softly when they
are perceived as carrying big sticks.
John Braithwaite in Sparrow, Malcom K. `The Regulatory Craft' p41.
The decision to pursue criminal penalties is one that the National VET Regulator will
take in the context of the effective use of its resources and would require referral of
matters to the Commonwealth Director of Public Prosecutions. Authorised officers
may only enter premises with consent or under warrant issued by a magistrate. These
are important checks and balances.'
After the fourth paragraph of the general outline of Part 6, (which reads `Part 6
of this Bill sets out offences and civil penalty provisions. It also provides for
enforceable undertakings, infringement notices and injunctions'), add the
following:
`The offences found at Part 6 relate to behaviour which goes to the integrity of the
VET sector and public (including employers and licensing bodies) confidence in skills
and qualifications, taking into account the experiences of the current State and
Territory VET Regulators.
The use of criminal penalties is considered appropriate because:
· The policy decision to establish the NVR was made in the context of
strengthening the regulatory system.
· There have been instances in the VET sector of corruption and serious non-
compliance where criminal penalties have been warranted.
· Having criminal sanctions as the peak of its enforcement powers increases the
ability of the regulator to secure compliance through less severe sanctions.
Criminal offences have been part of the VET regulatory framework for a number of
years. In October 2002 the Ministerial Council agreed Model Clauses for Training
National Registration and Accreditation. These model clauses include offences found
in Part 6 of the NVR Bill including: falsely claiming to be an RTO; falsely issuing, or
claiming to be able to issue a qualification; falsely claiming to be able to provide
training or assessments resulting in the issue of a qualification or statement of
attainment; and falsely claiming to be able to offer training resulting in the issuing of
a qualification or statement of attainment by another person knowing that the other
person is not lawfully able to issue the qualification or statement of attainment.
The Education Services for Overseas Students Act 2000 deals with similar behaviour
and the same sector (see ss. 8, 108, 110). That Act also contains a criminal sanction
for interfering in the operations of the regulator when exercising monitoring and
search warrant powers (ss. 120, 121, 135 136).'
After the explanation in relation to clause 113 - Geographical jurisdiction, add:
`Offshore delivery of Australian VET qualifications is a growing area of activity for
Australian VET providers. There is growth in numbers of offshore students who are
undertaking these Australian qualifications along with corresponding growth in the
numbers of public and private providers engaged in offshore delivery. One hundred
and five private providers (approximately 2% of all registered Australian private
providers) and thirty seven public providers (61% of all Australian TAFE institutes)
were involved in the delivery of VET offshore in 2009.
There are considerable financial and reputational risks to individuals, providers and
the Australian VET system as a whole with offshore delivery of AQF qualifications
by Australian RTOs and by overseas providers. The NQC report Offshore Quality
Assurance Monitoring against the AQTF, Dec 2009, found:
Fundamental to the quality of the system is that Australian Industry can have
confidence that training offshore is equivalent to that provided onshore and not
a lesser qualification. Graduates of Australian qualifications gained through
offshore training should be equally prepared to graduates and workers
onshore.
It is therefore necessary to allow for the geographical jurisdiction to be extended to
allow for confidence in Australian qualifications provided offshore by Australian
RTOs and to deter overseas providers from falsely claiming to be registered in
Australia and adversely affecting the reputation of AQF qualifications and Australian
registration.
There are several mechanisms available to Australian law enforcement officers to
carry out law enforcement action and obtain information and evidence from offshore
providers in foreign countries for the purposes of criminal investigations and
prosecutions. These mechanisms include mutual assistance (formal government to
government assistance), police-to-police assistance and agency-to-agency assistance
processes.'
After the explanation in relation to clause 132 - Geographical jurisdiction, add:
`See also the explanation in relation to clause 113 above.'
After the explanation in relation to clause 148 - Infringement notices in respect
of offences, add:
`The infringement notice scheme will consist of regulations drafted by the Office of
Legislative Drafting and Publishing. As a Commonwealth instrument the
infringement notice scheme will have regard to the safeguards as set out in A guide to
framing Commonwealth offences, civil penalties and enforcement powers, including
that the issuing officer must have reasonable grounds to believe that the offence has
been committed before issuing the notice and that the notice contain appropriate
contents such identifying the alleged offence. Infringement notices will be
appropriately applied to the offences and civil penalties in the Bill based on
consideration of the Guide.'
After the explanation in relation to clause 149 - Infringement notices in respect
of civil penalties, add:
`See also the explanation in relation to clause 148 above.'
(Circulated by authority of the Minister for Tertiary Education, Skills, Jobs and
Workplace Relations, Senator the Honourable Chris Evans)
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