Title Student Identifiers Amendment (Enhanced Student Permissions) Bill 2019
Database Explanatory Memoranda
Date 10-06-2020 09:54 AM
Source House of Reps
System Id legislation/ems/r6444_ems_8a19c72a-d9ba-4960-96c1-15ee03f32dce


Student Identifiers Amendment (Enhanced Student Permissions) Bill 2019

2019

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES  

 

 

 

 

 

 

 

STUDENT IDENTIFIERS AMENDMENT

(ENHANCED STUDENT PERMISSIONS) BILL 2019

 

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

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


STUDENT IDENTIFIERS AMENDMENT

(ENHANCED STUDENT PERMISSIONS) BILL 2019

 

 

GENERAL OUTLINE

 

The Student Identifiers Amendment (Enhanced Student Permissions) Bill 2019 (the Bill) proposes amendments to the Student Identifiers Act 2014 (the Act) intended to make it simpler for employers, employment agencies and licensing bodies, and others, to validate an individual’s vocational education and training (VET) qualifications. As such these amendments are intended to assist, in particular, the integrity of recruitment processes and applications for licenses in skilled professions and occupations. The amendments also propose to protect the integrity of authenticated VET transcripts by introducing a civil penalty regime to address attempts to apply for a second unique student identifier (USI), alter an authenticated VET transcript (or extract) or represent that a document is an authenticated VET transcript (or extract).

 

The Bill also proposes to specify in the Act that the Student Identifiers Registrar has power to grant an exemption to the requirement to hold a USI. It also makes minor technical changes to clarify the Registrar’s spending power in relation to funds held in the Student Identifiers Special Account.

 

Consultation and Privacy Impact

 

The Student Identifiers Registrar, state and territory governments, the National Centre for Vocational Education Research, the Australian Skills Quality Authority, the Victorian Registration & Qualifications Authority and the Western Australian Training Accreditation Council were consulted in relation to the measures proposed by this Bill through the Skills Senior Officials’ Network (SSON) Data Strategy Working Group, SSON and the Council of Australian Governments Skills Council. The Unique Student Identifiers Combined Working Group was also consulted.

 

The department engaged HWL Ebsworths to prepare a Privacy Impact Assessment in relation to the measures proposed by this Bill to ensure consistency with the Privacy Act 1988. All recommendations have been agreed to and are being implemented.

 

FINANCIAL IMPACT STATEMENT

 

The amendments contained in Schedule 1 to the Bill would have no financial impact. 

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

The Statement of Compatibility with Human Rights appears at the end of this explanatory memorandum.


Student Identifiers Amendment

(Enhanced Student Permissions) Bill 2019



Clause 1 – Short Title

 

Clause 1 provides for the short title of the Act to be the Student Identifiers Amendment (Enhanced Student Permissions) Act 2019.

 

Clause 2 – Commencement

 

The table in this clause provides for the commencement of the provisions in the Bill, when enacted. The table provides that the whole of the Act commences on the day after Royal Assent.

 

Clause 3 – Schedules

 

Clause 3 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.

 

 

Abbreviations used in this Explanatory Memorandum

 

Act means the Student Identifiers Act 2014.

 

RTO means registered training organisation.

 

Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.

 

SSON means Skills Senior Officials’ Network.

 

USI means unique student identifier.

 

VET means vocational education and training.

 

Schedule 1 – Amendments

 

 

Background

 

Since the activation of the USI transcript service in May 2017 (information technology system for creating authenticated VET transcripts), employers, employment agencies, and Commonwealth and state and territory licensing bodies have shown an interest in accessing authenticated VET transcripts to verify an individual’s VET qualifications, and to streamline recruitment and application processes. An individual’s authenticated VET transcript contains a record of any nationally recognised training undertaken since 1 January 2015 subject to access controls set by the individual. Currently, an individual can set access controls that only allow RTOs and VET-related bodies to view their transcripts.

 

Key amendments

 

Schedule 1 of the Bill proposes amendments to the Act. The key measure will allow any entity to request access to an individual’s authenticated VET transcripts or extract of an authenticated VET transcript, where that access is permitted by the access controls set by the individual. Before an entity can request the individual’s authenticated VET transcript through the USI transcript service, they must agree to the terms and conditions of being granted access to the transcript, further protecting the individual’s privacy.

 

The Bill introduces civil penalty provisions, which are enforceable through civil penalty proceedings or issuing infringement notices. These provisions are designed to protect the integrity of the USI framework and act as a deterrent to people who attempt to obtain a second USI or alter authenticated VET transcripts or extracts of authenticated VET transcripts.

 

Additional amendments propose to set out in the Act, the Student Identifiers Registrar’s powers to determine whether an individual will be granted an exemption from being assigned a USI. If an exemption is granted, an RTO has the ability to issue the individual with a VET qualification or VET statement of attainment without requiring the individual to have a USI.

 

There are some additional minor technical amendments clarifying spending powers in relation to the Student Identifiers Special Account.

 

 

 

 

Detailed explanation

 

Student Identifiers Act 2014

 

Item 1 – Section 3

 

Section 3 of the Act contains a simplified outline of the Act. Item 1 amends the simplified outline to reflect amendments proposed by the Bill that will give the Student Identifiers Registrar the power to give ‘other entities’ access to authenticated VET transcript or an extract of an authenticated VET transcripts of an individual where requested (see item 4 to 8). The outline notes that access is subject to access controls set by the individuals.

 

The outline is included to assist readers to understand the substantive provisions of the Act but is not intended to be substantive in itself.

 

Item 2 – At the end of section 3

 

Item 2 also amends the simplified outline at section 3 of the Act to include information about the civil penalty provisions that are proposed to be inserted in the Act by the Bill (see item 9).

 

Item 3 – Subsection 4(1)

 

Item 3 inserts two new definitions into the definitions section of the Act (section 4). These definitions relate to the new civil penalties proposed to be inserted into the Act.

The first of the new definitions, ‘civil penalty provision’ is defined as having the ‘same meaning as in the Regulatory Powers Act.’

The second is a definition for the ‘Regulatory Powers Act’. ‘Regulatory Powers Act’ is defined to mean the Regulatory Powers (Standard Provisions) Act 2014.

 

Items 4-6 – Sections 26 and 28

 

Prior to these amendments, Part 3 of the Act enables the Student Identifiers Registrar to give an individual, an RTO or a VET-related body access to an authenticated VET transcript or an extract of an authenticated VET transcript.

 

Items 4 to 8 of the Bill amend Part 3 of the Act to expand the entities to which the Student Identifiers Registrar can give an authenticated VET transcript or extract of an authenticated VET transcript access, to include ‘other entities’.

Item 4 amends the simplified outline for Part 3 of the Act, to add that, in addition to an RTO or a VET-related body, other entities may also be provided access to all or part of an authenticated VET transcript, on request and subject to the access controls set by the individual to whom the transcript relates.

 

Entity is defined in section 4 of the Act to mean a person, a partnership, any other unincorporated association or body or a trust. Therefore other entities include employers, employment agencies and licensing bodies.

 

Item 5 amends the heading to section 28 to reflect the fact that the Act is being amended to broaden the range of entities which can be provided access to authenticated VET transcripts and extracts of authenticated VET transcripts.

 

Item 6 amends subsection 28(1) of the Act to broaden the entities to whom the Student Identifiers Registrar may provide access, on request, to an authenticated VET transcript or extract of an authenticated VET transcript to include ‘other entities’.

The Act provides that any request to access an authenticated VET transcript or an extract of an authenticated VET transcript will need to be in a manner and form approved by the Student Identifiers Registrar and include any information required by the Registrar (subsection 28(2)). The Act also provides that the Registrar must not give access under subsection 28(1) unless access controls have been set by the individual.

These requirements in subsection 28(2) and (3) will also apply to access to authenticated VET transcripts and extracts of authenticated VET transcripts by other entities. The access controls set by the individual could for example specify that the authenticated VET transcript is only available for a certain period of time, including a short period of time such as one week, with access revoked at any time by the individual. The individual will also determine who will be given access to the authenticated VET transcripts.

 

Item 7 – At the end of subsection 28(1)

 

Item 7 adds a note after subsection 28(1) to clarify the existing operation of privacy law, being that the Student Identifiers Registrar may also disclose personal information in an authenticated VET transcript in accordance with Australian Privacy Principle 6 (APP 6).

 

APP 6 outlines where an APP entity may use or disclose personal information. Under APP 6, for example, an APP entity may use or disclose personal information if the APP entity reasonably believes that the use or disclosure of the information is reasonably necessary for one or more enforcement related activities conducted by, or on behalf of, an enforcement body.

 

The note at item 7 is merely declaratory of the existing law and is not intended to limit the existing provisions of the Act or the Student Identifiers Registrar’s ability to collect, use or disclose personal information under any of the Australian Privacy Principles.

 

Item 8 – Subsection 28(4)

 

Subsection 28(4) of the Act provides that, if the Student Identifiers Registrar refuses to give access under subsection 28(1), the Registrar must give the RTO or the VET-related body written notice of the decision and the reasons for the decision. Item 8 extends the existing obligation on the Registrar to give written notice of, and reasons for, a decision to where an ‘other entity’ has been refused access to an authenticated VET transcript or extract of an authenticated VET transcript.

 

Item 9 – After Part 3

 

Item 9 inserts new Part 3A into the Act. New Part 3A establishes a range of civil penalty provisions relating to applications for student identifiers, alterations to an authenticated VET transcript or extract of an authenticated VET transcript prepared by the Registrar and falsely holding a document out to be an authenticated VET transcript or extract of an authenticated VET transcript prepared by the Registrar.

 

Part 3A – Civil penalties and infringement notices

 

Part 3A is comprised of a simplified outline and four new sections. Two sections establish civil penalties and two sections trigger the operation of provisions in the Regulatory Powers Act.

 

Section 29A – Simplified outline of Part 3A

 

New section 29A contains a simplified outline of the new civil penalty provisions in the Act. This outline is included to assist readers understand the substantive provisions of the Bill but is not intended to be substantive in itself.

 

Section 29B – Civil penalties – applications for student identifiers

 

New subsection 29B(1) provides that an individual will be liable to a civil penalty under the Act if the individual has been assigned a student identifier (and the identifier has not been revoked) and the individual applies to the Student Identifiers Registrar for another identifier or authorises an RTO, VET admission body or another entity to apply for another identifier on their behalf.

 

The amount of the civil penalty is 60 penalty units.

 

The note to this subsection draws attention to section 95 of the Regulatory Powers Act which deals with mistake of fact. Subsection 95(1) of the Regulatory Powers Act provides that a person is not liable to have a civil penalty order made against them for a contravention of a civil penalty provision if, at or before the time of the conduct constituting the contravention, the person considered whether or not facts existed and was under a mistaken but reasonable belief about those facts and had those facts existed, the conduct would not have constituted a contravention of a civil penalty provision.

 

Therefore, for example, an individual who already has a student identifier and who applies for an identifier under the mistaken but reasonable belief that they do not already have an identifier, will not be liable to have a civil penalty order made against them.

 

Section 29D (discussed below) invokes Part 4 of the Regulatory Powers Act for the civil penalties in the Act.

 

Section 29C – Civil penalties – authenticated VET transcripts

 

New section 29C creates civil penalty liabilities in two situations. Subsection 29C(1) provides that a person is liable to a civil penalty if the person alters an authenticated VET transcript (or an extract of an authenticated VET transcript prepared by the Registrar). This captures conduct such as adding courses or qualifications into the authenticated VET transcript that the student has not studied so that it appears the individual has completed those courses or gained a qualification.

 

The second of the civil penalties is set out in new subsection 29C(2) and applies where a person has created a document that purports to be an authenticated VET transcript or an extract of an authenticated VET transcript prepared by the Registrar, even though it is not an authenticated VET transcript or extract.

 

The amount of the civil penalty for a breach of subsection 29C(1) or (2) is 60 penalty units.

 

Section 29D – Enforcement under Regulatory Powers Act – civil penalty provisions

 

Part 4 of the Regulatory Powers Act sets out a framework for the enforcement of civil penalty provisions. New subsection 29D(1) triggers Part 4 of the Regulatory Powers Act to enable the enforcement of the new civil penalty provisions inserted into the Act.

 

New subsection 29D(2) provides that the Student Identifiers Registrar is an authorised applicant for the purposes of Part 4 of the Regulatory Powers Act. An authorised applicant has the power to apply to a specified court for an order that a person, who is alleged to have contravened a civil penalty provision, pay the Commonwealth a pecuniary penalty (section 82 of the Regulatory Powers Act).

 

New subsection 29D(3) provides that the relevant courts for the purposes of Part 4 of the Regulatory Powers Act are the Federal Court of Australia and the Federal Circuit Court of Australia.

 

New subsection 29D(4) provides that to the extent that Part 4 of the Regulatory Powers Act is invoked by the Act in relation to civil penalties, the provisions apply to every external territory.

 

 

Section 29E – Enforcement under Regulatory Powers Act – infringement notices

 

Part 5 of the Regulatory Powers Act creates a framework for the use of infringement notices where an infringement officer reasonably believes that a provision has been contravened.

 

New subsection 29E(1) provides that the civil penalty provisions under the Act are subject to an infringement notice under Part 5 of the Regulatory Powers Act.

 

New subsection 29E(2) makes the Student Identifiers Registrar the infringement officer for the purposes of Part 5 of the Regulatory Powers Act. The infringement officer may issue an infringement notice to a person if they believe on reasonable grounds that a person has contravened a civil penalty provision in the Act (subsection 103(1) Regulatory Powers Act).

 

New subsection 29E(3) makes the Student Identifiers Registrar the relevant chief executive for the purposes of Part 5 of the Regulatory Powers Act. This gives the Student Identifiers Registrar the power to extend the period for an individual to pay an infringement notice (section 105 Regulatory Powers Act) and the power to withdraw the infringement notice (section 106 Regulatory Powers Act).

 

New subsection 29E(4) allows the Student Identifiers Registrar to delegate their powers under Part 5 of the Regulatory Powers Act to an SES employee or acting SES employee in the department or an APS employee who holds or is acting in an Executive Level 2 position or equivalent position in the department. This delegation is intended to include officers within the department as well as  staff assisting the Registrar under section 45 of the Act. The delegation levels assist the Registrar in performing her functions, as the Registrar is the only SES-level officer managing the Office of the Student Identifiers Registrar,

 

Employees to whom powers are delegated must comply with any written directions given by the Student Identifiers Registrar (new subsection 29E(5)).

 

Item 10 – Subparagraphs 32(1)(f)(i) and (ii)

 

Section 32 of the Act sets out the functions of the Student Identifiers Registrar. Included in the list is the function set out at paragraph 32(1)(f) - to establish and maintain a mechanism to enable an individual who has been assigned a student identifier to set access controls on RTOs and VET-related bodies that may request access to an authenticated VET transcript or an extract of an authenticated VET transcript.

 

Item 10 of the Bill proposes an amendment to paragraph 32(1)(f) of the Act to include a reference to ‘other entities’. This is a consequential change that is related to the amendments at items 4 – 8 of the Bill that expand the entities to whom the Student Identifiers Registrar can give an authenticated VET transcript or extract of an authenticated VET transcript, to include ‘other entities’. This amendment also means that the purposes of the Student Identifiers Special Account will be taken to extend to this amended function (through the reference in paragraph 50(a) of the Act). In practice this will mean that Special Account funds may be applied for the purposes of the Registrar establishing and maintaining mechanisms to ensure any ‘other entities’ are only provided access to authenticated VET transcripts (or extracts) consistently with an individual’s access controls. These amendments do not otherwise expand the purposes to which Special Account money may be applied and are consistent with the strict connection between the Student Identifiers Special Account, the VET sector and the administration of the Registrar’s functions under the Act.

 

Item 11 – After paragraph 32(1)(f)

 

Section 48 of the Act establishes the Student Identifiers Special Account. Item 11 of the Bill is intended to provide clarity in relation to the Student Identifiers Registrar’s functions in relation to the Special Account. Item 11 reflects the Registrar’s powers to spend for the purposes of the Special Account and provides that one of the Registrar’s express functions is to manage the Account in a way that ensures that the balance of the Account is sufficient to cover debits of amounts for the purposes of the Account.

 

Item 12 – Paragraph 50(a)

 

Item 12 provides additional clarity in relation to the Student Identifiers Registrar’s power to spend for the purposes of the Student Identifiers Special Account.

 

Section 50 of the Act sets out the purposes of the Special Account. One of the purposes of the Special Account is paying or discharging the costs, expenses and other obligations incurred by the Commonwealth in the performance of the Student Identifiers Registrar’s functions.

 

Item 12 amends paragraph 50(a) of the Act to include the words ‘or the exercise of the Student Identifiers Registrar’s powers’. This amendment makes it clear that the Special Account can be used to pay for costs, expenses and other obligations incurred by the Commonwealth in the performance of the Registrar’s powers (as well as functions) exercised under the SI Act.

 

Item 13 – After paragraph 50(b)

 

Item 13 also amends section 50 to include two additional paragraphs. New paragraph (ba) makes it clear that the money in the Special Account can be used to reimburse an appropriate authority of a state or territory (as provided for in subsection 46(3) of the Act) for the services of officers or employees, made available to the Student Identifiers Registrar (in accordance with subsection 46(2) of the Act).

 

New paragraph (bb) makes it clear that the money in the Special Account can be used to make payments to consultants that the Student Identifiers Registrar has engaged under section 47 of the Act.

 

The amendments in items 11 to 13 reinforce the position that the Student Identifiers Registrar has the power to spend money on her own behalf and that the Registrar does not need to rely on delegations made under the Public Governance, Performance and Accountability Act 2013 to have the power in relation to such expenditure.

 

Items 14 and 15 – section 53

 

Subsection 53(1) of the Act provides that a RTO must not issue a VET qualification or VET statement of attainment to a student, unless the student has been assigned a student identifier.

 

Subsection 53(3) of the Act provides that the Commonwealth Minister may, by legislative instrument, set out where an issue of an authenticated VET transcript or statement of attainment does not need to comply with the requirement in subsection 53(1).

 

Item 15 of the Bill amends section 53 of the Act to provide that an individual may apply to the Student Identifiers Registrar to make a determination that the requirement in subsection 53(1) does not apply (new subsection 53(5)).

 

The request by the individual must be in the manner and form approved by the Student Identifiers Registrar and include any information required by the Registrar (new subsection 53(5)). If an individual makes a request, the Registrar must make, or refuse to make the determination (new subsection 53(6)). The determination made by the Registrar under proposed subsection 53(6) is not a legislative instrument (new subsection 53(10)).

 

The Commonwealth Minister, may by legislative instrument, determine matters (new subsection 53(9)) that the Student Identifiers Registrar must have regard to when making a decision (new subsection 53(7)). Before making a legislative instrument, the Commonwealth Minister must obtain the agreement of the Ministerial Council to the making of the instrument (new subsection 53(12)).

 

Ministerial Council is defined in section 4 as ‘if there is a body established by the Council of Australian Governments to deal with training and skills – that body’ or ‘otherwise – a body prescribed by the regulations.’

 

If the Student Identifiers Registrar makes a determination under subsection 53(6), subsection 53(1) will not apply to the individual (new subsection 53(4)).

 

The Student Identifiers Registrar must notify the individual of the Registrar’s decision on the request (new subsection 53(8)). If the Registrar refuses to make a determination, the notice must include reasons for the refusal (new subsection 53(8)).

 

If the Student Identifiers Registrar assigns a student identifier to an individual and immediately before this, a determination by the Registrar under subsection 53(6) is in force, the determination under subsection 53(6) is taken to be revoked (proposed subsection 53(11)).

 

The Commonwealth Minister will continue to be able to issue a legislative instrument under subsection 53(3) to also grant an exemption from subsection 53(1). To this end, item 14 of the Bill inserts a new heading above subsection 53(2) ‘Exemptions given by Commonwealth Minister’.  Before making a legislative instrument, the Commonwealth Minister will need to obtain the agreement of the Ministerial Council. Prior to the amendments, this is a requirement in subsection 53(4) of the Act. Item 12 of The Bill moves this requirement to new subsection 53(12).

 

Exclusion of merits reviews for decisions made by the Registrar under new subsection 53(6) is justifiable in order to meet the legitimate policy objectives in the Act. Currently, the number of individuals seeking an exemption in the VET sector under the Act is negligible in comparison to the number of identifiers issued by the Registrar each year. The inclusion of merits review would not be an efficient use of Commonwealth resources where the cost of merits review would be greatly disproportionate to the number of individuals requesting exemptions. Also, external merits review at the Administrative Appeals Tribunal may have the disadvantage of delaying outcomes for an individual which may impact on whether an individual can enrol in a course that would lead to a VET qualification or VET statement of attainment.

 

 

Item 16 Application provisions

 

Item 16 sets out the following application provisions for the amendments:

 

·         The amendments at items 6, 8 and 10 that relate to access to authenticated VET transcripts apply to authenticated VET transcripts prepared by the Student Identifiers Registrar on or after the commencement of item 16 (item 16 paragraph (1)).

 

·         The civil penalty provisions for applications for student identifiers in proposed new subsection 29B(1) apply to applications (by an individual) or authorisations for an entity to apply (on the individual’s behalf) for student identifiers that take place on or after the commencement of item 16 (item 16 paragraph (2)).

 

·         The civil penalty provisions for applications for student identifiers in proposed new subsection 29B(2) apply in relation to an application made on or after the commencement of item 16 (item 16 paragraph (3)).

 

·         The civil penalty provisions in relation to altering authenticated VET transcripts or extracts in proposed new subsection 29C(1) apply to alterations made on or after the commencement of item 16. The authenticated VET transcript may have been prepared before, on or after the commencement of item 16 (item 16 paragraph (4)).

 

·         The civil penalty provision in relation to making a document that purports to be a authenticated VET transcript or extract in proposed new subsection 29C(2), applies in relation to a document that is made on or after the commencement of item 16 (item 16 paragraph (5)).

 

 


STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

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

 

Student Identifiers Amendment (Enhanced Student Permissions) Bill 2019

 

This Bill is compatible with 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

 

This Bill proposes amendments to the Student Identifiers Act 2014 (the Act) intended to make it simpler for employers, employment agencies and licensing bodies, and others, to validate an individual’s vocational education and training (VET) qualifications. As such these amendments are intended to assist, in particular, the integrity of recruitment processes and applications for licenses in skilled professions and occupations. The amendments also propose to protect the integrity of authenticated VET transcripts by introducing a civil penalty regime to address attempts to apply for a second Unique Student Identifier or altering authenticated VET transcripts.

 

The Bill also proposes amendments to specify in the Act that the Student Identifiers Registrar has power to grant an exemption to the requirement to hold a Unique Student Identifier. It also makes minor technical changes to clarify the Registrar’s spending power in relation to funds held in the Student Identifiers Special Account.

 

Human rights engaged by the Bill

 

The Bill engages the following rights:

 

·           the right to work in articles 6(1) and 6(2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR);

 

·           the right to privacy in article 17 of the International Covenant on Civil and Political Rights (ICCPR).

 

Human rights implications of the Bill

 

Right to work

Article 6(1) of the ICESCR recognises the right to work, which includes the right to the opportunity to gain a living by work which the job seeker freely chooses or accepts. Article 6(2) specifically refers to States’ obligations to realise this right by implementing ‘technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment’.

 

The extension of third party access to authenticated VET transcripts gives individuals the ability to authorise an entity to request access to their authenticated VET transcript. For example, a prospective employer may be authorised to request access, allowing the employer to quickly and easily verify the individual’s VET history and qualifications. As a result, this amendment aims to assist the integrity of hiring processes and ensures that employment decisions are made on the basis of accurate and verifiable evidence of qualifications, consistent with the right to work.

 

This Bill promotes and is compatible with the right to work.

 

Right to privacy

 

Article 17 of the ICCPR prohibits unlawful or arbitrary interferences with a person’s privacy. It provides that persons have the right to the protection of the law against such interference. In order for the interference with privacy not to be ‘arbitrary’, any interference with privacy must be in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable in the particular circumstances. Reasonableness, in this context, incorporates notions of proportionality to the end sought and necessity in the circumstances.

 

A measure proposed by the Bill engages the right to privacy under Article 17 as it proposes to give the Student Identifiers Registrar the authority to provide access to any entity to an individual’s authenticated VET transcript. Such access is subject to strict access controls which must be set by the individual prior to the Registrar granting this access.

 

Access to authenticated VET transcripts is currently available to RTOs and VET-related bodies such as the Commonwealth and states and territories. The individual must set access controls prior to the Student Identifiers Registrar giving access to an individual’s authenticated VET transcript in accordance with those controls. Extending the bodies that an individual can give access to their authenticated VET transcript gives the individual greater flexibility in who can verify their VET qualifications or training history. An example of this is where a prospective employer can quickly and easily verify the individual’s VET history potentially increasing the individual’s job prospects. This provides the employer a certain level of assurance that the individual’s VET qualification claims are matched by those reported by the RTOs with which the individual trained.

 

Individuals will be able to set and manage access controls that will give general or limited access, and can limit what information a third party can obtain from the individual’s educational records, either in the form of a complete authenticated VET transcript or transcript extract. For example, a student will be able to edit out certain courses that were not completed or that were undertaken with a particular RTO giving them the ability to choose what information they want displayed.

 

Before a third party can access the individual’s authenticated VET transcript through the student identifiers transcript service, they must agree to the terms and conditions of being granted access to the transcript, further protecting the individual’s privacy.

 

The department conducted a Privacy Impact Assessment in relation to this measure to ensure consistency with thePrivacy Act 1988. All recommendations have been agreed to and are being implemented.

 

The Student Identifiers Act 2014 gives the Office of the Australian Information Commissioner (OAIC) specific powers to investigate reported breaches of privacy. OAIC found in its June 2019 privacy assessment of the Office of the Student Identifiers Registrar’s management of personal information, that the Office of the Student Identifiers Registrar has a 'privacy by design' approach to designing and operating the system it uses to manage transcripts; and has established an effective privacy organisational structure. 

 

The Bill promotes and is compatible with the right to privacy.

 

Conclusion

 

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

 

 

Senator the Hon Michaelia Cash, Minister for Employment, Skills, Small and Family Business