Explanatory Memorandum
(Circulated by the authority of the Minister for Education, the Honourable Dan Tehan MP)Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Education Legislation Amendment (2019 Measures No. 1) Bill 2019
The Education Legislation Amendment (2019 Measures No. 1) Bill 2019 ( the 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 purpose of the Bill is to make higher education more accessible and affordable to students by:
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- increasing the combined Higher Education Loan Program ( HELP ) loan limit for students undertaking eligible aviation courses from 1 January 2020 at higher education providers approved under the Higher Education Support Act 2003 ( HESA ) and vocational education and training ( VET ) providers approved under the VET Student Loans Act 2016 ( VSL Act );
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- enabling the Minister to determine the aviation courses for which a person has the higher HELP loan limit;
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- providing for all or part of a person's HELP debt to be remitted for their recognised initial teacher education course after they have been engaged as a teacher for four years in a school in a very remote location of Australia from the start of the 2019 school year;
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- reducing indexation on a person's outstanding accumulated HELP debt while they are teaching in a school in a very remote location of Australia; and
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- allowing the Department of Human Services restricted access to higher education data and VET student loans ( VSL ) data in order to administer student benefits.
HESA is the main piece of legislation governing Commonwealth funding of higher education in Australia. HESA provides for the Commonwealth to give financial support to higher education providers through government subsidies and loans to higher education students to cover their tuition and other fees. The VSL Act provides capped loans to VET students for tuition fees in approved higher-level VET courses.
Schedule 1 to the Bill will make changes to the HELP loan limit. From 2020, students undertaking eligible aviation courses that lead to certification as a Commercial Pilot at higher education providers and VSL providers will be able to access the higher of the two HELP loan limits (the same limit that applies to students studying medicine, dentistry and veterinary science courses). The higher HELP loan limit will be $152,700 for 2020. This reduces the students' barrier for enrolling in aviation courses through increased loan assistance to defer tuition fees for their aviation study.
Schedule 2 to the Bill will introduce two measures to assist teachers working in schools in very remote locations in Australia reduce the HELP debts they have incurred in studying their initial teacher education course. First, teachers working in schools in very remote locations will have the annual indexation of their HELP debt reduced. The amount by which the annual indexation of a teacher's HELP debt will be reduced will be proportional to the period of time during the previous calendar (school) year that the teacher worked in a very remote location; a teacher who works for a full year in a very remote location will not have their HELP debt indexed at all in the following year.
Second, teachers who work for an equivalent of four years' full-time in schools in very remote locations in Australia will have an amount, incurred for their recognised initial teacher education course, up to the value of their outstanding HELP debt, fully remitted.
A school is defined in Schedule 2 to the Bill to be an early childhood education and care service providing a preschool education program, a preschool, or a school providing primary or secondary education. Accordingly, these measures will assist teachers employed in very remote primary and secondary schools, as well as teachers employed in a very remote early childhood education settings.
These measures will also assist schools in very remote locations of Australia to recruit and retain high quality teachers, thereby improving education outcomes for students in these very remote communities.
Schedule 3 to the Bill will introduce a number of other measures to:
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- improve the efficiency of the collection of data from higher education and VSL providers by allowing the Department of Human Services restricted access to higher education and VSL data collected by the Department of Education and the Department of Employment, Skills, Small and Family Business in order to administer student benefits, under the Transforming the Collection of Student Information ( TCSI ) initiative;
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- clarify that information collected under HESA can be used to administer the VSL program; and
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- update higher education provider names and make technical corrections to definitions in HESA.
Summary of analysis
The measures contained within this Bill are limited and justifiable. While there is minor potential for some changes to limit privacy, and limit eligibility of these measures to certain groups of students, these measures are necessary to support efficient administration of HELP and increase affordability and accessibility of higher education in Australia.
Analysis of human rights implications
The Bill engages the following human rights:
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- the right to work - Article 6 of the International Covenant on Economic, Social and Cultural Rights ( ICESCR );
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- the right to education - Article 13 of the ICESCR;
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- the right to privacy and reputation - Article 17 of the International Covenant on Civil and Political Rights ( ICCPR ); and
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- the right to equality and non-discrimination - Article 26 of the ICCPR.
ICESCR Article 6 - Right to work
Article 6(1) of the ICESCR recognises the right to work, which includes the right of everyone to the opportunity to gain their living by work that they freely choose or accept. Article 6(2) provides that the steps to be taken by States Parties to achieve the full realisation of this right include providing technical and vocational education programs to promote employment.
Schedule 1 to the Bill promotes the right to work through increasing the HELP loan limit for students undertaking eligible aviation courses of study, which will improve employment outcomes and opportunities for these students.
Schedule 2 to the Bill also promotes the right to work by assisting teachers who work in very remote locations of Australia through reducing certain HELP debts. This will safeguard an individual's choice and right to work in a very remote location by reducing financial burden.
This Bill is compatible with the right to work.
ICESCR Article 13 - Right to education
This Bill engages the right to education under Article 13 of the ICESCR, which recognises the important personal, societal, economic and intellectual benefits of education. Article 13(2)(c) provides that 'higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education'.
Schedule 1 to the Bill promotes the right to education through increasing HELP loan limit for students undertaking eligible aviation courses of study, which will enable students to have sufficient loan entitlement to defer tuition costs for aviation courses required to meet the licencing requirements to obtain a Commercial Pilot Licence. It will also ensure students continue to have the highest level of choice and control over their education options.
Schedule 2 of the Bill also promotes the right to education by providing a post-study economic benefit of reducing all or part of a teacher's HELP debt, for their recognised initial teacher education qualification after teaching for four years in a school in very remote location of Australia. Moreover, it will assist schools (this includes preschools, early childhood education and care services providing a preschool program, and schools providing primary and secondary education) in very remote locations of Australia to recruit and retain high quality teachers, thereby improving education outcomes for students in these very remote communities in Australia.
The Bill is compatible with the right to education.
ICCPR Article 17 - Right to privacy and reputation
This Bill engages with Article 17(1) and 17(2) of the ICCPR, which states that 'no one shall be subject to arbitrary or unlawful interference with their privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation' and that 'everyone has the right to the protection of the law against such interference or attacks'.
The right to privacy can be permissibly limited in order to achieve a legitimate objective and where the limitations are lawful and not arbitrary. In this case, the legitimate end is the provision of benefits to students and improvement to the collection of student data from higher education providers which will improve the administration of student financial benefits through the TCSI initiative.
The measures contained in Schedule 2 to the Bill, remission of HELP debt for recognised initial teacher education course and reducing HELP debt indexation for teachers in very remote locations, engages the right to privacy. Personal information will be collected from applicants through an application process in order to determine whether the applicant is eligible for remission of their HELP debt and HELP debt indexation reduction. This limitation on the right to privacy is reasonable, necessary and proportionate to the policy objective, to ensure that only eligible applicants receive the benefit of this measure.
The measure contained in Schedule 3 to the Bill, allowing the Department of Human Services restricted access to higher education and VSL data in order to administer student benefits, may limit the right to privacy. The disclosure of information to certain agencies will give effect to the TCSI initiative by allowing the Secretary to authorise the disclosure of HESA information and VET information to an agency administered by a Minister that administers the Human Services (Centrelink) Act 1997, Social Security Act 1991, Student Assistance Act 1973 or a law of the Commonwealth listed in the Administration Guidelines for the purposes of that agency. This may include the disclosure of personal information.
Lawful interference with the right to privacy is permitted under Article 17 of the ICCPR, provided it is not arbitrary. Authorised disclosure of personal information also invokes the exception in Australian Privacy Principle ( APP ) 6.2(b) in Schedule 1 of the Privacy Act 1988, which permits the disclosure of an individual's personal information for a secondary purpose where the disclosure is authorised by law.
The legitimate objective of this measure is to facilitate the objectives of the TCSI initiative. TCSI is a Commonwealth initiative between the Department of Education and Department of Human Services to improve and transform how student information is collected. The Commonwealth is working with education providers to build a better solution to replace the Higher Education Provider Client Assistance Tool for all education providers and the Centrelink Academic Reassessment Transformation for universities. Students will benefit from the TCSI initiative, as making claims for student financial support will become simpler with increased payment accuracy. For education providers, it will reduce reporting duplication through a simpler and more intuitive system designed to reduce deficiencies and improve data quality and availability.
Access to quality higher education and VSL student data is reasonable, necessary and proportionate to achieve the policy objective, which is to improve the administration of student financial benefits through the Commonwealth's TCSI initiative. The use and disclosure of personal information collected under this measure will be limited to the purposes described in the Bill. Disclosure and use of personal information outside of these parameters are still subject to the offence provisions under Division 179 of Part 5-4 of HESA and Division 2 of Part 9 of the VSL Act, which deals with offences for the misuse of personal information.
Therefore, the effect of this measure in allowing the Department of Human Services restricted access to higher education and VSL data is legitimate, proportionate and compatible with the right to privacy.
Finally, the amendments in Schedule 3 to the Bill will enable the use and disclosure of personal information collected under HESA with the consent of the individual whom the information relates. Obtaining informed consent to use and disclose personal information reflects best-practice management of personal information, and allows individuals control over their information. Consent provides the primary authority to use and disclose personal information recognised under APP 6.1(a) of the Privacy Act 1988.
The Bill is compatible with the right to privacy and reputation.
ICCPR Article 26 - Right to equality and non-discrimination
This Bill engages Article 26 of the ICCPR which states that 'the law shall prohibit any discrimination and guarantee to all persons equal protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status'.
The UN Human Rights Committee stated in its General Comment 18 that:
The Committee observes that not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant.
The measure in Schedule 1 to the Bill, increasing the combined HELP loan limit for students undertaking eligible aviation courses at higher education providers and VSL providers, may be seen as limiting the right to equality and non-discrimination due to the measure being available to a particular group of students, those studying eligible aviation courses.
However, this limitation is permissible, as the measure is to ensure that students, who incur high costs for aviation courses required for a Commercial Pilot Licence, are not significantly disadvantaged by the combined HELP loan limit that commences from 1 January 2020. By allowing students enrolled in eligible aviation courses to access the upper HELP loan limit (in line with students studying medicine, dentistry and veterinary science courses), it is reducing the upfront financial costs on these students.
Access to the upper HELP loan limit for aviation students is limited to courses that they are required to complete to obtain their Commercial Pilot Licence, due to Australia's current skill shortage of qualified commercial pilots within the aviation industry. This measure helps ensure the HELP loan limit does not become a barrier or a deterrent to prospective students considering a career as a commercial pilot. Therefore, the effect of the measure is legitimate, proportionate and compatible with the right to equality and non-discrimination.
The measure contained in Schedule 2 to the Bill, the remission of HELP debt for recognised initial teacher education course and reduction of indexation on accumulated HELP debt for teachers in very remote locations, may be seen as limiting the right to equality and non-discrimination due to the measure being available to a particular occupation of HELP debtors, those working as a teacher in schools in very remote locations of Australia.
However, this limitation on Article 26 is reasonable, as the purpose of the measure is to improve education outcomes for students in very remote communities of Australia, many of whom are of Aboriginal and Torres Strait Islander descent, by recruiting and retaining high quality teachers in these communities. Therefore, the effect of the measure is legitimate, proportionate and compatible with the right to equality and non-discrimination.
Within the group of eligible teachers, the measure could be seen as unfair or discriminatory, as there may be some eligible teachers who have repaid more of their HELP debt than others if they have already worked and earned a salary prior to their placement in a very remote location. However, those teachers who have made some repayments can still benefit from this measure from receiving a reduction of indexation on their outstanding accumulated HELP debt while they are teaching in a very remote location of Australia, thereby ensuring all eligible teachers benefit from the measure while teaching in very remote communities.
The Bill is compatible with the right to equality and non-discrimination.
Conclusion
The Bill is compatible with human rights because it promotes those rights or, to the extent that it may limit human rights, the limitations are reasonable, necessary and proportionate.