House of Representatives/Senate

Explanatory Memorandum

(Circulated by the authority of the Minister for Indigenous Affairs, Senator the Hon Nigel Scullion)

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

HIGHER EDUCATION SUPPORT LEGISLATION AMENDMENT (2016 MEASURES NO.1) BILL 2016

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

The Bill provides for two separate measures under the Higher Education Support Act 2003 (Higher Education Support Act). Schedule 1 amends the Higher Education Support Act to provide for grants to certain higher education providers to assist Indigenous students. Schedule 2 amends the Higher Education Support Act to allow the Secretary to be notified of Tax File Numbers (TFNs) for the purpose of administering student assistance under VET FEE-HELP, and amends the Income Tax Assessment Act 1936 to ensure Commonwealth officers are able to use and disclose TFNs under the Higher Education Support Act for the purposes of administering VET FEE-HELP.

Schedule 1 - Indigenous Student Assistance

The policy objective of the measures in Schedule 1 of the Bill is to address the current disparity between higher education outcomes of Indigenous students and the higher education outcomes of non-Indigenous students.

Over the last decade, there has been an increase in the number of Indigenous students in higher education award courses. However, the rates of completion of studies by Indigenous students still remains much lower compared to non-Indigenous higher education students.

Schedule 1 creates conditions where universities can capitalise on improvements in Indigenous students' access to higher education and ensure Indigenous students are not only enrolling, but also progressing and completing university awards, in greater numbers.

Schedule 1 creates a new Part 2-2A in the Higher Education Support Act, which enables grants to certain higher education providers to assist Indigenous students. Part 2-2A is similar in many respects to Part 2-3 of the Higher Education Support Act.

Schedule 1 also makes consequential amendments to other legislation to ensure that scholarships provided for under new Part 2-2A are treated in the same way as scholarships currently provided for under the Higher Education Support Act, particularly in relation to the calculation of income for social security purposes and eligibility for other forms of student assistance.

The amendments in Schedule 1 respond to the 2012 Review of Higher Education Access and Outcomes for Aboriginal and Torres Strait Islander People (2012 Review), which recommended Commonwealth scholarships for Indigenous students be amalgamated and supplementary Indigenous support programmes overall be reformed to ensure funding was flexible, simple to administer and had a greater focus on improving retention and completion rates (Recommendations 13 and 17). The Commonwealth worked closely with universities to build on these recommendations.

Schedule 2 - HELP Information Management

The main purpose of Schedule 2 is to enable the Secretary to access TFNs for students who obtain a VET FEE-HELP loan and to give the Secretary access to TFNs not previously provided to the Secretary.

A minor amendment to the Income Tax Assessment Act 1936 (Income Tax Assessment Act) is required to ensure that it captures the Higher Education Support Act in its entirety, including those parts of the Act providing for VET FEE-HELP assistance. This amendment is intended to ensure that those parts of the Higher Education Support Act providing for VET FEE-HELP assistance can permit the recording, use and communication of TFNs that would otherwise be prohibited under section 8WB of the Taxation Administration Act. Currently, section 202 of the Income Tax Assessment Act only extends to the Higher Education Support Act insofar as it extends to higher education. As the Higher Education Loan Program (HELP) also extends to students at vocational education providers, the scope of this provision should be broadened to encompass VET students.

Schedule 2 supports improved data on the HELP scheme and assists in its future administration by authorising the use and disclosure of information related to the administration of HELP debts, including TFNs, for that purpose. The Secretary will be able to disclose HESA information including TFNs to the Commissioner of Taxation only. All other HESA information may only be disclosed between HELP program Commonwealth officers without the inclusion of the TFN.

Providing the Secretary with TFNs enables more efficient, accurate and secure administration of HELP loans. Access to student TFNs allows, for example, the more efficient removal of a HELP debt in cases where it has been attributed to an incorrect TFN.

Human rights implications

Careful consideration was given to Australia's obligations under key human rights instruments throughout the development of the Bill, particularly those listed at section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Instruments that were considered in drafting the Bill relevantly include:

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the International Covenant on Economic, Social and Cultural Rights

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the International Covenant on Civil and Political Rights

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the International Convention on the Elimination of All Forms of Racial Discrimination

This Bill engages the following human rights:

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Right to education: Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR);

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Right to social security: Article 9 of the ICESCR;

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Prohibition on interference with privacy: Article 17 of the International Covenant on Civil and Political Rights (ICCPR);

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Protection from economic and social exploitation: Article 10 of the ICESCR; and

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Right of equality and non-discrimination: Article 2 of the ICESCR, Articles 2, 16 and 26 of the ICCPR and Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD).

To the extent that Schedule 1 of the Bill discriminates on the basis of race, it is intended as a 'special measure' within the meaning of Article 1(4) of the CERD.

Right to Education

The right to education is contained in Article 13 of the ICESCR, which recognises the 'right of everyone to education.'

Relevantly, Article 13(2)(c) of the ICESCR recognises that for the full realisation of the right to education, 'higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means ...'.

The United Nations Committee on Economic Social and Cultural Rights has stated that the right to education requires that functioning educational institutions and programmes must be available in sufficient quantity within a country. ^[1]

The changes to the Higher Education Support Act in Schedule 1 of the Bill enables the Commonwealth to make grants to certain higher education providers for the purposes of:

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assisting Indigenous students to undertake higher education; and

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increasing the number of Indigenous students enrolling in, progressing in and completing courses leading to higher education awards.

Assistance may include providing scholarships, academic support (including supplementary tuition), pastoral care, and strategies to accelerate improvements to Indigenous student outcomes or foster culturally-safe learning environment in higher education.

The arrangements provided for by Schedule 1 of the Bill will facilitate assistance to Indigenous students to access higher education and attain higher education awards.

Schedule 2 streamlines and improves the efficiency of transmission of data between the Department of Education and Training and the Australian Taxation Office, simplifying administration, reducing the potential for fraud, and improving data accuracy and reliability. By ensuring the integrity of HELP, Schedule 2 helps preserve access to higher education.

The Bill therefore advances the right to education.

Right to social security

The right to social security is contained in Article 9 of the ICESCR, which recognises 'the right of everyone to social security, including social insurance'. This could also include support for students to access tertiary education.

Schedule 1 amends the Social Security Act 1991 (Social Security Act) and the Veterans' Entitlements Act 1986 (Veterans' Entitlements Act) to ensure that a scholarship provided for under Part 2-2A of the Higher Education Support Act and specified by the Secretary under subsection 8(8AAA) of the Social Security Act are not income for the purposes of the Social Security Act or the Veterans' Entitlements Act.

Schedule 1 of the Bill also amends the Social Security Act and the Student Assistance Act 1973 to ensure that a person in receipt of a scholarship provided for under Part 2-2A of the Higher Education Support Act and specified by the Secretary by legislative instrument does not qualify for certain payments or benefits. This is consistent with existing rules in relation to a person in receipt of scholarships provided for under Part 2-4 of the Higher Education Support Act.

Schedule 2 of the Bill seeks to ensure the integrity of HELP, thereby protecting the sustainability of financial support to students for higher education.

These measures protect a person's entitlement to social security payments.

The Bill therefore promotes the right to social security.

Prohibition on interference with privacy

The prohibition on interference with privacy is contained in Article 17 of the ICCPR, which prohibits the unlawful or arbitrary interference with a person's privacy. Article 17 provides that all persons have the right to the protection of the law against such interference.

While the United Nations Human Rights Committee states that an arbitrary interference with privacy extends to interference provided for under the law, it also provides that where the interference is reasonable in the circumstances and in accordance with the aims and objectives of the ICCPR, the interference will not be considered arbitrary.

The Bill engages with the prohibition on interference with privacy in two ways. Firstly, Schedule 1 includes amendments which provide for the use and disclosure of information in relation to the administration of grants (including grants for scholarships) under new Part 2-2A of the Higher Education Support Act. Secondly, Schedule 2 allows the Secretary to access students' TFNs to support data improvement and more effective administration of HELP loans.

Schedule 1 of the Bill amends section 195 of the Social Security (Administration) Act 1999 (Administration Act) to ensure that the Secretary can require a person to give the Department of Human Services or the Department of Social Services information about the amount or value of scholarships provided for under Part 2-2A of the Higher Education Support Act and specified by the Secretary by legislative instrument in relation to a course of study being undertaken by the person. This arrangement is consistent with the Secretary's power to obtain information about the amount or value of scholarships provided for under Part 2-4 of the Higher Education Support Act.

This amendment to section 195 of the Administration Act pursues the legitimate objective of ensuring compliance with social security law (including verifying claims for social security payments), and will be subject to the existing protections under this section (including that irrelevant information be destroyed within 13 weeks of being provided to the Secretary).

Schedule 1 also amends section 202 of the Administration Act to provide that a person may obtain, make a record, use or disclose protected information (as defined in section 23 of the Social Security Act) for the purposes of the administration of scholarships that are provided for under Part 2-2A of the Higher Education Support Act and specified by the Secretary by legislative instrument. This is necessary for the pursuit of the legitimate objective of ensuring that these scholarships can be administered effectively. This arrangement is no wider than necessary as it is consistent with existing arrangements in the Administration Act for scholarships provided for under Part 2-4 of the Higher Education Support Act.

To the extent that amendments to sections 195 and 202 of the Administration Act limit the right to privacy, these arrangements are reasonable, necessary and proportionate. The amendments are restricted to clearly specified purposes to ensure a person's privacy is not arbitrarily interfered with. Furthermore, these arrangements are consistent with existing arrangements for the administration of scholarships and will enable effective administration of scholarships and other social security payments.

Schedule 1 also amends the Higher Education Support Act to protect the use and disclosure of personal information (within the meaning of section 179-5 of the Higher Education Support Act) by making it an offence for a person that receives information about grants under Part 2-2A to use or disclose information that is personal information unless it is for a purpose permitted under the Higher Education Support Act. This amendment ensures that rules in the Higher Education Support Act about the use and disclosure of information are the same for grants under Part 2-2A and grants under Part 2-3, and serves to protect a person's privacy.

Schedule 2 enables the Secretary to access TFNs for students who obtain a VET FEE-HELP loan, and gives the Secretary access to TFNs not previously provided to the Secretary. While there may be concerns that these amendments have the potential to compromise student and debtor privacy, this data sharing will only be allowed in specific circumstances, between the specified entities, and for confined and specific purposes as defined in the Bill. The change to enable the Department of Education and Training to access TFNs for VET FEE-HELP students and for students who disclosed their TFNs prior to the Secretary being allowed to access them, is merely an extension of current processes that apply to new students who access all other HELP loans, and for other government programs such as the Trade Support Loan program.

The collection of TFNs for VET FEE-HELP students, and for students who previously disclosed their TFN could be seen as limiting a person's right to privacy. However, this information is collected for the legitimate objective of administering HELP. All parties with access to this data are required to use appropriate safeguards to ensure the confidentiality of this information. Access to TFNs will be limited to Commonwealth officers with a legitimate need to access and use TFNs for HELP debt administration. New provisions authorising the disclosure of TFNs will only authorise the disclosure of TFNs from the Secretary to the Commissioner of Taxation. All other disclosure or use of HESA information will be limited to HELP program Commonwealth officers who will be either delegates of the Secretary or Commissioner, or officers specified by the Minister by legislative instrument.

To the extent that Schedule 2 limits the right to privacy, the amendments are reasonable, necessary and proportionate. This is because these amendments preserve the integrity of HELP and provide for protections to ensure a person's privacy is not arbitrarily interfered with.

The Bill is compatible with the prohibition on interference with privacy as it either protects the right to privacy, or to the extent it limits the right to privacy, the limitations are reasonable, necessary and proportionate.

Protection from economic and social exploitation

The right of young persons to be protected from economic and social exploitation is recognised in Article 10 of the ICESCR.

The provision in Schedule 2 that enables the Secretary to be provided with TFNs is a necessary student protection, as it will enable the Secretary to remove any HELP debts that have been incorrectly or unfairly incurred. As these HELP debts may have been incurred prior to the commencement of this provision, it is important that the Secretary be given access to previously disclosed TFNs in order for HELP debt management to be effective and efficient. The Bill therefore promotes the protection of young persons from economic and social exploitation.

Right of equality and non-discrimination

The right of equality and non-discrimination is contained in Articles 2, 16 and 26 of the ICCPR, Article 2 of the ICESCR and Article 5 of the CERD.

The right of equality and non-discrimination recognises that all human beings have the right to be treated equally and to not be discriminated against.

'Special measures'

To the extent that measures in relation to Indigenous Student Assistance in Schedule 1 of the Bill will mean Indigenous persons are provided with a different level of assistance to access higher education than other persons, the Bill is intended to be a 'special measure' within the meaning of Article 1(4) of the CERD and subsection 8(1) of the Racial Discrimination Act 1975.

'Special measures' are an exception to the general prohibition on racial discrimination, and are designed to 'secure to disadvantaged groups the full and equal enjoyment of human rights and fundamental freedoms'. ^[2] For a measure to be characterised as a 'special measure' it must:

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Be for a particular group or individuals;

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Be taken for the sole purpose of securing the adequate advancement of those groups or individuals;

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Be 'necessary'; and

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Not continue after its objectives have been achieved.

The arrangements provided for in Schedule 1 are for Indigenous students. The Bill enables grants to higher education providers to provide assistance specifically to Indigenous students.

This measure has been taken for the sole purpose of securing the adequate advancement of Indigenous peoples to ensure their equal enjoyment or exercise of human rights, in particular the right to education and right of equality and non-discrimination.

Data available at the time the Schedule 1 amendments were developed indicates that Indigenous peoples do not access higher education or complete higher education at a rate equivalent to non-Indigenous peoples.

The United Nations Committee on Economic Social and Cultural Rights has expressed concern about disparities in access to the educational system for Indigenous peoples, including those living in remote areas, compared with the rest of the population, as well as the deficient quality of education provided to persons living in remote areas, in particular Indigenous peoples. ^[3]

Schedule 1 facilitates the provision of targeted assistance to Indigenous students and allows them to better access, progress in and complete higher education awards in order to address the disparity in access to, and completion of, higher education as exists between Indigenous persons and other persons.

These measures are reasonably necessary to secure the equal enjoyment of the right to education and the right of equality and non-discrimination by Indigenous persons.

The 2012 Review recommended Commonwealth scholarships for Indigenous students be amalgamated and supplementary Indigenous support programmes overall be reformed to ensure funding was flexible, simple to administer and had a greater focus on improving retention and completion rates (Recommendations 13 and 17).

The Commonwealth worked closely with universities, including with Indigenous staff from universities across Australia and the National Aboriginal and Torres Strait Islander Higher Education Consortium, to develop the reforms contained in the Bill.

Although the number of Indigenous persons accessing higher education is increasing, the arrangements provided for in Schedule 1 of the Bill are necessary to capitalise on improvements in Indigenous access to higher education and ensure students are not only enrolling, but also progressing and completing university awards, in greater numbers.

The Schedule 1 arrangements are appropriate, adapted and proportionate as they will facilitate the consolidation of existing higher education programmes which are known to be effective but could be improved. The reforms streamline and increase the capacity of universities to tailor assistance to the individual needs of Indigenous students.

The Schedule 1 arrangements give the Minister the power to determine the maximum payments for grants in respect of a year or multiple years. Annual reporting of expenditure, assistance and strategies will be required under the Indigenous Student Assistance Grants Guidelines. Assistance offered by universities under the Indigenous Student Success Programme will be monitored after twelve months and reviewed after two years to ensure that assistance has not diminished as a result of the flexibility in the Indigenous Student Success Programme. If necessary, the Indigenous Student Assistance Grants Guidelines will be revised in 2018 to ensure appropriate assistance is being offered to Indigenous students. This will ensure that that there will be a continual evaluation of the level of assistance that needs to be provided until the objective of the measures are achieved.

The Schedule 1 arrangements for Indigenous Student Assistance meet the criteria to be characterised as a special measure.

Conclusion

This Bill is compatible with human rights.

Minister for Indigenous Affairs, Senator the Hon Nigel Scullion