Explanatory Memorandum
(Circulated by the authority of the Minister for Education, the Honourable Dan Tehan MP)Schedule 3 - Other amendments
Summary
Transforming the Collection of Student Information (TCSI)
Australian higher education providers and vocational education and training providers (education providers) currently supply a broad range of data to the Department of Education ( Education ) and the Department of Employment, Skills, Small and Family Business ( Employment ) to enable the Commonwealth to administer HESA and the VSL Act. This data is managed under section 19-70 and Part 5-4 of HESA, clauses 23 and 24 and Division 14 of Schedule 1A to HESA, and sections 53 and 54 and Part 9 of the VSL Act.
Education providers also supply data to the Department of Human Services ( Human Services ). Human Services uses the data to determine the ongoing eligibility of students for income support payments, such as Youth Allowance (student), Austudy and ABSTUDY.
There is some duplication in data supplied by education providers to Education, Employment and Human Services. The Government has agreed to rationalise the reporting requirements so that education providers report student data once through one mechanism and this data is then accessed by Education, Employment and Human Services as needed for the purposes of administering the laws and programs for which they are responsible.
The legal consequence of the process by which an education provider satisfies its reporting requirements under the social security law, HESA and the VSL Act by providing the information once into a central data repository, is that much of the same information becomes subject to multiple information management and protection regimes under those laws. There is therefore a need to ensure that the use and disclosure of the information in that central data repository is authorised by those laws for the various intended uses.
In relation to information collected under or for the purposes of the social security law - so-called "protected information" - the intention is to utilise the existing mechanisms in the social security law to authorise Education and Employment to use and disclose that information for purposes relating to the administration of HESA and the VSL Act - see, for example, subparagraph 208(1)(b)(i) of the Social Security (Administration) Act 1999 and subparagraph 343(1)(b)(i) of the Student Assistance Act 1973.
However, the current information protection provisions in HESA and the VSL Act do not permit the use and disclosure of personal information collected under or for the purposes of those Acts to be disclosed to, and used by, Human Services for the purposes of administering the social security law or developing or implementing related welfare policy.
Other minor information reporting amendments
The VSL Act contains provisions that make it an offence to disclose VET information in certain circumstances (sections 99 and 100). Those provisions also outline circumstances where the offence will not apply, including where the disclosure is authorised by an enactment of the Commonwealth, a State or a Territory. As a matter of best practice, Education and Employment will often seek the individual's consent prior to any use or disclosure of that individual's information. The offence provisions need to be amended to recognise the capacity for an individual to provide consent for the use or disclosure of their information.
Similarly, section 179-10 of HESA and clause 73 in Schedule 1A to HESA provide that an officer commits an offence if the officer discloses (or makes a copy or other record of) personal information that was acquired in the course of official employment, and the disclosure, copy or record was made outside of the course of official employment. Unlike the VSL Act, however, Division 179 and clause 73 in Schedule 1A to HESA do not outline circumstances where the offence would not apply. HESA does authorise certain uses and disclosures under Division 180, but it does not authorise the use and disclosure of HESA information where it is authorised under another enactment or where the individual provided consent to the use and disclosure of their personal information.
Minor technical updates and corrections
Amendments to HESA will also be made to implement technical and minor updates to correct higher education provider names and amend definitions.
Detailed explanation
Part 1 - Amendments commencing 1 January 2019
Higher Education Support Legislation Amendment (Student Loan Sustainability) Act 2018
Item 1 - Item 2 of Schedule 4
Subsection 137-10(2) of HESA was repealed and replaced on 1 January 2019 by Part 1 of Schedule 4 to the Student Loan Sustainability Act. Item 2 of Schedule 4 of that Act is an application provision for the amendment to subsection 137-10(2), and it currently provides:
The amendments of section 137-10 of the Higher Education Support Act 2003 made by Part 1 of this Schedule apply in relation to a loan made on or after 1 January 2019.
The reference in that item to "a loan made on or after 1 January 2019" is an error. Under subsection 137-10(3) of HESA, a person incurs a FEE-HELP debt in relation to a unit of study immediately after the census date for the unit. The amendments made to subsection 137-10(2) made by Part 1 of Schedule 4 to the Student Loan Sustainability Act affect the amount of FEE-HELP debt that a person incurs in relation to a unit of study on the census date of a unit. Accordingly, the application provision in Item 2 of Schedule 4 of the Student Loan Sustainability Act should refer to the unit of study and its census date.
Consequently, item 1 will replace the words "a loan made" in Item 2 of Schedule 4 of the Student Loan Sustainability Act with the words "a unit of study if the census date for the unit is".
Part 2 - Amendments commencing on Royal Assent
Higher Education Support Act 2003
Items 2, 3, 4, 5 and 6 - Subsection 16-15(1) (table) and subsection 16-20(1) (table)
Subsection 16-15(1) of HESA lists certain higher education providers as Table A providers; subsection 16-20(1) lists certain higher education providers as Table B providers. A number of these providers have changed their names over recent years. Although the name changes has not affected these providers' status as higher education providers under HESA (see e.g. section 25B of the Acts Interpretation Act 1901), the opportunity is being taken to update their names in sections 16-15 and 16-20.
Items 7, 8, 9 and 10 - Consent and lawful authority exceptions to offences of using or disclosing personal information
Section 179-10 of HESA creates an offence for an officer to disclose, copy or make a record of personal information collected by an officer in their course of their official employment, except in the course of the officer's official employment. The offence currently has no other express exceptions [1] .
Item 10 will insert subsections (2), (3) and (4) in the section to provide further exceptions to the offence.
Subsection 179-10(2) provides an exception if the person to whom the personal information relates has consented to the disclosure, or the making of the copy or record.
As a matter of best practice, the Commonwealth will often seek the individual's consent prior to any use or disclosure of that individual's information where possible.
Subsection 179-10(2) recognises situations where an individual (whose information is proposed for use or disclosure) has provided consent for that use or disclosure, by making that consent an exception to the offence under subsection 179-10(1).
Subsection 179-10(3) provides an exception if the disclosure, or the making of the copy or record, is authorised or required by a law of the Commonwealth, such as the authorising provisions under Division 180 of HESA.
Subsection 179-10(4) provides an exception if the disclosure, or the making of the copy or record, is authorised or required by a law of a State or Territory, provided that the disclosure, or the making of the copy or record relates to the administration, regulation or funding of education; or is specified in the Administration Guidelines for the purposes of paragraph 179-10(4)(b).
New subsections 179-10(3) and (4) align section 179-10 with the more modern information protection provision in section 99 of the VSL Act.
Item 7 will amend the description of Division 179 of HESA in section 179-1 to reflect the amendments to section 179-10; items 8 and 9 have the effect of making the current content of section 179-10 a subsection (1), to account for the insertion of new subsections (2) to (4) by item 14.
Item 11 - Paragraph 179-15(4)(a)
Subsection 179-15(4) defines the meaning of official employment for the purposes of HESA. The term is used throughout Divisions 179 and 180 of HESA (which relate to information management) to set out generally the purpose for which information collected or created for the purposes of HESA can be used or disclosed - that is to say, in the course of an officer's official employment.
Item 11 will amend paragraph 179-15(4)(a), which defines what is meant by the official employment of a Commonwealth officer, to clarify that the official employment of a Commonwealth officer includes performing functions and duties, and exercising powers under, the VSL Act.
This corrects an oversight created when the VSL program replaced the VET FEE-HELP scheme under Schedule 1A to HESA. The VET FEE-HELP program was part of the HELP, and information collected or created for the purposes of administering VET FEE-HELP was simply part of the information collected or created for the purposes of the HELP. When the VSL program was established, it was administered in practice as part of the HELP, and the VSL Act enables Commonwealth officers to use and disclose information collected or created for the VSL program for administration of HELP (see section 91 of the VSL Act).
Item 12 - Disclosure of certain information to certain agencies
Item 12 will give effect to the TCSI data sharing arrangements by allowing the Secretary to authorise the disclosure of HESA information to an agency administered by a Minister that administers any of the following Act:
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- the Human Services (Centrelink) Act 1997;
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- the Social Security Act 1991;
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- the Student Assistance Act 1973;
for the purposes of that agency.
Consequently, an officer of the recipient agency - for example, the Department of Human Services - will be authorised to use HESA information for the purposes of the relevant agency.
For example, the Secretary will be able to pass HESA information to the Department of Human Services where that information will be of use in the administration of the social security law, being one of the functions of that agency. This power will not rely on the exercise of any power by the Department of Human Services under the social security law to 'collect' the information.
The Secretary will also be authorised to disclose HESA information to an agency administered by a Minister that administers a provision of Commonwealth law specified in the Administration Guidelines for the purposes of exercising power or performing functions or duties of that agency.
Items 13, 14, 15 and 16 - At the end of clause 71 of Schedule 1A
These items amend clauses 71 and 73 of Schedule 1A to HESA in the same ways as items 7, 8, 9 and 10 amend sections 179-1 and 179-10 of HESA.
Items 17 and 18 - Definitions
Items 17 and 18 will make minor amendments to subclause 1(1) of Schedule 1 to HESA (the Dictionary), to amend or repeal definitions.
Item 17 repeals the term Australian Qualifications Framework Register , which is no longer necessary. The term appeared in a number of other definitions which were repealed in 2012.
Item 18 will replace paragraph (c) of the definition of higher education award , so that it refers to an award offered or conferred by a higher education provider, other than an award offered or conferred for completing a VET course. Paragraph (c) of the definition currently refers to "any other award specified as a higher education award in the Australian Qualifications Framework [AQF]". The AQF no longer refers to higher education awards, and classifies educational qualifications by a different methodology (Levels 1 to 10).
VET Student Loans Act 2016
Items 19 and 20 - At the end of subsection 93(2)
Items 19 and 20 give effect to the TCSI data sharing arrangements by allowing the Secretary to disclose VET information to an agency administered by a Minister that administers any of the following Acts:
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- the Human Services (Centrelink) Act 1997;
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- the Social Security Act 1991;
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- the Student Assistance Act 1973;
for the purposes of that agency.
Consequently, an officer of the recipient agency will be authorised to use VET information for the permitted purposes.
The Secretary will be authorised to disclose VET information to an agency administered by a Minister that administers a provision of Commonwealth law specified in the rules for the purposes of exercising power or performing functions or duties of that agency.
Items 21, 22 and 23 - Consent exception to offence of using or disclosing personal information
Section 99 of the VSL Act creates an offence for a person who is or has been an officer to disclose or use personal information obtained or generated by them. Section 100 creates an offence for a person to use or disclose personal information that was disclosed to an agency, person or body under section 95 of the VSL Act other than for the purposes for which it was disclosed to the agency etc. It is a defence to either offence if the use or disclosure was permitted under law.
Items 21, 22 and 23 will insert provisions in sections 99 and 100 to provide a further defence to the offences if the person to whom the personal information relates has consented to the disclosure, or the making of the copy or record. This will bring the provisions into line with the equivalent provisions in HESA (see items 7 to 10 and 13 to 16 above).
As a matter of best practice, the Commonwealth will often seek the individual's consent prior to any use or disclosure of that individual's information where possible. New subsections 99(3), 100(2A) and 100(3) recognise situations where an individual (whose information is proposed for use or disclosure) has provided consent for that use or disclosure, by making that consent an exception to the offence under subsections 99(1), 100(1) and 100(3).
Item 24 - Application of amendments
Item 24 is an application provision that makes it clear that the amendments to the information management provisions in HESA and the VSL Act made by items 7 to 16 and 19 to 23 apply to disclosure, records and copies of information whether the information was obtained before or after commencement of those amendments.