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2019
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
STUDENT IDENTIFIERS AMENDMENT (HIGHER
EDUCATION) BILL 2019
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Education,
the Honourable Dan Tehan MP)
STUDENT IDENTIFIERS AMENDMENT (HIGHER
EDUCATION) BILL 2019
OUTLINE
The purpose of the Student Identifiers Amendment (Higher Education) Bill 2019
(the Bill) is to amend the Student Identifiers Act 2014 (the Act) to enable the
extension of the unique student identifier from vocational education and training
(VET) to higher education students, and to enable the Student Identifiers Registrar
(the Registrar) to assign a student identifier to all higher education students.
The Bill will amend current requirements under the Act to include the higher
education sector. Specifically, the Bill will enable the assignment, collection, use,
disclosure and verification of student identifiers for higher education students. The
Registrar, appointed under Part 4 of the Act, has powers and functions that will
expand to include the operation of the student identifier in the higher education
sector.
Starting in 2021, new domestic and onshore overseas higher education students
can apply for a student identifier. From 1 January 2023, registered higher education
providers must not confer a regulated higher education award on an individual
unless the individual has been assigned a student identifier or an exemption
applies.
Part 1 of Schedule 1 to the Bill includes the main amendments that:
extend the entities that may apply to the Registrar for a student identifier if
authorised by the individual, and the entities that can request the Registrar to
verify or give a student identifier to the entity;
extend the Registrar's authorisation to use or disclose a student identifier for
research purposes relating to the provision of higher education, and where
the research meets the requirements specified by the Education Minister (as
defined in the Bill) through a legislative instrument;
extend Part 2, Division 5 of the Act to authorise specified entities and
persons to collect, use or disclose student identifiers for the purposes of the
Higher Education Support Act 2003, the Tertiary Education Quality and
Standards Agency Act 2011 and the Education Services for Overseas
Students Act 2000;
include a power for the Education Minister to give directions to the Registrar,
by legislative instrument, about the performance of the Registrar's functions
in relation to higher education;
extend section 45 of the Act to allow for the Secretary of the Education
Department (as defined in the Bill) to alrso make staff available to assist the
Registrar;
require that a registered higher education provider must not confer a
regulated higher education award on an individual on or after 1 January 2023
unless the individual has been assigned a student identifier or an exemption
applies;
include a provision that allows the Education Minister to recommend that the
Governor-General make regulations with respect to matters relating to higher
education.
2
Part 2 of Schedule 1 to the Bill includes minor contingent amendments to the Act
which are subject to the commencement of the Education Legislation Amendment
(Tuition Protection and Other Measures) Act 2019 and the Student Identifiers
Amendment (Enhanced Student Permissions) Act 2019.
3
FINANCIAL IMPACT STATEMENT
The Bill implements the Government's higher education measure from the 2019-20
Federal Budget. The expansion of the student identifier to higher education will cost
$15.5 million over four years from 2019-20 to 2022-23. This will include $12.7
million over four years to the Department of Employment, Skills, Small and Family
Business and the Office of the Student Identifiers Registrar for information
technology (IT) system development, IT maintenance and cloud hosting, website
development, telephony, and stakeholder engagement. The remaining $2.9 million
over three years from 2019-20 to 2021-22 will fund departmental costs including a
Privacy Impact Assessment, IT enhancements, and stakeholder engagement.
2019-20 2020-21 2021-22 2022-23 Total
Department of $1,540,028 $3,466,410 $4,265,846 $3,379,207 $12,651,491
Employment,
Skills, Small
and Family
Business
Department of $418,453 $2,015,219 $436,905 $2,870,577
Education
Total $1,958,481 $5,481,629 $4,702,751 $3,379,207 $15,522,068
Note: Costs in the above table do not include efficiency dividend or indexation
adjustments.
4
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011
STUDENT IDENTIFIERS AMENDMENT (HIGHER EDUCATION) BILL
2019
The Student Identifiers Amendment (Higher Education) Bill 2019 (the Bill) is
compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of the Bill
The purpose of the Bill is to amend the Student Identifiers Act 2014 (the Act) to
enable the extension of the unique student identifier from vocational education and
training (VET) to higher education students, and to enable the Student Identifiers
Registrar (the Registrar) to assign a student identifier to all higher education
students.
The Bill will amend current requirements under the Act to include the higher
education sector. Specifically, the Bill will enable the assignment, collection, use,
disclosure and verification of student identifiers for higher education students. The
Registrar, appointed under Part 4 of the Act, has powers and functions that will
expand to include the operation of the student identifier in the higher education
sector.
Starting in 2021, new domestic and onshore overseas higher education students
can apply for a student identifier. From 1 January 2023, registered higher education
providers must not confer a regulated higher education award on an individual
unless the individual has been assigned a student identifier or an exemption
applies.
Part 1 of Schedule 1 to the Bill includes the main amendments that:
extend the entities that may apply to the Registrar for a student identifier if
authorised by the individual and the entities that can request the Registrar to
verify or give a student identifier to the entity;
extend the Registrar's authorisation to use or disclose a student identifier for
research purposes relating to the provision of higher education, and where
the research meets the requirements specified by the Education Minister (as
defined in the Bill) through a legislative instrument;
extend Part 2, Division 5 of the Act to authorise specified entities and
persons to collect, use or disclose student identifiers for the purposes of the
Higher Education Support Act 2003 (HESA), the Tertiary Education Quality
and Standards Agency Act 2011 (TEQSA Act) and the Education Services
for Overseas Students Act 2000 (ESOS Act);
include a power for the Education Minister to give directions to the Registrar,
by legislative instrument, about the performance of the Registrar's functions
in relation to higher education;
5
extend section 45 of the Act to allow for the Secretary of the Education
Department (as defined in the Bill) to also make staff available to assist the
Registrar;
require that a registered higher education provider must not confer a
regulated higher education award on an individual on or after 1 January 2023
unless the individual has been assigned a student identifier or an exemption
applies;
include a provision that allows the Education Minister to recommend that the
Governor-General make regulations with respect to matters relating to higher
education.
Part 2 of Schedule 1 to the Bill includes minor contingent amendments to the Act
which are subject to the commencement of the Education Legislation Amendment
(Tuition Protection and Other Measures) Act 2019 and the Student Identifiers
Amendment (Enhanced Student Permissions) Act 2019.
Analysis of human rights implications
This Bill engages the following rights:
the right to privacy and reputation - Article 17 of the International Covenant
on Civil and Political Rights (ICCPR);
the right to education - Article 13 of the International Covenant on Economic,
Social and Cultural Rights (ICESCR); and
the right to work - Article 6 of the ICESCR
Article 17: Right to privacy and reputation
The Bill engages with Articles 17(1) and 17(2) of the ICCPR, which state that "no
one shall be subject to arbitrary or unlawful interference with his privacy ... nor to
unlawful attacks on his honour and reputation" and that "everyone has the right to
the protection of the law against such interference or attacks".
The right to privacy incorporates the right to informational privacy, including with
respect to storing, using and sharing personal information. To be permissible as a
matter of international human rights law, interference with privacy must be
according to law and not arbitrary. In order not to be arbitrary, the interference must
be reasonable and necessary in the particular circumstances, as well as
proportionate to the legitimate objectives they seek to achieve.
Part 2, Divisions 5 and 6 of the Act already includes a number of safeguards around
the collection, use and disclosure of student identifiers, to ensure that the privacy of
individuals is protected. The Bill seeks to add further safeguards to reflect the
expansion of the student identifier into the higher education sector.
The Bill authorises specified entities and persons to collect, use or disclose a
student identifier for the purposes of higher education or higher education relating
to overseas students studying in Australia. The amendments also extend the
number of authorised higher education related entities that the Registrar can
disclose a student identifier to under the Act. The Bill also provides for the
disclosure of a student identifier where the use or disclosure is for the purpose of
research relating to the provision of higher education.
6
The amendments allow for the effective administration of HESA, the TEQSA Act
and the ESOS Act, including the functions of the Commissioner of Taxation (i.e.
Australian Taxation Office) in managing student debt for the purposes of HESA. An
entity authorised under the Act can only use an individual's student identifier to
achieve these legitimate objectives.
The Bill provides significant safeguards to protect against arbitrary interferences
with privacy. The Bill does not displace the protections provided for personal
information under the Privacy Act 1988 (Privacy Act) or equivalent State and
Territory legislation. Therefore, any entity or person that collects, uses or discloses
a student identifier will also have to comply with the requirements of relevant
privacy legislation. Further, the Act currently provides that the Registrar and any
other entity that has a record of student identifiers, must protect those records from
misuse or unauthorised access. The Bill also clarifies that any entity authorised to
make an application for a student identifier on behalf of an individual must destroy
the personal information collected solely for that purpose as soon as practicable
after the application is made or it is no longer needed for that purpose. Any
contravention of these requirements is taken to be an interference with privacy
under the Privacy Act that can be investigated by the Australian Information
Commissioner.
The Australian Government Department of Education is also conducting a Privacy
Impact Assessment in relation to this proposal to assist with managing, minimising
or eliminating any identified privacy impact that the proposal may have on
individuals.
The Bill also requires the Education Minister to make a legislative instrument
specifying the requirements that the Registrar must consider before using or
disclosing a student identifier for research purposes relating to the provision of
higher education. This ensures that appropriate limits are placed around the
Registrar's power under new subsection 18(3) (refer to item 12), as the Registrar
cannot use or disclose a student identifier for research purposes relating to higher
education until such a legislative instrument comes into force. The Education
Minister will set out robust requirements in the legislative instrument that will ensure
appropriate safeguards are in place to protect an individual's student identifier and
personal information.
In making the legislative instrument, the Education Minister will take into account
community expectations surrounding privacy, and will also consider relevant
requirements applicable to the use of student identifiers for research in the VET
sector and whether they are applicable for higher education. For example, the
Education Minister may consider including the following factors in the legislative
instrument that the Registrar should take into account:
the purpose for which the information was collected;
the stated purpose for the use or disclosure;
the scope of the use or disclosure (e.g. duration of research, data
parameters, target population, estimated period of data retention);
weighing the public interest or benefit of the use or disclosure against data
protection considerations; and
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whether the individuals to whom personal information relates consented to
the proposed disclosure and use of the information and if not, whether it is
impracticable to seek consent from the individuals.
The proposed use of an individual's student identifier is for the purposes of meeting
the objectives of the Act and supporting the administration of higher education in a
way which is reasonably necessary to meet policy objectives. To the extent the Bill
limits the right to privacy, these limitiations are justifiable as they are reasonable,
necessary and proportionate to achieving the legitimate objectives of the Act, and
appropriate safeguards are included in the Bill to protect an individual's privacy.
The Bill is compatible with the right to privacy and reputation.
Article 13: Right to education
The Bill engages the right to education contained in Article 13 of the ICESCR.
In particular, Article 13 states
(b) Secondary education in its different forms, including technical and
vocational secondary education, shall be made generally available and
accessible to all by every appropriate means, and in particular by the
progressive introduction of free education;
(c) Higher education shall be made equally accessible to all, on the basis of
capacity, by every appropriate means, and in particular by the progressive
introduction of free education.
There are currently two Government-issued student identifiers in the tertiary
education sector: i.e. the student identifier in the VET sector assigned under the Act
and the Commonwealth Higher Education Student Support Number (CHESSN) in
the higher education sector. The Government intends to provide a single student
identifier that will record a student's entire tertiary education journey by de-
commissioning the CHESSN and expanding the student identifier to higher
education. The expansion of the student identifier will also help policy makers gain
a better understanding of student pathways across tertiary education by
strengthening the integrity and richness of data available to Government. A more
robust evidence base will help inform future policy development and program
delivery, and in doing so, further improve the effectiveness and efficiency of the
Government's investment in tertiary education.
The Bill may limit the right to education by requiring, on or after 1 January 2023,
that all domestic and onshore overseas students have a student identifier before
the student can obtain a regulated higher education award (i.e. their qualification).
However, there are limited barriers impeding a student from obtaining a student
identifier and, in turn, gaining their qualification, as the process for applying for a
student identifier is simple, and there is no associated cost for applicants. Existing
students will also have ample time between the commencement of the Bill and 1
January 2023 to ensure that they have applied for, and obtained, a student
identifier. Further, when necessary, higher education providers, Tertiary Admission
Centres and the Australian Government Department of Education may also assist a
8
student by applying for a student identifier on behalf of the student (with consent
from the student).
To the extent the Bill limits the right to education, these limits are justifiable as they
are reasonable, necessary and proportionate to achieving the legitimate objectives
of the Act.
The Bill is compatible with the right to education.
Article 6: Right to work
The Bill supports Article 6 of the ICESCR. Article 6(1) recognises "the right of
everyone to the opportunity to gain his living by work" and that the State "will take
appropriate steps to safeguard this right". Article 6(2) states: "to achieve the full
realisation of this right shall include technical and vocational guidance and training
programmes, policies and techniques to achieve steady economic, social and
cultural development and full and productive employment under conditions
safeguarding fundamental political and economic freedoms to the individual."
Labour market demands are evolving so that it is increasingly important to have a
tertiary education qualification in order to obtain work. As the Bill supports the right
to education, which includes the right of students studying in Australia to obtain a
tertiary education qualification, the Bill also supports the right to work.
The Bill is compatible with the right to work.
Conclusion
The Bill is compatible with human rights because it advances the protection
of human rights in the delivery of higher education in Australia. To the extent that it
may limit human rights, these limitations are reasonable, necessary and
proportionate.
9
STUDENT IDENTIFIERS AMENDMENT (HIGHER
EDUCATION) BILL 2019
NOTES ON CLAUSES
Clause 1 - Short title
This clause provides for the Act to be the Student Identifiers Amendment (Higher
Education) Act 2019.
Clause 2 - Commencement
The table in subclause 2(1) sets out when the Act's provisions will commence. The
table provides that:
Sections 1 to 3, and anything in the Act not elsewhere covered by the table
at subclause 2(1), commences the day the Act receives the Royal Assent.
Schedule 1, Part 1 commences the day after the Act receives the Royal
Assent.
Schedule 1, Part 2, Division 1 provides for amendments to the Act following
the commencement of the Education Legislation Amendment (Tuition
Protection and Other Measures) Act 2019 (Tuition Protection Act). Schedule
1, Part 2, Division 1 will commence either immediately after the day the Act
receives the Royal Assent or immediately after the commencement of
Schedule 1 to the Tuition Protection Act (whichever happens later).
However, Schedule 1, Part 2, Division 1 will not commence at all if Schedule
1 to the Tuition Protection Act does not commence.
Schedule 1, Part 2, Division 2 provides for amendments to the Act following
the commencement of the Student Identifiers Amendment (Enhanced
Student Permissions) Act 2019 (Student Permissions Act). Schedule 1, Part
2, Division 2 will commence either immediately after the day the Act receives
the Royal Assent or immediately after the commencement of the Student
Permissions Act. However, Schedule 1, Part 2, Division 2 will not commence
at all if the Student Permissions Act does not commence.
Subclause 2(2) provides that information in column 3 of the table at subclause 2(1)
is not part of the Act, and that information may be inserted into column 3, or
information in it may be edited, in any published version of the Act.
Clause 3 - Schedules
This clause provides that any legislation that is specified in a schedule is amended
or repealed as set out in the applicable items in the schedule and that any other
item in a schedule has effect according to its terms.
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LIST OF ABBREVIATIONS
Education Department Australian Government Department of Education
Education Minister Minister for Education
ESOS Act Education Services for Overseas Students 2000
HESA Higher Education Support Act 2003
TEQSA Tertiary Education Quality and Standards Agency
TEQSA Act Tertiary Education Quality and Standards Agency Act
2011
the Act Student Identifiers Act 2014
TPS Tuition Protection Service
VET vocational education and training
11
Schedule 1 Amendments
Summary
The purpose of the Student Identifiers Amendment (Higher Education) Bill 2019
(the Bill) is to amend the Student Identifiers Act 2014 (the Act) to enable the
extension of the student identifier from vocational education and training (VET) to
higher education students, and to enable the Student Identifiers Registrar (the
Registrar) to assign a student identifier to all higher education students.
The Bill will amend current requirements under the Act to include the higher
education sector. Specifically, the Bill will enable the assignment, collection, use,
disclosure and verification of student identifiers for higher education students. The
Registrar, appointed under Part 4 of the Act, has powers and functions that will
expand to include the operation of the student identifier in the higher education
sector.
Starting in 2021, new domestic and onshore overseas higher education students
can apply for a student identifier. From 1 January 2023, registered higher education
providers must not confer a regulated higher education award on an individual
unless the individual has been assigned a student identifier or an exemption
applies.
Part 1 of Schedule 1 to the Bill includes the main amendments to the Act. Part 2 of
Schedule 1 to the Bill includes minor contingent amendments to the Act.
Detailed explanation
Part 1 - Main amendments
Student Identifiers Act 2014 (the Act)
Item 1 - Title
Item 1 amends the title of the Act to reflect the extension of the Act to higher
education.
Items 2, 3 and 5 - Sections 3 and 8
Item 2 amends the simplified outline of the Act at section 3 to reflect that a
registered higher education provider must not confer a regulated higher education
award on an individual after 2022 unless the individual has been assigned a student
identifier.
Items 3 and 5 amend the simplified outlines at sections 3 and 8 of the Act to clarify
that an individual, organisation, body or person involved with VET or higher
12
education may request that the Registrar verify that an identifier is the individual's
student identifier, or give the individual's student identifier.
Item 4 - Subsection 4(1)
Item 4 inserts new definitions in section 4 of the Act associated with the extension
of the Act to the higher education sector.
This includes a new definition of 'Education Department' which means the
Department administered by the 'Education Minister'. 'Education Minister' means
the Minister who administers the TEQSA Act. Currently, the Australian Government
Department of Education is the relevant department.
Item 6 - After paragraph 9(2)(b)
Item 6 inserts paragraphs 9(2)(ba) and 9(2)(bb) after paragraph 9(2)(b) of the Act to
provide that a registered higher education provider and a Tertiary Admission Centre
may apply to the Registrar for a student identifier to be assigned to an individual if
authorised by the individual to make an application under section 9 of the Act.
'Registered higher education provider' and 'Tertiary Admission Centre' have the
same meaning as in the TEQSA Act (new definitions inserted by item 4).
Items 7, 8 and 9 - Section 11
Items 7 to 9 amend section 11 of the Act to ensure that any 'entity' that is
authorised by an individual to make an application under section 9 (which would
include a registered training organisation, VET admission body, registered higher
education provider or Tertiary Admission Centre) is required to destroy personal
information collected for the purposes of making an application, in accordance with
section 11 of the Act.
Item 10 - After paragraph 12(2)(b)
Item 10 inserts new paragraph 12(2)(ba) after paragraph 12(2)(b) of the Act to
provide that the Registrar must give written notice of the Registrar's decision under
subsection 12(1) of the Act to the Secretary of, or an APS employee in, the
Education Department.
Item 11 - At the end of subsection 14(1)
Item 11 inserts new paragraphs (e) to (q) at the end of subsection 14(1) of the Act.
This amendment allows any of the entities or persons listed at paragraphs (e) to (q)
to make a request to the Registrar to verify that an identifier is the student identifier
of an individual, or to give the entity or person the student identifier of an indivudal.
For example, a registered higher education provider or Tertiary Admission Centre
may need to verify or obtain the student identifier of an individual for the purposes
of supporting student enrolment, graduation and student administration functions.
The Secretary of the Education Department, an APS employee in the Education
Department or a person who performs services for or on behalf of the
13
Commonwealth for the purposes of HESA may need to verify or obtain the student
identifier of an individual for the purposes of administering HESA. For example, the
Education Department may need to verify or obtain an individual's student identifier
to support student enquiries regarding Commonwealth assistance under HESA.
A TEQSA Commissioner, Chief Executive Officer of TEQSA, member of staff of
TEQSA or a person who performs services for or on behalf of the Commonwealth
for the purposes of the TEQSA Act may need to verify or obtain the identifier of an
individual for the purposes of administering the TEQSA Act. For example, TEQSA
may need to verify or obtain a student identifier for the purposes of performing their
regulatory activities across the higher education sector under the TEQSA Act.
The TPS Director, an ESOS agency for a provider or registered provider, a TPS
officer or an authorised officer of the ESOS agency for a registered provider may
need to verify or obtain the student identifier of an individual for the purposes of
administering the ESOS Act (which relates to overseas students studying in
Australia). These entities are defined in the ESOS Act (new definitions inserted by
item 4). For example, an ESOS agency may need to verify or obtain a student
identifier for the purposes of supporting an onshore overseas student who is
enrolling at an Australian higher education provider to ensure a seamless induction
process.
Item 12 - At the end of section 18
Item 12 amends section 18 to add new subsections 18(3) and 18(4).
Subsection 18(2) of the Act deals with the Registrar's power to use or disclose a
student identifier of an individual for the purposes of research that relates (directly
or indirectly) to education or training or that requires the use of student identifiers or
information about education or training and meets the requirements specified by the
Ministerial Council. The Ministerial Council has specified requirements through the
National VET Data Policy. The Ministerial Council is defined in section 4 of the Act
as either 'a body established by the Council of Australian Governments to deal with
training and skills' or 'otherwise - a body prescribed by the regulations'. The
Ministerial Council does not deal with higher education matters, therefore the
National VET Data Policy is not relevant to the use and disclosure of identifiers that
relate to the provision of higher education.
New subsection 18(3) authorises the Registrar to use or disclose a student identifier
of an individual if the use or disclosure is for the purposes of research that a)
relates (directly or indirectly) to the provision of higher education and b) meets the
requirements specified in a legislative instrument made by the Education Minister
under new subsection 18(4).
Under new subsection 18(4), the Education Minister must by legislative instrument,
specify requirements for the purposes of new paragraph 18(3)(b). This instrument is
a legislative instrument for the purposes of the Legislation Act 2003 and is subject
to the Parliamentary disallowance process.The disallowance process provides
Parliamentary oversight and scrutiny over any legislative instrument made by the
Education Minister.
14
The legislative instrument will provide appropriate safeguards and parameters
around the Registrar's use and disclosure of student identifiers for higher education
research purposes. For example, the Education Minister may specify the factors the
Registrar should take into account in assessing whether it is appropriate to disclose
student identifiers to particular persons for research purposes. In making the
instrument, the Education Minister will take into account community expectations
surrounding privacy, and will also consider relevant requirements in the National
VET Data Policy and whether they are applicable for higher education. For
example, the Education Minister may consider including the following factors in the
legislative instrument that the Registrar must take into account when considering
requests under new subsection 18(3):
the purpose for which the information was collected;
the stated purpose for the use or disclosure;
the scope of the use or disclosure (e.g. duration of research, data
parameters, target population, estimated period of data retention);
weighing the public interest or benefit of the use or disclosure against data
protection considerations; and
whether the individuals to whom personal information relates consented to
the proposed disclosure and use of the information and if not, whether it is
impracticable to seek consent from the individuals.
It is expected that the Education Minister will consult the Minister responsible for
administering the Act in making any instrument under new subsection 18(4).
The Registrar cannot use or disclose identifiers under new subsection 18(3) unless
the Education Minister has made a legislative instrument under new subsection
18(4). The legislative instrument will provide safeguards for students to ensure the
use and disclosure of their student identifiers for research purposes does not
unnecessarily or unreasonably limit their right to privacy.
Item 13 - After section 18A
Item 13 inserts new sections 18B and 18C after section 18A of the Act. New section
18B authorises the collection, use or disclosure of a student identifier for the
purposes of higher education. New section 18C authorises the collection, use or
disclosure of a student identifier for the purposes of higher education relating to
overseas students studying in Australia.
HESA
New subsection 18B(1) authorises persons listed at new subsection 18B(2) to
collect, use or disclose a student identifier of an individual if the collection, use or
disclosure is reasonably necessary for the purposes of performing functions or
exercising powers in relation to HESA or any instrument made under HESA.
The Commonwealth Higher Education Student Support Number (CHESSN) is
currently used as a personal identification number for students accessing
Commonwealth assistance under HESA. The CHESSN will be decommissioned
and gradually replaced by student identifiers assigned under the Act. As the student
identifier will be used to administer a person's Commonwealth assistance under
HESA (like the CHESSN) there may be a need for the persons listed at new
15
subsection 18B(2) to collect, use or disclose the student identifier for HESA
purposes. This includes the Secretary of the Education Department, an APS
employee in the Education Department, a person who performs services for or on
behalf of the Commonwealth in connection with the performance of functions or the
exercise of powers under HESA, and the Commissioner of Taxation.
TEQSA Act
New subsection 18B(3) authorises persons listed at new subsection 18B(4) to
collect, use or disclose a student identifier of an individual if the collection, use or
disclosure is reasonably necessary for the purposes of performing functions or
exercising powers in relation to the TEQSA Act or any instrument made under that
Act. This includes a TEQSA Commissioner, the Chief Executive Officer of TEQSA,
a member of the staff of TEQSA or a person who performs services for or on behalf
of the Commonwealth in connection with the performance of functions, or the
exercise of powers under the TEQSA Act. For example, TEQSA may collect, use or
disclose a student identifier for the purposes of performing their regulatory activities
across the higher education sector under the TEQSA Act.
In addition, new subsection 18B(5) provides that a registered higher education
provider is also authorised to collect, use or disclose a student identifier if the
collection, use or disclosure is reasonably necessary in connection with the
operation of HESA or the TEQSA Act and any instrument made under those Acts.
For example, a registered higher education provider may need to provide the
student identifier of an individual to the Education Department where a student has
made an application for Commonwealth assistance under HESA.
ESOS Act
New subsection 18C(1) authorises the entities and persons listed at new subsection
18C(2) to collect, use or disclose a student identifier of an individual if the collection,
use or disclosure is reasonably necessary for the purposes of performing functions
or exercising powers in relation to the ESOS Act or any instrument made under that
Act. This includes the Secretary of the Department administered by the Minister
administering the ESOS Act, the TPS Director, a TPS officer, an ESOS agency or
an authorised officer of the ESOS agency for a registered provider. These terms
are defined in the ESOS Act.
The ESOS Act establishes legislative requirements and standards for the quality
assurance of education and training institutions offering courses to overseas
students who are in Australia on a student visa, and also provides tuition fee
protection for these students. Currently, overseas students studying in Australia
with an Australian registered training organisation in the VET sector are already
required to have a student identifier under the Act. The Bill will extend the
requirement to overseas students studying in Australia in the higher education
sector (e.g. universities) to also have a student identifier. Therefore, all overseas
students studying in Australia in the tertiary education sector (i.e. the VET and
higher education sector) will be required to have a student identifier under the Act.
The entities listed at new subsection 18C(2) may be required to collect, use or
disclose a student identifier of an individual for the purposes of performing functions
or exercising powers in relation to the ESOS Act. For example, these entities may
need to collect, use or disclose a student identifier to assist with monitoring and
16
compliance activities, or the validation of records and transcipts in the event of the
closure of a registered provider under the ESOS Act.
In addition, new subsection 18C(3) provides that a registered higher education
provider is authorised to collect, use or disclose a student identifier if the collection,
use or disclosure is reasonably necessary in connection with the operation of the
ESOS Act or any instrument made under that Act. For example, a registered higher
education provider may use a student identifier for the purposes of supporting an
onshore overseas student who is enrolling at an Australian higher education
provider to ensure a seamless induction process.
Item 14 - At the end of section 25
Item 14 adds new subsections 25(3) and 25(4) at the end of section 25 of the Act.
Section 25 deals with the use or disclosure of personal information authorised for
the purposes of the Privacy Act 1988. New subsection 25(3) provides that the
Registrar is authorised for the purposes of the Privacy Act 1988 to use or disclose
personal information about an individual for research purposes that relates (directly
or indirectly) to the provision of higher education and meets the requirements
specified by the Education Minister through a legislative instrument made under
new subsection 25(4).
Under new subsection 25(4), the Education Minister must by legislative instrument
specify requirements for the purposes of new paragraph 25(3)(b). This instrument is
a legislative instrument for the purposes of the Legislation Act 2003 and is subject
to the Parliamentary disallowance process. The disallowance process provides
Parliamentary oversight and scrutiny of any legislative instrument made by the
Education Minister.
Similar to the amendment at item 12, the legislative instrument will provide
appropriate safeguards and parameters around the Registrar's use and disclosure
of personal information for higher education research purposes. For example, the
Education Minister may specify the factors the Registrar should take into account in
assessing whether it is appropriate to disclose personal information to particular
persons for research purposes. In making the instrument, the Education Minister
will take into account community expectations surrounding privacy, and will also
consider relevant requirements in the National VET Data Policy and whether they
are applicable to higher education. For example, the Education Minister may
consider including the following factors in the legislative instrument that the
Registrar must take into account when considering the use or disclosure of
personal information under new subsection 25(3):
the purpose for which the information was collected;
the stated purpose for the use or disclosure;
the scope of the use or disclosure (e.g. duration of research, data
parameters, target population, estimated period of data retention);
weighing the public interest or benefit of the use or disclosure against data
protection considerations; and
whether the individuals to whom personal information relates consented to
the proposed disclosure and use of the information and if not, whether it is
impracticable to seek consent from the individuals.
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It is expected that the Education Minister will consult the Minister responsible for
administering the Act in making any instrument under this section.
The Registrar cannot use or disclose personal information under new subsection
25(3) unless the Education Minister has made a legislative instrument under new
subsection 25(4). The legislative instrument will provide safeguards for students to
ensure the use and disclosure of their personal information for research purposes
does not unnecessarily or unreasonably limit their right to privacy.
Items 15 and 16 - Section 30
Item 15 updates the simplified outline at section 30 of the Act to refer to the
amendment made through item 18, that staff from the Education Department may
also be made available to assist the Registrar.
Item 16 updates the simplified outline at section 30 of the Act to clarify that the
Registrar will also be required to report annually to the Education Minister.
Item 17 - At the end of Subdivision A of Division 2 of Part 4
Item 17 inserts new section 33A in the Act which largely mirrors existing section 33.
New subsection 33A(1) provides that the Education Minister may, by legislative
instrument, give written directions to the Registrar about the performance of the
Registrar's functions in relation to higher education. New subsection 33A(2)
provides that the Registrar must comply with a direction made by the Education
Minister under subsection 33A(1).
The note under new subsection 33A(1) clarifies that the direction is not subject to
disallowance or sunsetting under the Legislation Act 2003. The Legislation
(Exemptions and Other Matters) Regulation 2015 (Exemption Regulation) provides
that an instrument that is a direction by a Minister to any person or body is a kind of
instrument that section 42 of the Legislation Act 2003 (disallowance of legislative
instruments) does not apply to (see item 2 of the table at section 9 of the Exemption
Regulation). An instrument that is a direction by a Minister to any person or body is
also a class of instrument that is not subject to sunsetting (see item 3 of the table at
section 11 of the Exemption Regulation).
New section 33A does not include the requirement that, before giving the direction,
the Education Minister must consult the Ministerial Council (like existing subsection
33(3) of the Act). This is because the Ministerial Council does not deal with higher
education matters and therefore it is not appropriate for the Education Minister to
consult the Ministerial Council before making a direction. However, it is expected
that the Education Minister will consult the Minister responsible for administering
the Act in making any direction.
Item 18 - At the end of section 45
Item 18 adds a reference to the 'Secretary of the Education Department' at section
45 of the Act. This allows the Secretary of the Education Department to also make
staff available to assist the Registrar.
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Item 19 - Subsection 51(2)
Item 19 amends subsection 51(2) of the Act to include the requirement that the
Registrar must also give a copy of the annual report to the Education Minister.
Reference to 'Commonwealth Minister' in the Act presently refers to the Minister for
Employment, Skills, Small and Family Business as the Minister responsible for
administering the Act.
Item 20 - Section 52
Item 20 amends the simplified outline at section 52 of the Act to clarify that a
registered higher education provider must not confer a regulated higher education
award on an individual after 2022 unless the individual has been assigned a student
identifier, and to clarify that the Education Minister and the Registrar can give
exemptions to this requirement.
Item 21 - After section 53
Item 21 inserts new section 53A relating to the conferral of regulated higher
education awards. New subsection 53A(1) provides that a registered higher
education provider must not confer a regulated higher education award on an
individual unless the individual has been assigned a student identifier. A regulated
higher education award is defined in the TEQSA Act.
The application provision at item 23 of the Bill provides that this amendment applies
in relation to the conferral of a regulated higher education award on an individual on
or after 1 January 2023, whether the individual commenced the course of study
leading to the award before, on or after that day. Therefore, the requirement to have
a student identifier will only affect students being conferred a regulated higher
education award from 1 January 2023.
The purpose of this amendment is to ensure that all higher education students are
required to have a student identifier under the Act unless an exemption applies.
With the decommissioning of the CHESSN for higher education students and the
introduction of the student identifier, this amendment will assist with transitioning
students from having two identifiers to one, which will improve the administrative
process for students and providers, and encourage students to continuously
engage with their learning and contribute to the lifelong learning eco-system.
Exemptions given by Education Minister
New subsections 53A(2) and 53A(3) provide for exemptions given by the Education
Minister. The Education Minister may, by legislative instrument, specify a conferral
to which the new requirement under new subsection 53A(1) does not apply by
reference to the following classes of matters:
the registered higher education provider doing the conferring;
the regulated higher education award being conferred;
the individual on whom the regulated higher education award is being
conferred.
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It is necessary to provide for limited classes of exemptions to maintain the integrity
of the Act and ensure consistency with the existing requirements for the issuing of
VET qualifications under section 53 of the Act. The note under new subsection
53A(3) refers to subsection 13(3) of the Legislation Act 2003 which refers to
specification of legislative instruments by class.
It is preferable to provide exemptions by a legislative instrument rather than
specifiying the exemptions in the primary legislation to enable flexibility regarding
the exemptions made by the Education Minister. Further, the legislative instrument
is also subject to the Parliamentary disallowance process which provides
Parliamentary scrutiny and oversight of any exemptions made by the Minister.
These exemption provisions reflect the existing exemption provision at subsection
53(3) of the Act with the exception of the requirement to obtain the agreement of
the Ministerial Council before making an instrument (subsection 53(4)). As noted
above, the Ministerial Council does not deal with higher education matters,
therefore it would not be appropriate to consult the Ministerial Council in granting an
exemption under new subsection 53A(3). However, it is expected that the
Education Minister will consult the Minister responsible for administering the Act in
making any instrument under this section.
Exemptions given by Registrar
An individual may apply to the Registrar to make a determination that the
requirement under new subsection 53A(1) does not apply (new subsection 53A(5)).
The request by the individual must be in the manner and form approved by the
Registrar and include any information required by the Registrar (new subsection
53A(5)). If an individual makes a request, the Registrar must make, or refuse to
make the determination (new subsection 53A(6)). The determination made by the
Registrar under proposed subsection 53A(6) is not a legislative instrument (new
subsection 53A(10)).
The decision by the Registrar under new subsection 53A(6) to refuse to make a
determination to exempt an individual from the requirement under new subection
53A(1) is not subject to internal or external merits review. The Education Minister,
may by legislative instrument, determine matters (new subsection 53A(9)) that the
Registrar must have regard to when making a decision (new subsection 53A(7)).
If the Registrar makes a determination under subsection 53A(6), subsection 53A(1)
will not apply to the individual (new subsection 53A(4)). The Registrar must notify
the individual of the Registrar's decision on the request (new subsection 53A(8)). If
the Registrar refuses to make a determination, the notice must include reasons for
the refusal (new subsection 53A(8)).
If the Registrar assigns a student identifier to an individual and immediately before
this, a determination by the Registrar under subsection 53A(6) is in force, the
determination under subsection 53A(6) is taken to be revoked (new subsection
53A(11)).
New subsection 53A(12) clarifies that the matters covered by new subsections
53A(3) and 53A(9) may be included in the same instrument.
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Exclusion of merits review for decisions made by the Registrar under new
subsection 53A(6) is justifiable in order to meet the legitimate policy objectives in
the Act to ensure that all students in the VET and higher education sectors have a
single Government identifier to use throughout their tertiary education journey.
Following the decommissioning of the CHESSN, higher education students will be
required to have a student identifier. The assignment of a single student identifier to
each student in the higher education sector is essential to the effective
administration and operation of HESA. The student identifier will assist students
with obtaining Commonwealth assistance and the management of debts under
HESA.
Currently, the number of individuals seeking an exemption in the VET sector under
the Act is negligible in comparison to the number of student identifiers issued by the
Registrar each year. The inclusion of merits review would not be an efficient use of
Commonwealth resources where the cost of administering a merits review process
would be greatly disproportionate to the number of individuals requesting an
exemption. Further, external merits review at the Administrative Appeals Tribunal
may delay the outcome of the request for an individual, which may impact an
individual's ability to be conferred a higher education award.
Item 22 - After subsection 57(2)
Section 57 provides for regulations made under the Act. Item 22 inserts new
subsection 57(2A) which clarifies that subsection 57(2) of the Act (requirement to
obtain the agreement of the Ministerial Council to the making of the regulations)
does not apply in relation to the making of particular regulations if the Education
Minister:
is satisfied that the regulations are in respect of matters relating to higher
education; and
recommends to the Governer-General the making of the regulations.
It is expected that the Education Minister will consult the Minister responsible for
administering the Act in the course of making any recommendation to the
Governer-General to make any regulations under the Act.
Item 23 - Application provision
Item 23 is an application provision regarding the insertion of new section 53A (see
item 21) to explain that this amendment will only apply in relation to the conferring
of a regulated higher education award on an individual on or after 1 January 2023,
irrespective of whether the individual commenced the course of study leading to the
award before, on or after 1 January 2023.
This application provision ensures that from 1 January 2023, students graduating
from a regulated higher education award will be required to have a student
identifier.
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Part 2 - Contingent amendments
Division 1 - First contingency
Student Identifiers Act 2014
The amendments to the Act at items 24 to 27 of the Bill are contingent on the
commencement of the Education Legislation Amendment (Tuition Protection and
Other Measures) Act 2019 (Tuition Protection Act). The Tuition Protection Act will
implement a tuition protection model for students participating in the VET Student
Loans program and for higher education students accessing FEE-HELP or HECS-
HELP assistance at a private education provider or TAFE. The Tuition Protection
Act will amend the VET Students Loans Act 2016 and HESA to provide for the
administration of each sector by a relevant Tuition Protection Director with specific
functions.
Item 24 - Subsection 4(1)
Item 24 inserts two new definitions in the Act, 'HELP Tuition Protection Director'
and 'VSL Tuition Protection Director'. Following the commencement of the Tuition
Protection Act, the definition of HELP Tuition Protection Director will be inserted in
HESA and the definition of VSL Tuition Protection Director will be inserted in the
VET Student Loans Act 2016 to establish these two new roles.
Item 25 - After paragraph 14(1)(n)
Item 25 inserts new paragraphs 14(1)(na) and 14(1)(nb) after paragraph 14(1)(n) of
the Act to include the VSL Tuition Protection Director and HELP Tuition Protection
Director as entities that may request the Registrar to verify or give a student
identifier. Following the implementation of the tuition protection model through the
Tuition Protection Act, the VSL Tuition Protection Director and HELP Tuition
Protection Director may need to verify or obtain an identifier in their administration
of their functions under the VET Student Loans Act 2016 and HESA.
Item 26 - Section 18A
Item 26 inserts reference to the 'VSL Tuition Protection Director' at section 18A of
the Act to allow the VSL Tuition Protection Director to collect, use or disclose a
student identifier for the administration of VET student loans. Following the
commencement of the Tuition Protection Act, the VSL Tuition Protection Director
may perform functions or exercise powers in relation to the VET Student Loans Act
2016 which may require the collection, use or disclosure of a student identifier.
Item 27 - After paragraph 18B(2)(b)
Item 27 inserts new paragraph 18B(2)(ba) after paragraph 18B(2)(b) to include the
'HELP Tuition Protection Director' as a person that may collect, use or disclose a
student identifier for the purposes of HESA or any instrument made under HESA.
Following the commencement of the Tuition Protection Act, the HELP Tuition
Protection Director may perform functions or exercise powers in relation to HESA
which may require the collection, use or disclosure of a student identifier.
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Division 2 - Second contingency
Student Identifiers Act 2014
The amendments to the Act at items 28 and 29 are contingent on the
commencement of the Student Identifiers Amendment (Enhanced Student
Permissions) Act 2019 (Student Permissions Act). The Student Permissions Act
amends the Act, including the introduction of civil penalty provisions which are
enforceable through civil penalty proceedings or issuing infringement notices.
Items 28 and 29 - Paragraphs 29E(4)(a) and (b)
Paragraphs 29E(4)(a) and (b) of the Act will be inserted through the Student
Permissions Act. Items 28 and 29 amend proposed parapraphs 29E(4)(a) and (b) to
include reference to the 'Education Department'. These amendments will extend
the Registrar's new delegation power with respect to the Registrar's proposed
powers and functions under Part 5 of the Regulatory Powers (Standard Provisions)
Act 2014 to SES and APS employees (at the Executive Level 2 or equivalent) in the
Education Department. Following the extension of the Act to higher education
students made through this Bill, the Registrar may need to delegate this power to
relevant SES or APS employees in the Education Department as required.
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