Commonwealth of Australia Explanatory Memoranda

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HIGHER EDUCATION SUPPORT AMENDMENT (VET FEE-HELP AND TERTIARY ADMISSION CENTRES) BILL 2009

                                 2008 - 2009




               THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA








                          HOUSE OF REPRESENTATIVES








   HIGHER EDUCATION SUPPORT AMENDMENT (VET FEE-HELP AND TERTIARY ADMISSION
                             CENTRES) BILL 2009







                              CORRECTION TO THE
                           EXPLANATORY MEMORANDUM










           (Circulated by authority of the Minister for Education,
                      the Honourable Julia Gillard MP)


SCHEDULE 2 - ITEM 9

At the end of the item - insert the following to explain the extended use
of absolute liability:

"This amendment extends the offence under section 179-35 of the Act to
include personal information held on a computer of a Tertiary Admission
Centre or on behalf of a Tertiary Admission Centre. This includes extending
absolute liability to new subparagraphs 179-35(1)(d)(v) and (vi), that is,
the element of the offence that the personal information is held in a
computer of a Tertiary Admission Centre or on behalf of a Tertiary
Admission Centre.

The purpose of attaching absolute liability to this element of the offence
is to prevent a person from being able to escape liability for the offence
by claiming that they were unaware the personal information they were
accessing or modifying was held in a computer of a Tertiary Admission
Centre or on behalf of a Tertiary Admission Centre, despite the existence
of all of the other elements of the offence.

Although absolute liability removes the requirement to establish fault with
regards to one element of the offence, it will still be necessary to prove
fault in the other elements of the offence. An offence under section 179-35
can only arise where the person intends to cause access to, or modification
of, personal information and the person knows that the access or
modification is unauthorised.

Attaching absolute liability to this element of the offence is consistent
with other provisions contained in the Act concerning unauthorised access
to, or modification of, VET personal information being held by VET
providers and with personal information being held by higher education
providers and Open Universities Australia."


SCHEDULE 2 - ITEM 15

At the end of the item - insert the following to explain the extended use
of absolute liability:

"This amendment extends the offence under clause 78 of Schedule 1A of the
Act to include VET personal information held on a computer of a Tertiary
Admission Centre or on behalf of a Tertiary Admission Centre. This includes
extending absolute liability to new subparagraphs 78(1)(d)(iii) and (iv),
that is, the element of the offence that the VET information is held in a
computer of a Tertiary Admission Centre or on behalf of a Tertiary
Admission Centre.

The purpose of attaching absolute liability to this element of the offence
is to prevent a person from being able to escape liability for the offence
by claiming that they were unaware the VET personal information they were
accessing or modifying was held in a computer of a Tertiary Admission
Centre or on behalf of a Tertiary Admission Centre, despite the existence
of all of the other elements of the offence.

Although absolute liability removes the requirement to establish fault with
regards to one element of the offence, it will still be necessary to prove
fault in the other elements of the offence. An offence under clause 78 can
only arise where the person intends to cause access to, or modification of,
VET personal information and the person knows that the access or
modification is unauthorised.

Attaching absolute liability to this element of the offence is consistent
with other provisions contained in the Act concerning unauthorised access
to, or modification of, VET personal information being held by VET
providers and with personal information being held by higher education
providers and Open Universities Australia."