House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Education and Training, Senator the Honourable Simon Birmingham)

Notes on Clauses

Clause 1 - Short title

Clause 1 provides for the Act to be the Education and Other Legislation Amendment Act (No. 1) 2017.

Clause 2 - Commencement

Subclause 2(1) inserts a three column table setting out commencement information for various provisions in the Bill. Each provision of the Bill specified in column 1 of the table commences (or is taken to have commenced) in accordance with column 2 of the table and any other statement in column 2 has effect according to its terms.

The table has the effect of providing for the following commencement times:

Matters to commence on the day the Act receives the Royal Assent:

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sections 1 to 3 and anything else in the Act not otherwise covered by the table.

Matters to commence on 1 July 2017:

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Schedule 1 - VET Student Loans Ombudsman

Matters to commence on the day after the Act receives the Royal Assent:

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Schedule 2 - Amendment of the ARC Act.

Clause 3 - Schedule(s)

Subclause 3(1) provides that any legislation that is specified in a schedule is amended or repealed as set out in the applicable Items in the schedule and that any other Item in a schedule has effect according to its terms.

Schedule 1 Vet Student Loans Ombudsman

Summary

Currently there is no national statutorily independent external body, able to hear and investigate student complaints in a consistent and quality-assured manner from all VET students of VET student loan providers or VET FEE-HELP providers.

Evidence to the Senate Education and Employment Committee inquiry into the VET Student Loans Bill 2016 highlighted widespread support for an Ombudsman for all VET loans (VET student loans and VET FEE-HELP assistance) and a strong preference for a model which involved industry but was independent and which did not establish a new statutory agency.

Prior to being passed, a new clause 42A was added to the VET Student Loans Bill enabling the Minister to specify an external dispute resolution scheme that provides for investigation and resolution of disputes relating to:

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VET student loans;

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compliance by approved course providers with the VET Student Loans Act;

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VET FEE-HELP assistance;

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compliance by VET providers with the HESA.

This Bill seeks to amend the Ombudsman Act to extend the jurisdiction of the Commonwealth Ombudsman to establish a VET Student Loans Ombudsman.

The external dispute resolution service to be provided by the VET Student Loans Ombudsman will:

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conduct investigations and make recommendations and make other reports, in relation to: VET loan assistance; and compliance by VET student loan scheme providers with the VET Student Loans Act, the HESA and any legislative instruments made under either of those Acts;

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give VET student loan scheme providers advice and training about the best practice for the handling of complaints made by VET students in relation to VET loan assistance;

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in collaboration with industry and stakeholders, lead the development, promotion, and review from time to time, of a code of practice relating to: provision of services by VET student loan scheme providers in relation to VET loan assistance; and handling of complaints made by VET students;

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perform any other function conferred on the VET Student Loans Ombudsman by the Ombudsman Act or another Act;

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provide reports to VET loan scheme providers (and the Minister and Secretary of the Department responsible for administering the VET Student Loans Act) about the outcome of investigations, as appropriate;

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provide annual and other reports to the Minister responsible for administering the Ombudsman Act about the operations of the VET Student Loans Ombudsman.

The functions of the VET Student Loans Ombudsman are consistent with the other functions of the Commonwealth Ombudsman, for example the operation of the Overseas Student Ombudsman.

Detailed explanation

Ombudsman Act 1976

Item 1

This item amends the long title of the Ombudsman Act to add in reference to a VET Student Loans Ombudsman.

Item 2

This item inserts definitions of the following terms into subsection 3(1) of the Ombudsman Act:

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VET loan assistance

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VET student

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VET student loan officer

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VET student loan principal executive officer

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VET student loan scheme provider.

The terms are intended to encompass both the VET Student Loans program and the former VET FEE-HELP assistance scheme; and former, prospective and currently enrolled students. This is to ensure that the jurisdiction of the VET Student Loans Ombudsman is sufficiently broad.

VET loan assistance has the meaning given in subclause 20ZM(4), that is a VET student loan (within the meaning of the VET Student Loans Act) or VET FEE-HELP assistance (within the meaning of the HESA).

VET student means a prospective student and a former student, as well as a student that is enrolled in a course of study with a VET student loan scheme provider.

VET student loan officer has the meaning given in subclause 20ZS(4) of the Bill - that is a person who is one of the following:

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is employed in the service of a VET student loan scheme provider

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is a member of the staff of the provider (whether or not the person is employed by the provider)

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performs services for or on behalf of the provider.

The definition is intentionally broad to ensure it covers employees, staff members, contractors and other officers who may be performing services for or on behalf for the provider.

VET student loan scheme provider means an approved course provider (within the meaning of the VET Student Loans Act) or a VET provider (within the meaning of the HESA). It also means a body that has been, but is no longer, an approved course provider or VET provider.

VET student loan principal executive officer has the meaning given in subclause 20ZS(5) of the Bill - that is a person who has executive responsibility for the operation of the VET student loan scheme provider. This might include (without limitation) directors, chief executive officers and chief financial officers.

Item 3

Paragraph 4A(e) of the Ombudsman Act sets out a number of functions of the Office of the Commonwealth Ombudsman for the purposes of the finance law. This item adds a new subparagraph 4A(e)(vi) so that these functions also include that of the VET Student Loans Ombudsman.

Item 4

This item inserts a new Part IIE into the Ombudsman Act to provide for the VET Student Loans Ombudsman, consisting of the new sections as set out below. The new Part IIE establishes the office of the VET Student Loans Ombudsman and sets out the powers and functions of the VET Student Loans Ombudsman.

Division 1 - Establishment and functions

Clause 20ZL - Establishment of office of VET Student Loans Ombudsman

This clause establishes the office of the VET Student Loans Ombudsman and provides that the office of the VET Student Loans Ombudsman is to be held by the same person who holds the office of the Commonwealth Ombudsman. This includes a person who is acting as the Commonwealth Ombudsman because he or she has been appointed to act in the position under section 29 of the Ombudsman Act.

The establishment of the VET Student Loans Ombudsman will involve creating a dedicated and nominated office within the Commonwealth Ombudsman office consistent with the approach taken for the establishment of the Overseas Students Ombudsman.

Clause 20ZM - Functions of VET Student Loans Ombudsman

This clause specifies the functions of the VET Student Loans Ombudsman.

Under paragraph 20ZM(1)(a), the VET Student Loans Ombudsman has the function of conducting investigations and making recommendations, and making other reports under Part IIE in relation to:

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VET loan assistance

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compliance by VET student loan scheme providers with the VET Student Loans Act, the HESA and any legislative instruments made under either of those Acts.

For the avoidance of doubt the VET Student Loans Ombudsman's investigations into compliance by VET student loan scheme providers with the legislative requirements of the VET Student Loans program and the VET FEE-HELP scheme is not of a general regulatory nature. Rather such investigations are intended to be in the context of complaints made by VET students against the provider, or investigations self-initiated by the VET Student Loans Ombudsman.

Under paragraph 20ZM(1)(b) the VET Student Loans Ombudsman has the function of giving VET student loan scheme providers advice and training about the best practice for the handling of complaints made by VET students.

Under paragraph 20ZM(1)(c) the VET Student Loans Ombudsman, in collaboration with industry and stakeholders, will lead the development, promotion and review of a code of practice relating to:

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provision of services to VET students by VET student loan scheme providers in relation to VET loan assistance

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handling of complaints made by VET students in relation to VET loan assistance.

In relation to the provision of services, the code of practice may address (amongst other things) the professional conduct and ethical behaviour of providers.

Under paragraph 20ZM(1)(d) the VET Student Loans Ombudsman may also perform any other functions conferred by the Ombudsman Act or any other Act (including by a legislative instruments made under the Ombudsman Act or any other Act). For example, this may include functions that might be conferred on the Ombudsman under the VET Student Loans Act.

Subsection 20ZM(2) provides that the VET Student Loans Ombudsman may consult with the following key stakeholders and industry bodies when developing or reviewing a code of practice:

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VET student loan scheme providers

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vocational education and training industry groups

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vocational education and training student bodies

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Commonwealth, state and territory agencies and other bodies with responsibility in relation to vocational education and training, including:

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the Department responsible for the administration of the VET Student Loans Act (currently, the Department of Education and Training)

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the National VET Regulator (as defined in the National Vocational Education and Training Regulator Act 2011, i.e. the Australian Skills Quality Authority)

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a body of a state or territory that registers educational providers (e.g. the Victorian Registration and Qualifications Authority and the Western Australia Training Accreditation Council).

Subclause 20ZM(2) is not prescriptive. The VET Student Loans Ombudsman may consult with the abovementioned key stakeholders and industry bodies at his or her discretion. He or she may also consult with other interested bodies and agencies, such as the Australian Competition and Consumer Commission, consumer law bodies and VET public interest groups. It is anticipated that the VET Student Loans Ombudsman will undertake public consultation when developing, promoting and reviewing the code of practice.

Subclause 20ZM(3) makes clear that the code of practice is not a legislative instrument. This provision is included to assist readers, given that the code of practice is administrative in character and not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003.

Subclause 20ZM(4) sets out the definition of VET loan assistance.

A note explains that this clause does not prevent the Commonwealth Ombudsman from investigating a Department, or its Secretary, or a Minister in relation to the provision of VET student loans under other provisions of the Ombudsman Act apart from the provisions contained in Part IIE (see clause 20ZZA).

Clause 20ZN - Performance of functions

Subclause 20ZN(1) provides that the VET Student Loans Ombudsman does not need to act in a formal manner when performing his or her functions (unless the Ombudsman Act, another Act, or a legislative instrument otherwise requires).

Subclause 20ZN(2) provides that the VET Student Loans Ombudsman, when performing his or her functions, may (subject to the Ombudsman Act, another Act, or a legislative instrument), inform himself or herself on any matter in any way he or she thinks fit, consult with anyone he or she thinks fit and receive both written and oral submissions.

Subclause 20ZN(3) provides that the VET Student Loans Ombudsman has the power to do anything that is necessary or convenient to be done for, or in in connection with the performance of his or her functions.

The intention of this clause is to provide the VET Student Loans Ombudsman with flexibility and discretion in how to perform his or her functions. This is to help make the process of dealing with the VET Student Loans Ombudsman straightforward, simple and streamlined. It also ensures that the VET Student Loans Ombudsman remains as accessible and responsive as possible and that he or she is not unnecessarily constrained by undue formalities in handling complaints and undertaking investigations.

It also recognises the complex situations in which the VET Student Loans Ombudsman may be performing his or her functions. In such instances there may be limited information or evidence available or it may be difficult to obtain further information. For example, the complaint may relate to actions that took place several years previously or the provider which is the subject of the complaint may no longer be in operation.

Division 2 - Investigations and complaints

Clause 20ZO - Investigations

This clause provides that, in performing his or her functions, the VET Student Loans Ombudsman may conduct an investigation:

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in relation to a complaint made under clause 20ZP, by a VET student about a VET student loan scheme provider, or

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on his or her own initiative.

As the VET Student Loans Ombudsman will be undertaking investigations into a variety of different complaints, he or she will have an overarching view of the VET industry. As such, it is important for the VET Student Loans Ombudsman to be able to be proactive and responsive. The VET Student Loans Ombudsman might initiate an investigation in relation to issues with specific providers or into systemic issues affecting the VET industry more generally in relation to the respective loan schemes.

Under clause 20ZS, various other powers of the Ombudsman are applied to the VET Student Loans Ombudsman. These include powers relevant to conducting investigations under sections 7A, 8, 8A, 9, 11A, 12, 13 and 14.

Clause 20ZP - Complaints

This clause provides that complaints may be made to the VET Student Loans Ombudsman against a VET student loans scheme provider by a VET student or on behalf of a student.

Under section 7 of the Ombudsman Act (which is applied to the VET Student Loans Ombudsman by virtue of clause 20ZS), complaints may be made orally or in writing. The VET Student Loans Ombudsman may request an oral complaint to be reduced to writing.

Clause 20ZQ - Referral of complaints to other bodies

This section provides that if the VET Student Loans Ombudsman considers that a complaint may be more effectively or conveniently handled by another body, the VET Student Loans Ombudsman must refer the complaint to that body.

When referring the complaint, the VET Student Loans Ombudsman must give notice to the complainant of the referral and must give all information and documents about the complaint that are in the possession of (or under the control of) the VET Student Loans Ombudsman to the other body.

By way of example, if a complaint is of a regulatory nature that relates to the academic content or quality of a course or assessment item, the VET Student Loans Ombudsman might refer this complaint to the National VET Regulator. If a complaint deals with competition or consumer law issues, the VET Student Loans Ombudsman might refer the complaint to the Australian Competition and Consumer Commission. If a complaint gives rise to questions of criminal behaviour (such as fraud against the Commonwealth), the VET Student Loans Ombudsman might refer the complaint to the Australian Federal Police.

Clause 20ZR - Deciding not to investigate complaints

This clause provides that the VET Student Loans Ombudsman may decide not to investigate or not to continue to investigate a complaint about a VET student loan scheme provider where the Ombudsman considers:

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the complaint is frivolous or vexatious, or was not made in good faith

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the complainant does not have a sufficient interest in the complaint

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an investigation / further investigation is not warranted in the circumstances

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the complainant has yet to raise the subject matter of the complaint with the VET student loan scheme provider

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the action came to the complainant's knowledge more than 3 years before the complaint was made

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the complainant has the right to seek review by a court or a tribunal, but has not done so.

In addition under subsection 7(2) (which is applied to the VET Student Loans Ombudsman by clause 20ZS) the Ombudsman also has the discretion not to investigate a complaint where a complaint is made orally to the Ombudsman and the Ombudsman requests the complainant to reduce the complaint to writing but the complainant declines to do so.

Under section 7A the Ombudsman has powers to undertake preliminary inquiries, which may inform his or her decision not to investigate a complaint.

The VET Student Loans Ombudsman's discretion about whether to undertake or continue an investigation is important in ensuring the proper use of the Ombudsman's resources and that investigations are not undertaken in relation to complaints made in bad faith.

Division 3 - Other powers of the VET Student Loans Ombudsman

Clause 20ZS - Application of Act to VET Student Loans Ombudsman

Subclause 20ZS(1) contains a table which explains how certain provisions in the Ombudsman Act will apply in relation to the VET Student Loans Ombudsman. By operation of the table:

Table item 1: the provisions covered by subsection 20ZS(2) will apply as though a reference to the Ombudsman or Commonwealth Ombudsman were a reference to the VET Student Loans Ombudsman.

Table item 2: the provisions covered by subsection 20ZS(2) will apply as though a reference to a Department or a prescribed authority were a reference to a VET student loans provider.

Table item 3: the provisions covered by subsection 20ZS(2) will apply as though a reference to the principal officer of a Department or prescribed authority were a reference to a VET student loan principal executive officer of a VET student loan scheme provider.

Table item 4: those provisions covered by subclause 20ZS(2) will apply as though a reference to an officer of a Department or prescribed authority were a reference to a VET student loan officer of a VET student loan scheme provider.

Table item 5: subsection 7A(1) (preliminary enquiries) will apply as though a reference to paragraph 5(1)(b) were a reference to paragraph 20ZO(b) (which enables the Ombudsman to conduct an investigation on his or her own initiative).

Table item 6: subsection 8A(1) (investigations by Commonwealth and State Ombudsmen) will apply as though a reference to a matter of administration were a reference to a function of the VET Student Loans Ombudsman.

Table item 7: subsection 11A(4) (powers of the Federal Court) will apply as though a reference to the Minister were a reference to the Minister who administers the Ombudsman Act and the Minister who administers the VET Student Loans Act.

Table item 8: subsections 12(4) and (5) (complainant and Department etc. to be informed) will apply as though a reference to section 15 (reports to the Ombudsman) were a reference to clause 20ZV (reporting to VET student loan scheme providers).

Table item 9: subsection 36(6A) (officers to observe confidentiality) will apply as though a reference to paragraphs 6(4D)(e) or 6(18)(d) (discretion not to investigate certain complaints) were a reference to paragraph 20ZQ(2)(b) (referral of complaints to other bodies).

Table item 10: paragraph 35AA(1)(a) (disclosure of information and documents to integrity Commissioner) will apply as though a reference to paragraph 5(1)(b) (functions of Ombudsman) were a reference to paragraph 20ZO(b) (investigations).

Table item 11: subsections 35B(2) and 35C(2) (paragraph (a) of the definition of listed disclosure method ) (disclosure of ACC and ACLEI information) will apply as though a reference to Division 2 of Part II (reports) were a reference to Division 4 of Part IIE (reports by the VET Student Loans Ombudsman).

Table item 12: subsections 35B(2) and 35C(2) (paragraph (b) of the definition of listed disclosure method ) (disclosure of ACC and ACLEI information) will apply as though a reference to sections 6 or 6A (discretion not to investigate certain complaints and transfer of complaints about ACC) were a reference to paragraph 20ZQ(2)(b) (referral of complaints to other bodies).

Subclause 20ZS(2) lists a number of provisions of the Ombudsman Act for the purposes of items 1 to 4 of the table in subsection 20ZS(1). These provisions are as follows:

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the definition of authorized person in subsection 3(1) (interpretation)

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section 7 (complaints)

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section 7A (preliminary inquiries)

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section 8 (investigations), other than paragraph (7A)(b) and subsections (8) to (12)

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section 8A (investigations by Commonwealth and State Ombudsmen), other than subsections (1A) to (1D)

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section 9 (power to obtain information and documents), other than paragraphs (1AA)(ab) and (ac) and paragraph (4)(ab)

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section 11A (powers of Federal Court of Australia), other than subsections (1) and (5)

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section 12 (complainant and Department etc. to be informed)

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section 13 (power to examine witnesses)

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section 31 (staff) other than subsection 31(2)

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Part IV (miscellaneous), other than the following: subsections 34(1) to (2C) (delegation); paragraphs 35(1)(e) and (f) and subparagraph (3)(b)(ia) (officers to observe confidentiality); and subsection 35A(3) (disclosure of information by the Ombudsman).

Subclause 20ZS(3) provides that section 14 (power to enter premises) applies in relation to the VET Student Loans Ombudsman as if paragraph 14(a) referred to:

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a place that is occupied by a VET student loan scheme provider; or

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a place that is occupied by a VET student loan scheme officer of a VET student loan scheme provider predominantly for the purposes of:

o

carrying out the officer's powers, duties and functions as an employee in the provider's service, or a member of the provider's staff; or

o

performing services for or on behalf of the provider.

Paragraph 20ZS(3)(b) clarifies that the VET Student Loans Ombudsman's power to enter a place occupied by a VET student loan scheme officer is intended to apply to premises where the officer is carrying out his or her powers, duties and functions as an employee of, or performing services for or on behalf of, the provider. It is not intended to provide the VET Student Loans Ombudsman the power to access other premises of the officer (such as their personal residence or another place of employment, which is not related to the provider).

The application and effect of each provision set out in subsections 20ZS(1), (2) and (3) are explained separately in Appendix A at the end of Schedule 1 to this Explanatory Memorandum.

Subclause 20ZS(4) explains the meaning of a VET student loan officer of a VET student loan scheme provider. This is someone who is employed by the provider, or is a member of the provider's staff (whether employed or not), or performs services for or on behalf of the provider.

Subclause 20ZS(5) explains that the VET student loan principal executive officer of a VET student loan scheme provider is the person with executive responsibility for the provider's operation.

Clause 20ZT - Duty to accord procedural fairness

This clause provides that the common law rules of procedural fairness are to apply generally to the VET Student Loans Ombudsman in the exercise of any of his or her powers under the Ombudsman Act.

Examples explain how procedural fairness could be applied. The first of these examples notes that if the VET Student Loans Ombudsman sets out a critical opinion in a report under clause 20ZV, he or she must provide that person with an opportunity to respond to the criticism (subsection 8(5)).

The second example notes that if the VET Student Loans Ombudsman sets out a critical opinion of a person in disclosing information or making a statement under subsection 35A(1), or referring to an investigation in a report under clause 20ZX, he or she must accord the person procedural fairness.

Division 4 - Reporting by the VET Student Loans Ombudsman

Clause 20ZU - Disclosure of identifying information

This clause is intended to protect the confidentiality of complainants and provides that, in making a report under clause 20ZV or 20ZX, the VET Student Loans Ombudsman must not disclose the name of a complainant who is an individual or any information which would enable the identification of a complainant who is an individual, unless it is fair and reasonable to do so.

Clause 20ZV - Reports to VET student loans providers

Subclauses 20ZV(1) and (2) require the VET Student Loans Ombudsman to report to a VET student loan scheme provider after the completion of an investigation if:

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the VET Student Loans Ombudsman forms the view that the action taken by the provider seems to have been contrary to law; was unreasonable, unjust, oppressive or improperly discriminatory; or otherwise wrong in all the circumstances; and

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the VET Student Loans Ombudsman is of the opinion that something should be, or could have been done in relation to the action taken. For example, if some particular action could be taken to mitigate or alter the effects of an action; or if a policy or practice on which the action was based should be altered; or if reasons should have been given for the action taken (but were not); or if any other thing should be done.

The VET Student Loans Ombudsman must include in the report his or her reasons for the opinions expressed in the report and may also include in the report any recommendations he or she thinks appropriate to make.

Under subclause 20ZV(4), the VET Student Loans Ombudsman may ask the provider to provide, within a specified time, particulars of any action proposed to be taken in response to the matters set out in the report.

Under subclause 20ZV(5), the VET student loan scheme provider may give the VET Student Loans Ombudsman comments on the report.

Under subclauses 20ZV(6) and (7), the VET Student Loans Ombudsman must give a copy of the report and any comments the provider has made about the report to the Secretary of the Department administering the VET Student Loans but has the discretion whether or not to give a copy of the report to the Minister administering the VET Student Loans Act. This ensures that the Minister is not overburdened with having to receive less significant reports.

In addition, under section 12 (which is applied to the VET Student Loan Ombudsman by clause 20ZS), where an investigation is complete the Ombudsman must provide the complainant and provider with particulars of the investigation. Further, when the Ombudsman provides a report to a VET student loan scheme provider under section 20ZV containing recommendations:

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the Ombudsman must provide the complainant with the recommendations and any comments - if the provider does not take adequate and appropriate action in relation to the recommendations; and

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the Ombudsman may provide the complainant with the recommendations in any other case, as the Ombudsman sees fit.

Clause 20ZW - Minister to table reports about VET student loan scheme providers in Parliament

This section provides the means for ensuring that consequences attach to the failure of a VET student loan scheme provider to take action within a reasonable time in relation to matters and recommendations included in the VET Student Loans Ombudsman's report made under clause 20ZV.

If the provider does not take action that the VET Student Loans Ombudsman considers adequate and appropriate in the circumstances within a reasonable time period, the VET Student Loans Ombudsman may provide a copy of the report and comments to the Minister administering the VET Student Loans Act (if he or she has not already done so under clause 20ZV) and request that Minister to table copies of the report before each House of Parliament. If so requested, the Minister must, within 15 sittings day after receipt of request, table copies of the report, along with any comments made by the VET student loan scheme provider under subclause 20ZV(5).

Clause 20ZX - Annual and other reports by the VET Student Loans Ombudsman

Subclause 20ZX(1) requires the VET Student Loans Ombudsman to give the Minister administering the Ombudsman Act an annual report each year, for presentation to Parliament, on the VET Student Loans Ombudsman's operations during the financial year.

Subclause 20ZX(2) provides that the VET Student Loans Ombudsman may also, from time to time, give the Minister administering the Ombudsman Act other reports for presentation to Parliament. These may relate to the VET Student Loans Ombudsman's operations during a part of a year, or about any matter concerning the exercise of powers or functions by the VET Student Loans Ombudsman.

Subclause 20ZX(3) provides the VET Student Loans Ombudsman with the discretion to give a copy of the annual report or other reports (mentioned in subclauses 20ZX(1) and (2)) to the Secretary of the Department responsible for administering the VET Student Loans Act.

Subclause 20ZX(4) provides that subsections 20ZX(1) and (2) do not affect the VET Student Loans Ombudsman's powers and duties under clauses 20ZV (reports to VET student loans providers) or clause 20ZW (Minister to table reports about VET student loan scheme providers in Parliament).

Subclause 20ZX(5) provides that any reports given to the Minister by the VET Student Loans Ombudsman under subclauses 20ZX(1) or (2) must be tabled by the Minister in each House of Parliament within 15 sitting days after receipt of such reports.

Subclause 20ZX(6) provides that the Ombudsman's reports under this clause can be included in a report under section 19 (reports to Parliament by the Ombudsman) or section 46 of the Public Governance, Performance and Accountability Act 2013.

Subclause 20ZX(7) provides that a report about the operations of the VET Student Loans Ombudsman for a period must include the following:

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the number of complaints received during the period;

•

the number of investigations started and completed during the period. This information should be provided separately about investigations resulting from complaints received and investigations undertaken on the initiative of the VET Student Loans Ombudsman;

•

the number of times the VET Student Loans Ombudsman exercised his or her powers under section 9 (power to obtain information or documents), and the circumstances for exercising that power in each instance.

Subclause 20ZX(8) sets out the matters the VET Student Loans Ombudsman may include in his or her report. These are:

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details of the circumstances and number of occasions during the period where the VET Student Loans Ombudsman decided under clause 20ZQ to refer a complaint to another body

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details of recommendations made during the period in reports to VET student loans providers under clause 20ZV

•

statistical information about actions taken during the period as a result of such recommendations to VET student loans providers

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details of action that the VET Student Loans Ombudsman took during the period to promote best practice in dealing with complaints

•

details of the VET Student Loans Ombudsman's observations regarding any trends in complaints or any broader issues arising from investigations.

Clause 20ZY - VET Student Loans Ombudsman may notify of misconduct

This section applies in circumstances where, in undertaking an investigation the VET Student Loans Ombudsman identifies misconduct on the part of a VET student loan officer (which is broadly defined in subclause 20ZS(4) to include employees, staff members and people performing services for or on behalf of the VET student loan scheme provider). In these circumstances, if the evidence of misconduct is sufficiently compelling to justify his or her doing so, the VET Student Loans Ombudsman may bring the misconduct to the attention of the VET student loan scheme provider principal executive officer (either before or after completing the investigation).

Clause 20ZZ - Limitation on liability where information or documents provided in good faith or when required to do so

Subclause 20ZZ(1) provides statutory protection to a person who has, in good faith, given information, a document or other record to the VET Student Loans Ombudsman in relation to the VET Student Loans Ombudsman's functions or powers (other than in accordance with a requirement under section 9 - power to obtain information or documents).

Subclause 20ZZ(2) is an avoidance of doubt provision which clarifies that subclause(1) does not prevent a person from being liable to a proceeding or being subject to a liability for conduct of the person that is revealed by the information, document or record given to the VET Student Loans Ombudsman. In combination, these subsections are intended to encourage people to provide information on a voluntary basis, while at the same time ensuring that this provision is not used to avoid liability for any conduct revealed by the information.

The section does not limit the immunity from civil suit provided by section 37. Section 37 protects a person from actions for loss, damage or injury of any kind suffered by another person as a result of the making of a complaint to the VET Student Loans Ombudsman under the Ombudsman Act, or making a statement, giving information or a document to a person, whether or not the statement was made or the information given because it was required to be given by the operation of section 9. The immunity only applies if the complaint was made or the statement, information or document was given, in good faith.

Note also that subsections 7A(1A) to (1E), subsections 8(2A) to (2E) and subsection 9(5) (which are applied to the VET Student Loans Ombudsman by clause 20ZS), are also provisions related to limitations on liability in relation to the disclosure of information or production of documents to the VET Student Loans Ombudsman.

Division 5 - Other provisions relating to the VET Student Loans Ombudsman

Clause 20ZZA - Part does not limit application of other provisions

This clause provides that Part IIE does not, by implication, affect the operation of any other provisions of the Ombudsman Act. For example, a particular complaint by a student of the VET loan scheme provider might give rise to issues within the jurisdiction of the Commonwealth Ombudsman (e.g. relating to the conduct of a Department) or the Overseas Students Ombudsman.

Clause 20ZZB - Alternative constitutional basis

This clause provides that, without limiting its effect apart from this clause, Part IIE also has the effect it would have if each reference to a VET student loan scheme provider were expressly confined to those providers that are corporations to which paragraph 51(xx) of the Constitution applies.

This section is consistent with section 115A of the VET Student Loans Act, which deals with the alternative constitutional basis for that Act. The consistency between this section and section 115A reflects the fundamental relevance of the VET Student Loans program to the establishment of the VET Student Loans Ombudsman.

Item 5 - Section 20ZL

This section renumbers the existing section 20ZL of the Ombudsman Act (discretion not to investigate certain complaints) as section 21A, as the new Part IIE commenced from a new provision numbered as section 20ZL.

Item 6 - After subsection 34(2C)

Section 34 of the Ombudsman Act concerns the delegation of powers.

This item inserts a new subsection 34(3) to give the VET Student Loans Ombudsman the power to delegate to a person generally, or as described in an instrument of delegation, all his or her powers or any of his or her powers under the Ombudsman Act, except that the VET Student Loans Ombudsman must not delegate his or her powers under the following provisions:

•

clause 20ZV (reports to VET student loan scheme providers)

•

clause 20ZW (Minister to table reports about VET student loan scheme providers in Parliament)

•

clause 20ZX (annual and other reports by the VET Student Loans Ombudsman).

The exclusion above sections from the delegation of powers, is provided in respect of those provisions, which it would not be appropriate for the VET Student Loans Ombudsman to delegate.

VET Student Loans Act 2016

Item 7 - Section 6

This item inserts the following definition into section 6 of the VET Student Loans Act:

member of an external dispute resolution scheme that is Part IIE of the Ombudsman Act 1975 (which establishes the VET Student Loans Ombudsman): see section 42BA of this Act.

This amendment is necessary given new section 42BA to be inserted under item 10 of Schedule 1 to this Bill.

Section 42A of the VET Student Loans Act enables the Minister, by legislative instrument, to specify an external dispute resolution scheme for the purposes of that Act. It is intended that the VET Student Loans Ombudsman will be specified as an external dispute resolution scheme by a legislative instrument made under section 42A.

Item 8 - Section 6 (paragraph (b) of the definition of officer of an approved external dispute resolution scheme operator )

Item 8 repeals paragraph (b) of the definition of officer of an approved external dispute resolution scheme operator in section 6 of the VET Student Loans Act and substitutes new paragraph (b) and (c) so that the definition will read:

officer of an approved external dispute resolution scheme operator means:

(a)

an officer or employee of an approved external dispute resolution scheme operator; or

(b)

if the VET Student Loans Ombudsman is an approved external dispute resolution scheme operator-the VET Student Loans Ombudsman or a member of the staff of the VET Student Loans Ombudsman (see Part IIE of the Ombudsman Act 1976); or

(c)

in any case-a person who performs services for or on behalf of an approved external dispute resolution operator.

Staff of the VET Student Loans Ombudsman are employees of the Commonwealth (not of the VET Student Loans Ombudsman specifically). This amendment to paragraph (b) ensures that the VET Student Loans Ombudsman and staff are covered in the definition of "officer of an approved external dispute resolution scheme operator," and by extension to the definition of "VET officer", in the VET Student Loans Act.

Item 9 - At the end of paragraph 25(2)(h)

Section 25 of the VET Student Loans Act allows the Secretary to approve a body as an approved course provider if satisfied that the body meets the course provider requirements. Subsection 25(2) of the VET Student Loans Act specifies a number of criteria a body must meet in order to meet those requirements. One of these is that the body must be a member of an approved external dispute resolution scheme (paragraph 25(2)(h)).

Section 42A of the VET Student Loans Act provides that the Minister may, by legislative instrument, specify an external dispute resolution scheme.

This item adds a note at the end of paragraph 25(2)(h), the effect of which is to explain that if Part IIE of the Ombudsman Act is an external dispute resolution scheme, all approved course providers are taken to be members of the scheme (see new section 42BA).

Item 10 - After section 42B

This item inserts a new section 42BA into the VET Student Loans Act.

The new section 42BA provides that if the Minister makes a legislative instrument under section 42A of the VET Student Loans Act specifying Part IIE of the Ombudsman Act as an external dispute resolution scheme then:

•

the scheme is taken to be operated by the VET Student Loans Ombudsman

•

all approved course providers are taken to be members of the scheme.

Under section 42A when the Minister, by legislative instrument, specifies a scheme as an external dispute resolution scheme, he or she must also specify the operator of the scheme. The new section 42BA expressly provides that the VET Student Loans Ombudsman is the "operator" of VET Student Loans Ombudsman as an external dispute resolution scheme. This is for the avoidance of doubt.

The concept of membership of an approved dispute resolution scheme is a requirement of approval of an approved course provider (section 25(2)(h)). It is also referred to in section 42C and section 46 of the VET Student Loans Act. However, the VET Student Loans Ombudsman as an external dispute resolution scheme would not provide for "membership" as traditionally understood by that term. For example, approved course providers are not required to make an application to be assed for membership. Therefore, the amendment to section 42BA clarifies that all approved course providers are deemed to be members of the VET Student Loans Ombudsman if it is specified as an external dispute resolution scheme.

Appendix A

This appendix is included to explain the operation of subclauses 20ZS(1), (2) and (3). Subclauses 20ZS(1), (2) and (3) set out a list of the existing provisions in the Ombudsman Act and specify the manner in which these provisions will apply in relation to the VET Student Loans Ombudsman.

The application and effect of each of the following provisions are explained below:

•

the definition of authorized person in subsection 3(1) (interpretation);

•

section 7 (complaints);

•

section 7A (preliminary inquiries);

•

section 8 (investigations), other than: paragraph (7A)(b); and subsections (8) to (12);

•

section 8A (investigations by Commonwealth and State Ombudsmen), other than subsections (1A) to (1D);

•

section 9 (power to obtain information and documents), other than: paragraphs (1AA)(ab) and (ac); and paragraph (4)(ab);

•

section 11A (powers of Federal Court of Australia), other than subsections (1) and (5);

•

section 12 (complainant and Department etc. to be informed);

•

section 13 (power to examine witnesses);

•

section 14 (power to enter premises)

•

section 31 (staff), other than subsection (2);

•

Part IV (miscellaneous), other than the following: subsections 34(1) to (2C) (delegation); paragraphs 35(1)(e) and (f) and subparagraph (3)(b)(ia) (officers to observe confidentiality); subsection 35A(3) (disclosure of information by Ombudsman).

Subsection 3(1)

Clause 20ZS applies the definition of authorized person in subsection 3(1) of the Ombudsman Act, however a reference to the Ombudsman in the definition is to be read as a reference to the VET Student Loans Ombudsman.

Section 7 - Complaints

Clause 20ZS applies section 7 of the Ombudsman Act.

This section sets out how to make a complaint to the VET Student Loans Ombudsman. Although a complaint may be made to the VET Student Loans Ombudsman either orally or in writing, the VET Student Loans Ombudsman may at any time reduce a complaint to writing or require the complainant to do so. If the VET Student Loans Ombudsman asks the complainant to reduce the complaint to writing and he or she refuses to do so, the VET Student Loans Ombudsman may refuse to investigate the complaint, or investigate it further, until the complainant complies with the request.

Subsections 7(3) and (4) explain the rights of a person in custody to make a complaint and receive correspondence from the VET Student Loans Ombudsman. A person in custody (a detainee) has the right to ask for facilities to complain in writing to the VET Student Loans Ombudsman, have any subsequent information about the complaint sent to the VET Student Loans Ombudsman and have the complaint or any further information sent to the VET Student Loans Ombudsman in a sealed envelope.

A detainee also has the right to receive, without undue delay, any sealed envelope addressed to him or her by the VET Student Loans Ombudsman that comes into the possession of the person holding him or her in custody or performing duties for the person who is holding the other in custody. Persons holding the detainee in custody do not have the right to open a sealed letter from the VET Student Loans Ombudsman to the detainee or from the detainee to the VET Student Loans Ombudsman.

For the purposes of identifying and delivering sealed correspondence to detainees the VET Student Loans Ombudsman may make special arrangements with the appropriate authority of a State or Territory.

Section 7A - Preliminary inquiries

Clause 20ZS applies section 7A of the Ombudsman Act.

Where a complaint is made to the VET Student Loans Ombudsman, this section allows the VET Student Loans Ombudsman to make inquiries of the VET student loan principal executive officer of the provider to:

•

determine whether the VET Student Loans Ombudsman is authorised to investigate the action; or

•

where the VET Student Loans Ombudsman is authorised to investigate - to determine whether or not the Ombudsman may exercise his or her discretion not to investigate the action.

The VET Student Loans Ombudsman may make an arrangement with the VET student loan principal executive officer of a VET student loan scheme provider setting out the officers with whom the VET Student Loans Ombudsman may make all inquiries, or inquiries within a specified class.

Subsections 7A(1A), (1B), (1C), (1D) and (1E) provide for disclosure of information. The purpose of these subsections is to enable a VET student loan scheme provider to provide information to the VET Student Loans Ombudsman notwithstanding any law that would otherwise preclude, inhibit or provide conditions on doing so, where requested by the VET Student Loans Ombudsman or where the VET student loan scheme provider reasonably considers the information would be relevant to the VET Student Loans Ombudsman's inquiries.

The provisions enable VET student loan scheme providers to provide information to the VET Student Loans Ombudsman without breaching privacy legislation, secrecy or confidentiality requirements, or other laws that might inhibit disclosure of information to the VET Student Loans Ombudsman, and without the need for the Ombudsman to issue a formal notice (under section 9 of the Ombudsman Act) requiring the information.

The disclosure of information under these provisions would be entirely discretionary. If a VET student loan scheme provider does not wish to provide the information for any reason, it will be entitled not to do so. In those circumstances, the VET Student Loans Ombudsman might consider issuing a notice under section 9 of the Ombudsman Act requiring the information.

Section 8 - Investigations

Clause 20ZS applies section 8 of the Ombudsman Act, other than paragraph (7A)(b) and subsections (8) to (12).

Section 8 sets out the manner and process of conducting investigations. The powers set out in section 8 may be exercised by the VET Student Loans Ombudsman at any time during an investigation, including before the commencement of an investigation or after completion.

Subsection 8(1) requires the VET Student Loans Ombudsman to inform the VET student loan principal executive officer of a VET student loan scheme provider that an action is to be investigated, prior to commencing the investigation.

Subsection 8(1A) provides that the VET Student Loans Ombudsman may make an arrangement with the VET student loan principal executive officer of a VET student loan scheme provider to provide for the manner, and the period within which, the VET Student Loans Ombudsman is to inform the VET student loan principal executive officer that he or she proposes to investigate actions of the provider.

Subsections 8(2) and (3) provide that subject to the Ombudsman Act, investigations can be conducted in any way the VET Student Loans Ombudsman thinks fit but must be conducted in private. Subject to the Ombudsman Act the VET Student Loans Ombudsman has a wide discretion to obtain information from such persons and make such inquiries as he or she thinks fit.

Subsections 8(2A), (2B), (2C), (2D) and (2E) provide that a VET student loan scheme provider or any person may provide information to the VET Student Loans Ombudsman notwithstanding any law that would otherwise preclude, inhibit or provide conditions on doing so, where requested by the VET Student Loans Ombudsman or where the VET student loan scheme provider or person reasonably considers the information would be relevant to the Ombudsman's investigation.

Subsection 8(4) provides that the VET Student Loans Ombudsman does not have to allow a complainant or any other person to appear before him or her in connection with an investigation.

However, subsection 8(5) provides that the VET Student Loans Ombudsman is subject to special obligations if he or she expressly or impliedly criticises a VET student loan scheme provider in a report in respect of an investigation. In such cases, before completing the investigation the VET Student Loans Ombudsman must afford the VET student loan principal executive officer of the provider and the VET student loan officer principally concerned in the investigation, opportunities to appear before him or her, or before an authorized person, to make submissions, either orally or in writing about the action and, if the opinions are about a person, allow the person to do the same.

Subsection 8(6) provides that if the VET student loan principal executive officer of a VET student loan scheme provider is afforded the opportunity of an appearance, the VET student loan principal executive officer may appear in person or authorise someone else to appear on his or her behalf. A person other than a VET student loan principal executive officer who is afforded a right of appearance may, with the approval of the VET Student Loans Ombudsman or the person authorised by the VET Student Loans Ombudsman, be represented by another person at the appearance.

Subsection 8(7A) provides that where, in relation to an investigation, the VET Student Loans Ombudsman proposes to give a person the opportunity to appear before him or her, or before an authorised person, and to make submissions under subsection 8(5), or proposes to require the person to produce information or documents under section 9, the complaint must be reduced to writing, if it was made orally.

Section 8A

Clause 20ZS applies section 8A of the Ombudsman Act, other than subsections 8A(1A) to 8A(1D).

Section 8A(1) enables the VET Student Loans Ombudsman to make an arrangement with the Ombudsman of a State (or the Ombudsmen of two or more States) to jointly investigate action taken by a VET student loan scheme provider that relates to a function of the VET Student Loans Ombudsman.

If the VET Student Loans Ombudsman does enter into such an arrangement, the arrangement must be in writing and may be varied or revoked. In addition, the arrangement may relate to particular actions or classes of actions.

Subsection 8A(6) enables the making of regulations that relate to the participation of the VET Student Loans Ombudsman in the proposed joint investigations.

Subsection 8A(7) clarifies that nothing in the provisions of section 8A affect the powers and duties of the VET Student Loans Ombudsman under any other provision of the Ombudsman Act. Subsection 8A(8) further clarifies that the VET Student Loans Ombudsman is not empowered to exercise any of the powers of the Ombudsman of a State other than in accordance with subsection 34(7) of the Ombudsman Act, nor to enter into an arrangement for the exercise of a power of the VET Student Loans Ombudsman by the Ombudsman of a State other than in accordance with an instrument of delegation made under subsection 34(1).

Section 9 - Power to obtain information and documents

Clause 20ZS applies section 9 of the Ombudsman Act, other than paragraphs 9(1AA)(ab) and (ac), and paragraph 9(4)(ab).

Subsection 9(1) gives the VET Student Loans Ombudsman the power to require a person, whom he or she believes capable of providing information or producing documents or other records relevant to an investigation under Part IIE, to provide the information or produce the documents or other records at a place and within a time, or on a date and at a time, specified by notice in writing, served on the person. The information must be provided in writing to the VET Student Loans Ombudsman, signed by the person if the notice was served on an individual and signed by an officer of the body corporate, if the notice was served on a body corporate.

Subsection 9(1AA) addresses the situation where the VET Student Loans Ombudsman believes that a VET student loans officer of a VET student loan scheme provider has information, documents or records relevant to an investigation but the VET Student Loans Ombudsman does not know the identity of that officer. In such cases, the VET Student Loans Ombudsman may serve a notice on the VET student loan principal executive officer requiring that VET student loan principal executive officer, or a person nominated by the VET student loan principal executive officer, to attend at the place and within the period (or on the specified date and time) specified in the notice. The person on whom the notice is served must appear to answer questions relevant to the investigation or to produce such documents or other record as are specified in the notice.

Subsection 9(1A) gives the VET Student Loans Ombudsman the right to take possession of documents and records produced to him or her under subsection 9(1) or 9(1AA), or an order under subsection 11A(2), and to copy them, take extracts from them and to retain them as long as necessary for the purposes of the investigation. However, the VET Student Loans Ombudsman must allow a person who would be entitled to inspect the documents or records, if they were not in his or her possession, to inspect them at all reasonable times.

Subsection 9(2) allows the VET Student Loans Ombudsman to serve a notice on a person whom he or she believes is able to give information relevant to an investigation under the Ombudsman Act, requiring them to attend before a person specified in the notice at a specified date, time and place, to answer questions relevant to the investigation.

Subsection 9(3) imposes limits on the VET Student Loans Ombudsman's powers to require a person to provide information, answer questions or produce documents or records where the Attorney-General gives the VET Student Loans Ombudsman a certificate certifying that the disclosure of the information or documents would be contrary to the public interest. The provision has effect where the Attorney-General certifies that the disclosure would be contrary to the public interest.

Subsection 9(4) sets out situations where provisions of other enactments will not excuse a person from providing information or producing a document or record or answering questions when required to do so under the Ombudsman Act. However, the information, document, record or answer to a question is not admissible in evidence against the person in proceedings except in a few limited situations set out in subsection 9(4).

Subsection 9(5) provides that a person is not liable to a penalty under any other enactment for providing information, producing a document, or record or answering questions when required to so under the Ombudsman Act.

Subsection 9(5A) provides that the fact that a person is not excused from doing these things does not affect a claim of legal professional privilege that anyone may make in relation to the information, documents or records.

The effect of subsection 9(6) is that the reference in subsection 9(1) to a VET student loan officer in relation to a VET student loan scheme provider that is a body corporate includes a reference to a director, secretary, executive officer or employee of the body corporate.

For the purposes of section 9 "State" includes the Australian Capital Territory and the Northern Territory.

Section 11A - Powers of the Federal Court of Australia

Clause 20ZS applies subsections 11A(2) to (4) of the Ombudsman Act.

These provisions strengthen the VET Student Loans Ombudsman's ability to obtain information or documents necessary to the conduct of an investigation where a person fails to respond to a request from the VET Student Loans Ombudsman.

The VET Student Loans Ombudsman can make an application to the Federal Court of Australia but only if he or she first informs the Minister administering the Ombudsman Act and the Minister administering the VET Student Loans Act in writing of his or her reasons for doing so.

An application may be made for an order directing a person who has failed to respond to a notice served on him or her under section 9 to provide information, produce documents or other records to attend before the VET Student Loans Ombudsman to answer questions, as he or she was required to do by the notice.

Section 12 - Complainant and Department etc. to be informed

Clause 20ZS applies section 12 of the Ombudsman Act.

This section imposes obligations on the VET Student Loans Ombudsman to inform parties about the outcome of an investigation.

If the VET Student Loans Ombudsman does not investigate, or continue to investigate, an action taken by a VET student loan scheme provider which is the subject of a complaint, the VET Student Loans Ombudsman must inform the complainant as soon as practicable, and in any manner the VET Student Loans Ombudsman thinks fit, that he or she has decided not to investigate, or not to continue investigating the action and the reasons for his or her decision.

An exception to the requirement to inform a VET student loan scheme provider is provided in subsection 12(2). The exception applies where the VET Student Loans Ombudsman has made an arrangement with a VET student loan scheme provider about actions in relation to complaints made to the VET Student Loans Ombudsman. Such arrangements may set out the manner in which, and the period within which, the VET Student Loans Ombudsman has to inform a VET student loan scheme provider of his or her decision not to investigate or continue to investigate actions and the reasons for his or her decision. An arrangement may also provide that the VET Student Loans Ombudsman is not required to inform a VET student loan scheme provider of his or her decision not to investigate or continue to investigate actions or the reasons for his or her decision.

Subsections 12(3) and (4) explain that the VET Student Loans Ombudsman must give a VET student loan scheme provider the details of the investigation of an action, which was the subject of a complaint, when the investigation is completed. The VET Student Loans Ombudsman can provide this information in a way, and at the times, he or she thinks fit. The VET Student Loans Ombudsman also has discretion to give suggestions or comments relating to, or arising from, an investigation that he or she has carried out, to a VET student loan scheme provider, or to another body or person.

Subsection 12(5) provides that, if the VET Student Loans Ombudsman gives a report containing recommendations about action which has been the subject of a complaint to a VET student loan scheme provider, and the VET Student Loans Ombudsman considers that action that is adequate and appropriate is not taken in relation to the recommendations within a reasonable time, the VET Student Loans Ombudsman must give the complainant a copy of the recommendations and any comments he or she thinks appropriate. In any other case, the VET Student Loans Ombudsman may give the complainant a copy of the recommendations and any comments he or she thinks fit.

Section 13 - Power to examine witnesses

Clause 20ZS applies section 13 of the Ombudsman Act.

Where the VET Student Loans Ombudsman requires a person to attend before him or her in the exercise of his or her powers under section 9 of the Ombudsman Act, the VET Student Loans Ombudsman may administer an oath or affirmation to the person and examine the person on oath or affirmation.

Where the VET Student Loans Ombudsman serves a notice on a person (the respondent) under subsection 9(2) of the Ombudsman Act, requiring the respondent to attend before the person specified in the notice, the person before whom the respondent is required to attend may also administer an oath or affirmation to the respondent and examine him or her on oath or affirmation.

Section 14 - Power to enter premises

Clause 20ZS provides that section 14 of the Ombudsman Act applies in relation to the VET Student Loans Ombudsman as if paragraph 14(a) referred to:

•

a place that is occupied by a VET student loan scheme provider; or

•

a place that is occupied by a VET student loan scheme officer of a VET student loan scheme provider predominantly for the purposes of :

o

carrying out the officer's powers, duties and functions as an employee in the provider's service, or a member of the provider's staff; or

o

performing services for or on behalf of the provider.

Section 14 provides that for the purposes of an investigation an authorised person may at any reasonable time of the day, enter a place that is occupied by a VET student loan scheme provider or (subject to the qualifications in paragraph 20ZS(3)(b) as to the nature of the premises) a VET student loan scheme officer, and carry on the investigation at that place. There are some limitations to this right as set out in subsections 14(2), (3) and (4).

Section 31 - Staff

Clause 20ZS provides that subsection 31(1) of the Ombudsman Act applies. This subsection provides that the staff required for the purposes of the Ombudsman Act shall be persons engaged under the Public Service Act 1999.

Section 33 - Ombudsman not to be sued

Clause 20ZS applies section 33 of the Ombudsman Act.

Subject only to the obligations imposed on the VET Student Loans Ombudsman under section 35 of the Ombudsman Act to observe confidentiality, section 33 provides statutory immunity from an action, suit or proceeding for the VET Student Loans Ombudsman in relation to anything done or omitted to be done in good faith in the service of, or purported exercise of, any powers or authority conferred by the Ombudsman Act.

Section 34 - Delegation

Clause 20ZS provides that section 34 of the Ombudsman Act applies, other than subsections 34(1) to (2C). Note that Item 6 of Schedule 1 to the Bill inserts a new subsection 34(2C)(3), as discussed above.

Subsection 34(5) provides that a delegate shall produce, upon request, the instrument of delegation (or a copy) for inspection by any person affected by the exercise of delegated powers.

Subsection 34(7) provides that where in accordance with a law of a State, the Ombudsman of a State delegates to the VET Student Loans Ombudsman, either generally or as otherwise provided by the instrument of delegation, any of his or her powers and the Minister consents to the exercise of the power or powers, the VET Student Loans Ombudsman is authorised to exercise that power accordingly.

Section 35 - Officers to observe confidentiality

Clause 20ZS provides that section 35 of the Ombudsman Act applies, other than subparagraph 35(1)(e) and (f) and subparagraphs 35(3)(b)(ia).

Section 35 imposes obligations on "officers" to keep certain information confidential. For the purposes of section 35, an "officer" may include the VET Student Loans Ombudsman, a Deputy Ombudsman, a person who is a member of the VET Student Loans Ombudsman's staff, a person (not a staff member or a Deputy Ombudsman) to whom the VET Student Loans Ombudsman has delegated his or her powers under section 34 or an authorised person.

Subsection 35(2) is an offence provision for the breach of which a penalty of 5 penalty units applies. Subject to section 35, it is an offence to make a record of, divulge or communicate to anyone, either directly or indirectly, information acquired as an officer which was obtained under the provisions of the Ombudsman Act. The offence applies while a person is an officer and after a person ceases to be an officer.

Despite subsection 35(2), under subparagraph 35(3)(b)(i) an officer may divulge, or communicate to another person, information provided by a VET student loan officer of a VET student loan scheme provider with the consent of the VET student loan principal executive officer. Under subparagraph 35(3)(b)(ii), an officer may also disclose information provided by a person other than a person who is a VET student loan officer with the consent of that person.

Under subsection 35(4), the offence provision in subsection 35(2) does not prevent the VET Student Loans Ombudsman from disclosing matters he or she thinks should be disclosed in a report under the Ombudsman Act, when setting out grounds for conclusions and recommendations made in the report. However, under subsection 35(5), such disclosure is prohibited if the Attorney-General provides a certificate to the VET Student Loans Ombudsman stating in writing that the disclosure of information or documents about a specified matter or matters included in a class of specified matters would, for a reason specified in the certificate, be contrary to the public interest. The maximum penalty for disclosing information or documents in contravention of subsection 35(5) of the Ombudsman Act is 2 years imprisonment.

Subsection 35(6) provides that subsection 35(5) does not prevent an officer, in the performance of duties, from disclosing the information to another officer, or the contents, copy or extract of such documents to another officer or, if returning the document, to the person lawfully entitled to it.

Before the VET Student Loans Ombudsman may provide any information or document to the Ombudsman of a State, subsection 35(7) obliges the VET Student Loans Ombudsman to be satisfied that a law of the State makes similar provisions with respect to the confidentiality of information to be acquired by the Ombudsman of the State. However, subsection 35(7) does not apply in relation to any information or document obtained by the VET Student Loans Ombudsman as a result of the exercise of a power delegated by the Ombudsman of the State to the VET Student Loans Ombudsman under subsection 34(7) of the Ombudsman Act.

Subsection 35(8) makes it clear that a person who is, or has been, an officer cannot be compelled to disclose information acquired through being, or having been, an officer. The provision applies to any proceedings before a court (whether or not the court exercises federal jurisdiction). It also applies to any proceedings before a person authorised by a law of the Commonwealth or of a State or Territory or by consent of the parties to hear, receive or examine evidence.

Section 35AA - Disclosure of information and documents to Integrity Commissioner

Clause 20ZS applies section 35AA of the Ombudsman Act.

This section applies where the VET Student Loans Ombudsman has investigated an action on his or her own motion and during the course of the investigation obtains information or a document that is or may be relevant to a corruption issue.

In these circumstances, the VET Student Loans Ombudsman is not prevented from disclosing the information, making a statement or giving the document to the Integrity Commissioner.

Section 35A - Disclosure of information by VET Student Loans Ombudsman

Clause 20ZS provides that section 35A of the Ombudsman Act applies, other than subsection 35A(3).

Subsection 35A(1) provides that, subject to sections 35B and 35C, nothing in the Ombudsman Act precludes the VET Student Loans Ombudsman from disclosing information or making a statement to a person, the public or a section of the public, about the performance of the functions of, or an investigation by, the VET Student Loans Ombudsman under the Ombudsman Act. However, this is subject to the VET Student Loans Ombudsman considering that it is in the interests of a person or a VET student loan scheme provider or in the public interest to disclose the information or make the statement.

Further, subsection 35A(2) provides that the VET Student Loans Ombudsman must not disclose information or make a statement if doing so is likely to interfere with carrying out an investigation or making a report under the Ombudsman Act.

By way of example, where the VET Student Loans Ombudsman consider that it is in the public interest to do so, and where it would not interfere with carrying out an investigation or making a report about an investigation, the VET Student Loans Ombudsman might disclose information to the Department or to the public about its findings, trends in complaints or broader issues that arise from investigations. The Department might publish such information on the Myskills website.

Section 35B - Disclosure of Australian Crime Commission (ACC) information

Clause 20ZS applies section 35B of the Ombudsman Act.

The purpose of section 35B is to restrict disclosure by the VET Student Loans Ombudsman of certain ACC information. If the Attorney-General gives the VET Student Loans Ombudsman a certificate stating that the disclosure of certain ACC information by one or more of the specified disclosure methods would be contrary to the public interest on certain specified grounds, then the VET Student Loans Ombudsman must not so disclose that ACC information.

Section 35C - Disclosure of Australian Commission for Law Enforcement Integrity (ACLEI) information

Clause 20ZS applies section 35C of the Ombudsman Act.

Section 35C is in large part identical to section 35B which prevents the disclosure by the VET Student Loans Ombudsman of certain ACC information. If the Attorney-General gives the VET Student Loans Ombudsman a certificate stating that the disclosure of certain ACLEI information by one or more of the specified disclosure methods would be contrary to the public interest on certain specified grounds, then the VET Student Loans Ombudsman must not so disclose that ACLEI information

Section 36 - Offences

Clause 20ZS applies section 36 of the Ombudsman Act.

This section lends force to the VET Student Loans Ombudsman's powers by making it an offence punishable on conviction by a fine of up to 10 penalty units or imprisonment for up to 3 months to refuse or fail to:

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appear before the VET Student Loans Ombudsman

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to be sworn or to make an affirmation

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to furnish or publish information

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to answer questions or produce a document or record

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to give a report,

when required to do so under the Ombudsman Act, unless the person has a reasonable excuse for not doing so. If a defendant mounts the latter defence, the defendant bears the evidential onus of proving the defence.

Section 37 - Protection from civil actions

Clause 20ZS applies section 37 of the Ombudsman Act.

This section facilitates the operation of the Ombudsman Act by providing immunity from civil suit for persons who, in good faith, complain to the VET Student Loans Ombudsman or make a statement or give a document or information to a person who is an officer within the meaning of section 35 of the Ombudsman Act, if the information or document is given for the purposes of the Ombudsman Act. The protection applies even if the statement was not made or the document or information was not given in response to a requirement made under section 9 or an order under section 11A of the Ombudsman Act.

Section 38 - Regulations

Clause 20ZS applies section 38 of the Ombudsman Act.

Section 38 provides that the Governor-General may make regulations prescribing matters necessary or convenient to be prescribed for carrying out or giving effect to the Ombudsman Act and in particular, prescribing matters in connection with fees and expenses of witnesses appearing before the VET Student Loans Ombudsman.

Schedule 2 Amendment of the Australian Research Council Act 2001

Summary

Schedule 2 amends the ARC Act to update appropriation amounts, by updating indexation to existing funding caps and inserting a new funding cap for the last year of the forward estimates (the financial year starting on 1 July 2019).

Detailed explanation

Australian Research Council Act 2001

Item 1

Division 1 of Part 7 of the ARC Act provides for financial assistance for approved research programs. Section 48 sets out the years to which this Division applies.

Item 1 inserts new paragraph (p) into subsection 48(2), the effect of which is to provide that Division 1 of Part 7 also applies to the financial year starting on 1 July 2019.

Item 2

Section 49 of the ARC Act specifies the annual funding caps for the purposes of Division 1 of Part 7 (financial assistance for approved research programmes).

Item 2 repeals paragraphs 49(q), (r) and (s) and inserts new paragraphs 49(q), (r), (s) and (t) so that approved annual funding caps must not exceed the following amounts:

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$744,363,000 for the financial year starting on 1 July 2016

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$746,852,000 for the financial year starting on 1 July 2017

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$736,179,000 for the financial year starting on 1 July 2018

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$747,812,000 for the financial year starting on 1 July 2019.