Commonwealth of Australia Explanatory Memoranda

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STUDENT IDENTIFIERS AMENDMENT (ENHANCED STUDENT PERMISSIONS) BILL 2019

                               2019-2020




     THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




                    HOUSE OF REPRESENTATIVES




STUDENT IDENTIFIERS AMENDMENT (ENHANCED STUDENT
              PERMISSIONS) BILL 2019




         ADDENDUM TO THE EXPLANATORY MEMORANDUM




(Circulated by authority of the Minister for Employment, Skills, Small and
        Family Business, Senator the Honourable Michaelia Cash)
        STUDENT IDENTIFERS AMENDMENT (ENHANCED STUDENT
                      PERMISSIONS) BILL 2019

This Addendum responds to concerns raised by the Senate Standing Committee
for the Scrutiny of Bills in Scrutiny Digest No. 10, dated 5 December 2019, and
Scrutiny Digest No. 1, dated 5 February 2020.


Schedule 1 - Amendments
Student Identifiers Act 2014
Items 14 and 15 - section 53
After the second full paragraph on page 11 (beginning with the words: 'The
Commonwealth Minister will continue'  ... ), insert:
   The amendments proposed by the Bill do not significantly alter existing
   arrangements under section 53 of the Act. Rather, the amendments clarify
   that there is an express power and process to seek an exemption and to
   clarify the Registrar's powers to grant an exemption. That is, the amendments
   to section 53 of the Act clarify the procedural aspects of seeking and granting
   an exemption. As is the case for the current law, the amendments will require
   the Student Identifiers Registrar, before granting an exemption, to have regard
   to any matters set out in a legislative instrument made by the Commonwealth
   Minister.

   Prior to the amendments in the Bill, section 53 of the Act relevantly provides
   that a RTO must not issue VET qualification or VET statement of attainment to
   an individual if the individual has not been assigned a student identifier,
   unless an "issue" applies. Currently, the Commonwealth Minister has the
   power to, with the agreement of the Ministerial Council, make a legislative
   instrument that specifies such "issues". The effect of the existing provision is
   to allow the legislative instrument to outline cases where an exemption to the
   requirement to hold a student identifier applies.

   An exemption decision simply dictates whether an RTO can issue a VET
   qualification or VET statement of attainment where the student does not have
   a student identifier.

   The Act is a relatively new piece of legislation and its application to
   individuals' circumstances is evolving. Including the matters in a legislative
   instrument that the Student Identifiers Registrar is required to take into
   account when granting an exemption, ensures the student identifier regime
   continues to be able to adapt to the changing circumstances of students. This
   is important, since new and genuine reasons may emerge, justifying a
   student's exemption from the requirement to be issued a student identifier.
   The legislative instrument making power gives the Commonwealth Minister
   the flexibility to be able to respond to those new circumstances in a manner
    that is beneficial for students, while ensuring the ongoing integrity of the
    student identifiers regime.

    The making of legislative instruments by the Commonwealth Minister under
    the Act must be agreed to by the Ministerial Council as well as undergoing
    Parliamentary scrutiny.

    Section 53 of the Act operates primarily as a restriction imposed on RTOs in
    respect of when they can and cannot issue a VET qualification or VET
    statement of attainment. Importantly, the ultimate determinative issue from an
    RTO's or student's point of view is whether or not the qualification or
    statement of attainment can be issued.

    If a student seeking an exemption to the requirement to hold a student
    identifier is not granted an exemption, rather than seeking costly and
    potentially protracted review through the Administrative Appeals Tribunal
    (AAT) in relation to the exemption decision alone, the student will be able to
    achieve their objective of receiving their qualification or statement of
    attainment by progressing through the simple process of applying for a
    student identifier. In this context, an exemption from the requirement to hold a
    student identifier is simply a procedural step along the way to an ultimate
    outcome of receiving a qualification or statement of attainment.

After the third full paragraph on page 11 (beginning with the words: 'Exclusion of
merits reviews ... '), insert:

    It is important to ensure the limited resources of the AAT are reserved for
    matters where genuine issues that turn on merits are in dispute. It is
    anticipated the matters that will be included in the legislative instrument will be
    matters that will not lend themselves to factual dispute. Judicial review,
    including under the Administrative Decisions (Judicial Review) Act 1977, will
    remain available to students or affected RTOs where the exemption decision
    has been made involving an error of law.

    A merits review process would be disproportionate to the nature of the
    decision and the instances of exemption requests. 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 Student
    Identifier Registrar. Making decisions of the Student Identifiers Registrar
    subject to merits review would not be an efficient use of Commonwealth
    resources, as 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 AAT may delay the outcome of the request
    for an individual by a number of years, thereby delaying their award conferral
    and impacting their prospects of obtaining meaningful employment and
    greater career aspirations.

    As the Student Identifiers Registrar is obliged to make decisions based on fair
    and accountable reasoning, the decision to deny or allow an exemption would
be carefully considered and denied only on appropriate grounds. As such, it
would be time-consuming and costly to engage in de novo review of these
decisions, and not highly beneficial or protective for the individuals requesting
an exemption.

The student identifiers regime is a product and system designed with the
benefits to students considered at every stage of the application process, to
support their personal choices and help Australians maintain their lifelong
learning in order to pursue a meaningful and purposeful career.