House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Employment, Skills, Small and Family Business, Senator the Hon Michaelia Cash)

Schedule 2 - Information sharing

Summary

141. Schedule 2 of the Bill includes amendments to improve information sharing in relation to information collected by NCVER under the Data Provision Requirements. These amendments support the operation of the National VET Data Policy that was endorsed in 2017 by the Ministerial Council that is available on the Department's website (in February 2020 the policy could be accessed at
https://www.employment.gov.au/national-vet-data-policy-0 ).

National Vocational Education and Training Regulator Act 2011

Item 1 - Section 3

142. This item inserts a definition of information safeguard rules into section 3 of the NVETR Act. Information safeguard rules will be defined as having the meaning given by section 214A (see item 3 of Schedule 2). Information safeguard rules have been included in the Bill so that the Minister can, as the need arises, set out additional safeguards, in a legislative instrument, in relation to the disclosure of the information (which may include personal information).

Item 2 - At the end of Subdivision B of Division 2 of Part 9

143. Item 2 of Schedule 2 inserts new section 210A into the NVETR Act, which relates to the disclosure of information by NCVER. NCVER is a company registered under the Corporations Act 2001. NCVER was established in 1981 by Commonwealth, State and Territory Ministers responsible for VET. It is responsible for collecting, managing, analysing and communicating research and statistics about the Australian VET sector.This new section will facilitate data flows from NCVER to support more informed policy development and funding allocation for VET.

New section 210A

144. New subsection 210A(1) provides that NCVER may disclose information collected in accordance with the Data Provision Requirements, or any equivalent requirements in a non-referring State to the Department, another Commonwealth authority, to a State or Territory authority (other than a registered training organisation) that deals with, or has responsibility for, matters relating to VET or a VET regulator for the purposes of that body. By implication, where NCVER can disclose the information to the bodies listed in new subsection 210A(1), those bodies are authorised to collect that information, including where that information is sensitive information within the meaning of the Privacy Act. For example, if NCVER discloses information to the Department, the Department is authorised to collect that information from NCVER.

145. New subsection 210A(1) provides that NCVER may disclose information collected in accordance with the Data Provision Requirements, or any equivalent requirements in a non-referring State.

146. Data Provision Requirements have been determined by the Minister in a legislative instrument made pursuant to section 187 of the NVETR Act. Under the Data Provision Requirements, an RTO is required by law to collect a student's information and disclose that information to NCVER as part of the National VET Provider Collection.

147. The reference to 'any equivalent requirements in a non-referring State' is a reference to the requirements in the non-referring States, which are Victoria and Western Australia. The Bill does not expressly refer to the name of the legislation or the relevant provisions in the Victorian or Western Australian laws (the non-referring States) that contain equivalent requirements to the Data Provision Requirements since the name or the relevant sections of that legislation may change.

148. Currently, in Victoria, condition 6 of the AQTF 2010 Essential Conditions and Standards for Continuing Registration requires RTOs to obtain and submit data according to requirements and subject to applicable exemptions that are set out in the National VET Provider Collection Data Requirements Policy. The AQTF 2010 Essential Conditions and Standards for Continuing Registration as at February 2020 could be accessed at
https://www.vrqa.vic.gov.au/Documents/VETEssecondstandrdscont.pdf .

149. In Western Australia, paragraph 3(2)(a) of the WA Regulations provides that one of the mandatory conditions that applies to a Western Australian RTO's registration is that the provider must comply with the registration standards. Registration standards are defined as 'the Standards for NVR Registered Training Organisations made under the Commonwealth Act section 185'. Clause 7.5 of the Standards for NVR Registered Training Organisations requires that RTOs provide accurate and current information as required by the Data Provision Requirements as updated from time to time. The WA Regulations are a legislative instrument that as at February 2020 could be accessed at
https://www.legislation.wa.gov.au/legislation/statutes.nsf/home.html .

150. New subsection 210A(1) will ensure that NCVER can share the information that it collects as part of the National VET Provider Collection to the Commonwealth department responsible for VET as well as other Commonwealth authorities and State or Territory authorities (other than registered training organisations) that deal with or have responsibility for VET, to enable those bodies to collect a full set of data integral to performing their purposes.

151. Commonwealth authorities and State and Territory authorities (other than registered training organisations) that deal with or have responsibility for VET may use the data collected from NCVER for their purposes that include:

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administering VET, including program administration, regulation, monitoring and evaluation;

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facilitating statistics and research relating to education, including surveys and data linkage;

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understanding how the VET market operates, for policy, workforce planning and consumer information.

152. It is essential that governments and regulators have access to the full set of information collected by NCVER as part of the National VET Provider Collection, so that the spectrum of individual circumstances can be considered in policy, funding and regulatory decision-making. Examples of individual circumstances include people with particular needs, such as people with disability and those where English is not a first language, or people from particular parts of the country. New subsection 210A(1) facilitates these data flows.

153. Disclosure will be limited to those bodies listed in subsection 210A(1) where the protection of personal information through sophisticated cyber and data protections and data management strategies are already in place.

154. At the time an RTO collects a student's information (usually at enrolment), which includes personal information and sensitive information (such as disability status), the student is provided with a privacy notice. The privacy notice will include those bodies specified under subsection 210A(1).

155. New subsection 210A(2) provides that NCVER may, for the purposes of NCVER, disclose information collected in accordance with the Data Provision Requirements, or any equivalent requirements in a non-referring State, to a person engaged by NCVER to conduct research on behalf of NCVER. A person engaged by NCVER to conduct research on behalf of NCVER includes a contractor.

156. Where NCVER can disclose information to a person engaged by NCVER to conduct research on their behalf (by virtue of subsection 210A(2)), by implication that person will also be authorised to collect that information, including where that information includes sensitive information within the meaning of the Privacy Act.

157. New subsection 210A(3) provides that NCVER may disclose information to a person under subsection 210A(2) only if the person satisfies the requirements (if any) prescribed by the information safeguard rules made for the purposes of paragraph 210A(3)(a) and NCVER satisfies the requirements (if any) prescribed by the information safeguard rules for the purposes of paragraph 210(3)(b). The information safeguard rules may include requirements that NCVER or the person engaged by NCVER must satisfy before the disclosure can be made. These rules give the Minister the capacity to impose particular requirements on both parties to further safeguard a person's privacy.

New section 210B

158. Item 2 also inserts new section 210B - Disclosure of information by the Department etc., into the NVETR Act.

159. New subsection 210B(1) provides that the section applies to information that has been disclosed by NCVER under paragraph 210A(1)(a), that is, information that was disclosed to the Department by NCVER, pursuant to new subsection 210A(1)(a).

160. New subsection 210B(2) provides that the Secretary may disclose the information referred to in subsection 210B(1), for the purposes of the Department, to a Commonwealth authority or a person engaged by the Secretary to carry out an activity on behalf of the Department. For example, disclosing to the Australian Bureau of Statistics for the Multi Agency Data Integration Project, or to a contractor to conduct research on a program or policy initiative on behalf of the Department.

161. New subsection 210B(3) provides that the Secretary may disclose information to an authority or person under subsection 210B(2) only if the authority or person satisfies the requirements, if any, prescribed by the information safeguard rules for the purposes of subsection 210B(2). These rules give the Minister the capacity to impose particular requirements that further safeguard a person's privacy.

New section 210C

162. Item 2 also inserts new section 210C which provides that Subdivision B of Division 2 of Part 9 does not limit the disclosure of information that may be authorised in other circumstances. The note to section 210C states that the disclosure of information may be authorised in other circumstances, such as under the Privacy Act.

Item 3 - At the end of Division 2 of Part 9

163. Item 3 adds a new Subdivision D - Information safeguard rules, at the end of Division 2 of Part 9. New section 214A provides that the Minister may, by legislative instrument, make information safeguard rules prescribing matters required or permitted by the NVETR Act to be prescribed by the information safeguard rules. The information safeguard rules are to be provided to the Ministerial Council for their agreement.

164. The information safeguard rules have been included in the Bill as an additional layer of safeguards to protect the disclosure of personal information. For disclosures under subsection 210A(2), both NCVER and the person to whom the information may be disclosed may be required to satisfy particular requirements as set out in the rules. For disclosures under subsection 210B(2), the Department may be required to consider whether the Commonwealth authority or person to whom the information may be disclosed satisfies particular requirements set out in the rules. The information safeguard rules could, for example, be used to set parameters in relation to information disclosures to bodies that are not subject to the Privacy Act.

165. The information safeguard rules have been included as subordinate legislation to give the Minister flexibility to address unforeseen privacy related issues that may arise as the information sharing measures in the Bill are implemented.

Item 4 - At the end of Division 1 of Part 12

166. Item 4 adds new section 226A into the NVETR Act. This new section provides that the Secretary may, by writing, delegate all or any of her functions or powers under the NVETR Act to an SES employee or acting SES employee, in the Department. The Secretary cannot delegate functions or powers that have been delegated to the Secretary under section 223 of the NVETR Act. A note refers to the definition of SES employee and acting SES employee in the Acts Interpretation Act.