Campus Review Vol 29. Issue 6 June 2019 | Seite 25

campusreview.com.au
The national higher education (HE) regulator Tertiary Education
Quality and Standards Agency (TEQSA) was established in 2011. This
was enacted unilaterally under discreet Commonwealth legislation
covering education accreditation and quality control. In establishing
TEQSA the Commonwealth imposed its constitutional powers in
deeming the purpose and operation of universities to be ‘trading
corporations’. Supported by the Commonwealth’s overwhelming
funding/financing, this regulatory reform was in effect a unilateral
‘takeover’ by the Commonwealth and not a ‘referral of power’. While
debated, this approach has been accepted, as it is underpinned by
High Court decisions on the expanded reach of the Constitution’s
corporations powers.
This view holds for higher education at least, that under its
corporations powers, the Commonwealth can now ‘mandate
rather than buy’ compliance. Other than research grants supporting
students, there is somewhat greater uncertainty with regards to
the funding of general university research. This has only an implicit
‘nationhood’ element and arguably not an explicit constitutional
basis. Lastly, Education Services for Overseas Students falls squarely
into Commonwealth control. Given the above, the recent undetailed
proposal to reverse domestic arrangements to revert universities to
full state control is perplexing.
VET SECTOR
VET is an area where the Commonwealth lacks any explicit
constitutional authority to impose its governance nationally. It could
seek to regulate only partially (such as for corporations, or in the
territories) but this is impractical, so it cooperates with states. Present
‘federated cooperation’ arrangements are detailed in the recent
national VET-sector review.
Historically, a ‘leaked’ draft COAG paper in 2016 set out the
framework for a Commonwealth takeover of VET, but it was soon
dropped. Recently the Australian Council for Private Education and
Training (ACPET), the peak body representing private RTO interests,
boldly advocated without any detail for a Commonwealth takeover
of the VET sector within one tertiary education system.
Such a ‘takeover’ (by whatever mechanism) was contemplated
and rejected by Joyce. In the ‘referral of power’ that led to the
establishment of the Australian Skills Quality Authority (ASQA),
other non-regulatory VET functions were specifically ‘carved out’
to remain within states’ control. This included control of apprentice
training and its related policy and administration, VET training in
general and the operation of state TAFE systems.
This is how matters now stand.
VET SECTOR REGULATORY GOVERNANCE
A referral of constitutional power by a majority of states allowed the
Commonwealth to legislate for a national VET regulator, ASQA, in
2011, including powers and standards to regulate training providers
and training products. Prior to this, states had their own legislation
for VET regulation with its inherent functions and costs. The ‘referral
of power’ was led in this instance via the NSW Parliament and
adopted by most states except Victoria and Western Australia, which
agreed to cooperate on their terms and ‘mirror’ the Commonwealth
legislation. This has led to some operational complexity and
compromise, and the Joyce Review firmly proposes that these states
reconsider their position.
An unintended complexity of this referral is that states also
rightfully impose specific quality conditions within their contracts
VET & TAFE
for procurement of training services. This is not regulation per se,
but seen by RTOs as ‘another higher level and burden’ of regulation.
This too the Joyce Review proposes to ‘iron out’ to become uniform
across all states.
VET SECTOR FUNDING AND TRAINING
As noted above, the governance of most VET functions and
activities were ‘carved out’. This means that, other than regulation
and specific initiatives like the Student Identifiers Act, the (domestic)
operation of the national VET sector is governed by eight different
state and territory VET-specific Acts and their underlying policies,
including apprentices.
Present arrangements for federated cooperation in VET are thus
founded on “executive cooperation by way of intergovernmental
agreements”. The National Agreement for Skills and Workforce
Development (NASWD) 2009 cast under the Intergovernmental
Agreement on Federal Financial Relations defines roles and separate/
shared responsibilities for governments and also Commonwealth
funding. There are other (Commonwealth/state) national
partnerships (NP), such as the present NP Skilling Australians Fund.
Agreements and partnerships are just that, their terms are not
enforceable, nor actionable in the style of a commercial contract.
The NASWD had no ongoing ‘maintenance of proportional funding
effort’ obligations on states. Over time the unenforceable terms
and other impinging national policies (e.g. ‘demand-driven funding’
in universities) created fertile opportunity for cost-shifting between
governments, undermining VET’s outputs.
This is evident in a steady trend decline in government-funded
VET, confirmed by the Productivity Commission in its Report on
Government Services that shows graphically that NASWD targets
are not even close to being on track. There has also been a steady
decrease in revenues from governments in both VET funding
subsidies and loans since about 2012 (with modest increases in 2017
in some states).
Hence the most fundamental proposition of all in the Joyce
Review is that governments go back to ground level and renegotiate
a national agreement (and partnership) to include agreed fixed
future proportional resource effort as well as nationally uniform
course pricing.
VET SECTOR AND APPRENTICES
Apprenticeships are the most recognised flagship of the VET
system, but their numbers have declined (especially in traineeships,
less so in trades). Apprenticeships illustrate best the long history
and complexity of national federated arrangements in VET. This
complexity is bound up in legality, custom and tradition. There are
positive but inefficient federated cooperative relations across all
governments, network brokers and employers linked by deeply
intertwined funding. The Joyce Review notes the system declines
and inefficiencies which have drawn further budget response to
address efficiencies and incentives.
Apprenticeships have two tightly interwoven functional
domains, one employment related being legislation, policies
and implementation, which sit dominantly with Commonwealth
governance (e.g. the Fair Work Ombudsman’s survey that found
significant non-compliance with workplace laws for apprentices).
The other domain is training related. Apprenticeships were the
subject of a specific ‘carve out’ in the referral of power that led to the
establishment of ASQA. So legislation, policies and implementation
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