House of Representatives

Explanatory Memorandum

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

Statement of Compatibility with Human Rights

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

EDUCATION AND OTHER LEGISLATION AMENDMENT BILL (NO. 1) 2017

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 Education and Other Legislation Amendment Bill (No. 1) 2017 consists of two schedules. The first schedule amends the Ombudsman Act 1976 ( Ombudsman Act ) to insert a new Part IIE establishing the office of the VET Student Loans Ombudsman. It also makes consequential amendments to the Ombudsman Act and the VET Student Loans Act 2016 ( VET Student Loans Act ). The second schedule amends the Australian Research Council Act 2001 ( ARC Act ) to update indexation against appropriation funding caps for existing legislated amounts and includes an additional forward estimate amount.

VET Student Loans Ombudsman

Vocational education and training ( VET ) is central to Australia's economic growth, business opportunities and employment outcomes for students. Income contingent loans support Australians to access higher level VET qualifications.

The Government introduced the VET Student Loans Bill 2016 and associated Bills in the 2016 Spring sittings. The VET Student Loans Act and associated Acts received Royal Assent on 7 December 2016.

The VET Student Loans Act established the VET Student Loans program, a new program for income contingent loans from the Government to students engaged in higher level VET, to assist students with payment of their tuition fees. The new VET student loans program replaced the VET FEE-HELP assistance scheme (which operated under Schedule 1A to the Higher Education Support Act 2003 (the HESA )), from the start of 2017.

In her second reading speech introducing the VET Student Loans Bills, the Assistant Minister for Vocational Education and Training stated that the Government would establish a VET Student Loans Ombudsman.

In its report of the inquiry into the VET Student Loans Bill, the Senate Standing Committee on Education and Employment recommended that "the Government establish a VET Ombudsman and work with key stakeholders to ensure that the Ombudsman operates in a way that is fit for purpose".

The Government subsequently introduced amendments to the VET Student Loans Bill which:

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enabled the Minister to approve, by legislative instrument, an external dispute resolution scheme providing for the investigation and resolution of disputes relating to VET student loans and VET FEE-HELP assistance, and compliance by course providers with the VET Student Loans Act and the HESA (Division 4A of Part 4 of the VET Student Loans Act);

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required approved course providers under the VET Student Loans Act to be members of an approved external dispute resolution scheme (paragraph 25(2)(h)), to comply with the scheme (section 42C), and to cooperate with the operator of the scheme (paragraph 46(e));

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enable information collected under the VET Student Loans Act to be collected, used and disclosed for the purposes of an approved external dispute resolution scheme (paragraphs 92(1)(d) and 93(2)(e)).

Schedule 1 of this Bill amends the Ombudsman Act to extend the jurisdiction of the Commonwealth Ombudsman to establish a VET Student Loans Ombudsman.

The VET Student Loans Ombudsman will:

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conduct investigations and make recommendations and make other reports, in relation 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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develop and promote, and review from time to time, 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 under the Ombudsman Act;

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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 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 administering the Ombudsman Act about the operations of the VET Student Loans Ombudsman.

Schedule 1 also introduces other consequential amendments to the Ombudsman Act and the VET Student Loans Act.

Australian Research Council Act 2001

Schedule 2 amends the ARC Act to update indexation against appropriation funding caps for existing legislated amounts and include an additional forward estimate amount for the financial year commencing on 1 July 2019.

The amendments in Schedule 2 support the financial assistance for approved research programs administered by the Australian Research Council (ARC). The ARC Act provides a maximum cap for financial assistance for approved research programs. These programs fund the high-quality research Australia needs to address the great challenges of our time, to improve the quality of people's lives, to support Australian businesses to become more innovative and to remain competitive in the global knowledge economy.

The ARC supports the highest quality fundamental and applied research and research training through funding schemes under the National Competitive Grants Programs (NCGP). The NCGP comprises two main programs-Discovery and Linkage. Funding awarded under the NCGP:

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is allocated on the basis of a competitive peer review process involving national and international assessors

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supports research across all disciplines (with the exception of a range of medical and dental research).

Analysis of human rights implications

VET Student Loans Ombudsman

The Bill engages the following human rights:

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the right to privacy - Article 17 of the International Covenant on Civil and Political Rights (ICCPR)

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the right to a fair and public hearing - Article 14 of the ICCPR

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the right to be presumed innocent - Article 14 of the ICCPR.

Right to Privacy

The Bill engages the right to privacy which is set out in Article 17 of the ICCPR. Article 17 provides that no one shall be subjected to arbitrary or unlawful interference with their privacy, family, home or correspondence, nor to unlawful attacks on their honour and reputation.

The Bill engages the right to privacy through clause 20ZS applying certain existing powers of the Commonwealth Ombudsman to the VET Student Loans Ombudsman in conducting investigations. These include, at section 7A undertaking preliminary inquiries, at section 8 undertaking investigations, at section 9 obtaining information and documents, at section 13 examining witnesses and at section 14 entering premises. Under these provisions the VET Student Loans Ombudsman has the power to require the provision of information, documents or records relevant to an investigation being conducted by the VET Student Loans Ombudsman. The information, documents and records the VET Student Loans Ombudsman obtains under these sections might contain personal information of VET students or VET student loans officers.

The right to privacy under Article 17 can be permissibly limited in order to achieve a legitimate objective and where the limitations are lawful and not arbitrary. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the particular circumstances.

In this case, the legitimate aim is to enable the VET Student Loans Ombudsman to obtain all relevant information and documents necessary in order to undertake investigations into the actions of VET student loans scheme providers. This is critical to be able to protect the rights of VET students and to ensure the accountability of VET student loans scheme providers, and is consistent with the Ombudsman's existing powers across other sectors.

The VET Student Loans Ombudsman's powers of investigation are not arbitrary or unlawful. Under section 9, the documents or information must be relevant to the investigation for the VET Student Loans Ombudsman to be able to require their provision. Subclause 20ZS(3) clarifies that the VET Student Loans Ombudsman's power to enter the premises of a VET student loan officer under section 14 apply only 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. These powers are not intended to extend to other premises occupied by the VET student loans officers - such as a personal residence. Moreover, under section 35 of the Ombudsman Act, the VET Student Loans Ombudsman and staff are required to observe the confidentiality of information obtained by the VET Student Loans Ombudsman in the course of carrying out his or her functions. Unauthorised communication or divulgence of such confidential information is an offence.

The Bill also contains other protections of the right to privacy - these include under clause 20ZU, when referring to an investigation in a report, the VET Student Loans Ombudsman is prohibited from disclosing the name of a complainant who is an individual, or any other matter that would enable such an individual to be identified, unless it is fair and reasonable in all the circumstances to do so. Further, under clause 20ZT the VET Student Loans Ombudsman is required to comply with the rules of procedural fairness when exercising a power under the Ombudsman Act.

The Bill is compatible with the right to privacy. To the extent the right is limited, the limitation is reasonable and proportionate.

Right to a Fair and Public Hearing

Article 14 of the ICCPR ensures that everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

The Bill engages the right to a fair and public hearing as under subsection 8(4) of the Ombudsman Act (which is incorporated into the VET Student Loans Ombudsman scheme by clause 20ZS), it is not necessary for the complainant or any other person to be afforded an opportunity to appear before the Ombudsman or any other person in connection with an investigation.

However, this is tempered by subsection 8(5) which provides that the VET Student Loans Ombudsman should not set out critical opinions (whether expressly or impliedly) about a VET student loan scheme provider or another person, in a report, without first affording the VET student loans principal executive officer of the provider or the person (as the case may be) the opportunity to appear before the Ombudsman or an authorised person and make submissions either orally or in writing. Moreover, under subsection 8(7), where a person appears before the VET Student Loans Ombudsman or an authorised person, they have the right to be represented by another person. Further under clause 20ZT the VET Student Loans Ombudsman is required to comply with the rules of procedural fairness when exercising a power under the Ombudsman Act.

In addition the Bill contains other protections, for example the provisions setting out the Ombudsman's powers of investigation, such as section 7A (preliminary inquiries), section 8 (investigations), and section 9 (power to obtain information and documents), includes protection against self-incrimination. Under clause 20ZZ a person is neither liable to a proceeding, nor subject to a liability under an enactment merely because the person, in good faith and in relation to the VET Student Loans Ombudsman's functions or powers gives information, a document or other record to the VET Student Loans Ombudsman (other than in accordance with a requirement under section 9).

The Bill is compatible with the right to a fair and public hearing. To the extent the right is limited, the limitation is reasonable and proportionate.

Right to be Presumed Innocent

Article 14 of the ICCPR requires that in the determination of any criminal charge, everyone shall be entitled to a set of minimum guarantees and that anyone convicted will have the right to review and compensation if the conviction is not upheld. Article 14 of the ICCPR also requires that anyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to the law.

The Bill does not create any new offences. However, clause 20ZS applies several existing offences set out at section 36 of the Ombudsman Act to the VET Student Loans Ombudsman scheme. Under section 36, when required to do so under the Ombudsman Act, it is an offence to refuse or fail to:

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attend before the Ombudsman;

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be sworn or make an affirmation;

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furnish or publish information;

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answer a question;

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produce a document or record; or

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give a report.

The penalty for an offence under section 36 is imprisonment for up to 3 months or a fine of up to 10 penalty units.

The incorporation of section 36 into the VET Student Loans Ombudsman scheme is compatible with the right to be presumed innocent. Subsection 36(2A) provides that it is a defence where the person has a reasonable excuse for refusing or failing to do any of the above actions (although the defendant bears the evidentiary burden).

Moreover, these offences are proportionate to the value of encouraging people to cooperate with the VET Student Loans Ombudsman in his or her investigations. This provides students who believe they have been adversely affected by the behaviour of VET student loan scheme providers with an independent third party to investigate their concerns effectively and impartially.

Under section 35 of the Ombudsman Act, the VET Student Loans Ombudsman and members of staff are required to observe the confidentiality of information obtained by the VET Student Loan Ombudsman in the course of carrying out his or her functions. Unauthorised communication or divulgence of such confidential information attracts a penalty of up to 5 penalty units. Unauthorised communication or divulgence of information about which the Attorney-General has issued a certificate certifying that communication or divulgence of such information would be contrary to the public interest attracts a penalty of up to 2 years imprisonment.

The incorporation of section 35 into the VET Student Loans Ombudsman scheme is compatible with the right to be presumed innocent. Section 35 clarifies the circumstances in which communication or divulgence of such information would be permitted and these offences are proportionate to the value of protecting the integrity of confidential information and public trust in the VET Student Loans Ombudsman.

In addition the Bill contains other protections, for example under section 37 of the Ombudsman Act (applied by clause 20ZS) there is a protection from civil action for a person in respect of loss, damage or injury suffered by another person by reason of the first person making a complaint to the Ombudsman or providing information or documents to the Ombudsman. Further the provisions setting out the Ombudsman's powers of investigation, such as under section 7A (preliminary inquiries), section 8 (investigations), and section 9 (power to obtain information and documents), includes protections against self-incrimination.

Under clause 20ZZ a person is neither liable to a proceeding, not subject to a liability under an enactment merely because the person, in good faith and in relation to the VET Student Loans Ombudsman's functions or powers gives information, a document or other record to the VET Student Loans Ombudsman (other than in accordance with a requirement under section 9).

The Bill is compatible with the right to be presumed innocent.

Australian Research Council Act 2001

The amendments to the ARC Act do not detrimentally engage human rights.

Conclusion

The Bill is compatible with human rights because, to the extent that it may limit human rights, the limitations are reasonable, necessary and proportionate.