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House of Representatives

Education Legislation Amendment (2019 Measures No. 1) Bill 2019

Explanatory Memorandum

(Circulated by the authority of the Minister for Education, the Honourable Dan Tehan MP)

OUTLINE

The purpose of the Education Legislation Amendment (2019 Measures No. 1) Bill 2019 ( the Bill ) is to make higher education more accessible and affordable to students by:

increasing the combined Higher Education Loan Program ( HELP ) loan limit for students undertaking eligible aviation courses on or after 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 );

·
enabling the Minister to determine the aviation courses for which a person has the higher HELP loan limit;
·
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;
·
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
·
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:

·
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;
·
clarify that information collected under HESA can be used to administer the VSL program; and
·
update higher education provider names and make technical corrections to definitions in HESA.

FINANCIAL IMPACT STATEMENT

This Bill implements the Government's higher education measures from the 2019-20 Federal Budget. The Bill also implements a measure to allow the Department of Human Services restricted access to higher education and VSL data from the 2017-18 MYEFO.

The measure in Schedule 1 to the Bill (higher HELP loan limit for certain aviation courses) delivers a positive impact of $45.9 million in fiscal balance terms over the period from 2019-20 to 2023-24. In underlying cash terms, the measure provides a minor saving of $1.7 million over the same period.

The measures in Schedule 2 to the Bill (HELP debt indexation reduction and HELP debt remittal for teachers working in very remote locations) have a cost of $94.0 million in fiscal balance terms over the period from 2019-20 to 2023-24. In underlying cash terms, the measures come at a cost of $28.7 million over the same period.

The measures in Schedule 3 to the Bill do not have financial implications.

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:

·
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 );
·
enabling the Minister to determine the aviation courses for which a person has the higher HELP loan limit;
·
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;
·
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
·
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:

·
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;
·
clarify that information collected under HESA can be used to administer the VSL program; and
·
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:

·
the right to work - Article 6 of the International Covenant on Economic, Social and Cultural Rights ( ICESCR );
·
the right to education - Article 13 of the ICESCR;
·
the right to privacy and reputation - Article 17 of the International Covenant on Civil and Political Rights ( ICCPR ); and
·
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.

Notes on Clauses

Clause 1 - Short title

Clause 1 provides for the Act to be the Education Legislation Amendment (2019 Measures No. 1) Act 2019.

Clause 2 - Commencement

Clause 2 sets out when the provisions of the Bill will commence, as follows:

Commencement date Provisions Notes
1 January 2019 Schedule 3, Part 1 Amendments correct an error in an application provision in the Higher Education Support Legislation Amendment (Student Loan Sustainability) Act 2018 that commenced on 1 January 2019.
Royal Assent Clauses 1 to 3

Schedule 3, Part 2

1 January 2020 Schedule 1

Schedule 2

These Schedules amend provisions that are amended or inserted by the Higher Education Support Legislation Amendment (Student Loan Sustainability) Act 2018 with effect from 1 January 2020. Consequently, they commence immediately after the relevant amendments made by that Act.

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.

List of abbreviations

ATO Australian Taxation Office / Commissioner of Taxation
HELP Higher Education Loan Program
HESA Higher Education Support Act 2003
Student Loan Sustainability Act Higher Education Support Legislation Amendment (Student Loan Sustainability) Act 2018
TCSI initiative Transforming the Collection of Student Information initiative
VET vocational education and training
VSL VET student loans
VSL Act VET Student Loans Act 2016

Schedule 1 - Increased HELP loan limit for specified aviation courses

Summary

The amendments to HESA in Schedule 1 to the Bill will commence on 1 January 2020, immediately after the commencement of Schedule 3 to the Student Loan Sustainability Act.

Schedule 1 to the Bill will amend HESA to introduce a measure that allows students undertaking certain aviation courses of study to have access to the higher HELP loan limit of $152,700 from 1 January 2020.

This measure was announced as part of the 2019-20 Budget, which addresses aviation stakeholder and student concerns that the lower HELP loan limit of $106,319 for 2020 is too low. The lower HELP loan limit does not enable students to cover the full tuition fees for courses that enable them to obtain the licence and ratings required by Civil Aviation Safety Authority for a Commercial Pilot Licence for most practical commercial aviation employment.

The Minister will be able to determine, through the FEE-HELP Guidelines (a legislative instrument made under HESA), the aviation courses for which the higher HELP loan limit will apply. These will be courses that enable a person to qualify for a Commercial Pilot Licence, and will be based on the courses specified in Schedule 2 to the VET Student Loans (Courses and Loan Caps) Determination 2016 (which sets out high-cost VET courses for which a VET student loan cap of $75,000 ($77,571 in 2019) applies).

Detailed explanation

Part 1 - Amendments

Higher Education Support Act 2003

Items 1, 2 and 3 - Increased HELP loan limit for specified aviation courses

Section 128-20 is inserted into HESA by the Student Loan Sustainability Act, on 1 January 2020, as part of the measure to expand current limits on HELP loans under HESA to include HECS-HELP assistance. In doing so, the concepts of FEE-HELP limit and FEE-HELP balance are being replaced by the concepts of HELP loan limit and HELP balance, respectively. Section 128-20 will set out a person's HELP loan limit.

Currently, there are two HELP loan limits, a loan limit of $152,700 for persons enrolled in courses of study in medicine, dentistry or veterinary science; and a loan limit of $106,319 for persons enrolled in other courses of study. (These are the loan limits that apply in 2020; the amounts are indexed each year).

Item 1 will repeal and replace section 128-20 of HESA. The effect of the amendment will be to expand the courses of study for which the higher ($152,700) HELP loan limit will apply. From 1 January 2020, that higher loan limit will also apply to persons enrolled in courses of study in aviation.

The courses of study in aviation to which the higher loan limit applies will be specified in the FEE-HELP Guidelines (subsection (2)). These will be courses that enable a person to qualify for a Commercial Pilot Licence.

Item 2 will amend the item in the table in subsection 238-10(1) of HESA that refers to the FEE-HELP Guidelines to include reference to the new subsection 128-20(2).

Item 3 will insert a definition of course of study in aviation in Schedule 1 to HESA (Dictionary), by reference to the new subsection 128-20(2).

Part 2 - Application and transitional provisions

Item 4 - Application of amendments

Item 4 provides that the new section 128-20 (which provides for the higher HELP loan limit to apply to persons enrolled in courses of study in aviation) will apply to persons enrolled in those courses, whether or not the course commenced before or after the commencement of the section. That is, the higher HELP loan limit will not only apply to persons who enrol in courses of study in aviation on or after 1 January 2020; a person who is currently enrolled in a course of study in aviation, and who continues to be so enrolled on and after 1 January 2020, will obtain the benefit of the higher HELP loan limit.

Item 5 - Transitional-indexation

Under Part 5-6 of HESA, the HELP loan limit is indexed every year on 1 January. The HELP loan limits specified in the new section 128-20 inserted by item 1 are already the HELP loan limits that would apply in 2020 if the amounts for 2019 were indexed on 1 January 2020 in accordance with Part 5-6. Item 5 ensures that the amounts specified in the new section 128-20 are not indexed under Part 5-6 on 1 January 2020 (which would, in effect, result in the HELP loan limit amounts for 2020 being amounts as if the amounts for 2019 were indexed twice).

Schedule 2 - HELP debt arrangements for very remote HELP debtors

Summary

The amendments to HESA in Schedule 2 to the Bill will commence on 1 January 2020, immediately after the commencement of Schedule 3 to the Student Loan Sustainability Act.

Schedule 2 to the Bill puts in place measures that are intended to assist teachers working in very remote locations in Australia ( very remote HELP debtors ) reduce the HELP loans that they incurred in acquiring their recognised initial teaching qualifications, and to pay off those loans faster.

The measures consist of the following:

·
reduced indexation of the HELP debts of very remote HELP debtors while they teach in very remote locations in Australia; and
·
remitting the whole of a very remote HELP debtor's outstanding HELP debt associated with their initial teacher education course, after they have undertaken an equivalent of 4 years' full-time work in very remote locations in Australia.

These measures give effect to the announcement by the Prime Minister on 14 February 2019 that teachers will be able to have their HELP debt remitted for their recognised initial teacher education course after they have been employed for four years as a teacher in a school in very remote location of Australia, and have indexation waived on their outstanding HELP debt while they are teaching at that school. 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.

Reduced indexation for very remote HELP debtors

A person's accumulated HELP debt represents the amount of the debt that a person has incurred to the Commonwealth at a particular point in time, based on the amount of assistance the person has been loaned under Chapter 3 of HESA and their repayments of those loans under Chapter 4 of HESA. Division 140 of HESA sets out how a person's accumulated HELP debt is worked out.

One element of a person's accumulated HELP debt is their former accumulated HELP debt, which is worked out under Subdivision 140-B of HESA. Every financial year, on 1 June, a person's former accumulated HELP debt is indexed by multiplying it by the indexation factor for that financial year. The indexation factor is worked out in accordance with the formula set out in section 140-10 (as the indexation is by reference to changes in the Consumer Price Index over four quarters, this is usually known as "CPI indexation").

Schedule 2 to the Bill will make amendments to Subdivision 140-B of HESA to change the way in which the indexation factor for a very remote HELP debtor is worked out, such that it is lower than the indexation factor applied to other persons' former accumulated HELP debts. A very remote HELP debtor's indexation factor for 1 June in a financial year will be reduced proportionately in line with the number of days in the previous calendar year that the very remote HELP debtor spent teaching in a very remote location. A teacher who worked the entire previous calendar year in a very remote location will end up with an indexation factor of 1 - meaning that, in substance, their former accumulated HELP debt will not be indexed at all that financial year. Further examples are set out below under item 7.

Debt reduction for very remote HELP debtors

Schedule 2 to the Bill will also make amendments to Subdivision 140-C of HESA to change the way in which a very remote HELP debtor's accumulated HELP debt is worked out. Once a teacher has worked in very remote locations in Australia for a certain period of time (currently, the equivalent of four years' full-time work), they will be able to apply to the Secretary for remission of their outstanding HELP debt incurred in studying for their recognised initial teacher education course. If they meet the requisite criteria, an amount equal to the HELP debts they have incurred for the units forming part of their initial teacher education course, or the amount of their outstanding HELP debt at the time they started teaching in a very remote location (whichever is lower), will be taken off their accumulated HELP debt.

Detailed explanation

Part 1 - Amendments

Higher Education Support Act 2003

Item 1 - At the end of section 128-25

Section 128-25 of HESA is inserted by the Student Loan Sustainability Act, and provides that the Secretary must re-credit a person's HELP balance by an amount equal to the amount that a person pays off their HELP debt under Chapter 4 in a financial year.

Item 1 will amend section 128-25 to include a new subsection (3), the effect of which will be that the Secretary must re-credit a very remote HELP debtor's HELP balance by the amount by which their accumulated HELP debt is reduced under new section 142-15.

Item 2 - Section 129-1 (after paragraph beginning "Under Part 4-2")

Section 129-1 of HESA sets out a summary of the operation of Chapter 4 of HESA. Item 2 will amend that summary to include text briefly explaining the operation of the new measures.

Item 3 - After section 134-1

Item 3 will insert a new section 134-5 into HESA that explains that matters relating to very remote HELP debtors may also be dealt with under the Very Remote HELP Debtor Guidelines. The Minister will make these Guidelines under section 238-10 of HESA, as amended by this Bill (see item 13).

The Very Remote HELP Debtor Guidelines will provide support to the operation of the very remote HELP debtors indexation and debt remittal measures, including by setting out:

·
circumstances in which a person is taken, or is not taken, to work as a teacher on a day (s 142-1(3)(a));
·
circumstances in which a person is taken, or is not taken, carry out work as a teacher at a school located in an very remote location (s 142-1(3)(b));
·
circumstances in which a person is taken, or is not taken, to be a very remote HELP debtor for a period (s 142-1(3)(c));
·
courses that are, or are not, courses of study in education (s 142-5(2)).

The Very Remote HELP Debtor Guidelines will also be able to set out criteria for being a very remote HELP debtor, and factors that the Secretary may have regard to in assessing whether a person is a very remote HELP debtor.

Item 4 - After paragraph 140-1(3)(c)

Section 140-1 is an outline of Division 140, which provides for how a person's accumulated HELP debt is worked out. Item 4 will amend subsection 140-1(3) to add a new paragraph (d), explaining that a person's accumulated HELP debt is reduced under the new section 142-15.

Items 5, 6, 7 and 8 - Reduced indexation for very remote HELP debtors

Section 140-10 of HESA sets out the method for determining the indexation factor for a person's former accumulated HELP debt. Items 6 and 7 will amend section 140-10 to provide for the method for working out the indexation factor of a very remote HELP debtor.

Item 6 amends subsection 140-10(1) so that a person who the Secretary has determined is a very remote HELP debtor for a financial year (under new subsection 142-10 - see item 11) has their indexation factor for that year worked out in accordance with subsection (1A) rather than the method statement in subsection (1).

Item 7 inserts a new subsection (1A) into section 140-10, which contains the formula for working out a very remote HELP debtor's indexation factor for a financial year. The effect of the formula is that a very remote HELP debtor's indexation factor is reduced in proportion to the number of days in the preceding calendar year that the Secretary has determined under section 142-10.

The following sets out some examples of how the indexation factor of a teacher working in schools in very remote locations will be worked out under the formula in subsection (1A).

Example 1 The indexation factor for the financial year 2019-20 worked out using the method statement in subsection 140-10(1) is 1.028. A teacher is placed in a very remote school for the whole 2019 school year. However, because of the operation of subitem 15(2) of Schedule 2 to the Bill, the first date on which a person can be a very remote HELP debtor for the indexation reduction provisions is 14 February 2019. Accordingly, under section 142-10, the Secretary determines that the teacher was a very remote HELP debtor for 321 days in 2019 (being the number of days in 2019 from 14 February to 31 December inclusive).Putting these numbers into the formula in subsection 140-10(1A), the teacher's indexation factor for the financial year 2019-20 is:

Teacher's indexation formula with Example 1 figures

or (rounded to three decimal places) 1.003.

Example 2 The indexation factor for the financial year 2020-21 worked out using the method statement in subsection 140-10(1) is 1.025. A teacher is placed in a very remote school for the last six months of the 2020 school year. Accordingly, under section 142-10, the Secretary determines that the teacher was a very remote HELP debtor for 184 days in 2020 (being the number of days in 2020 from 1 July to 31 December inclusive).Putting these numbers into the formula in subsection 140-10(1A), the teacher's indexation factor for the financial year 2020-21 is:

Teacher's indexation formula with Example 2 figures

or (rounded to three decimal places) 1.012.

Example 3 The indexation factor for the financial year 2020-21 worked out using the method statement in subsection 140-10(1) is 1.025. A teacher works as a replacement teacher in very remote schools intermittently during the 2020 school year, working in total some 12 weeks in very remote schools during the year. Under section 142-10, the Secretary determines that the teacher was a very remote HELP debtor for 84 days in 2020 (12 weeks x 7 days per week).Putting these numbers into the formula in subsection 140-10(1A), the teacher's indexation factor for the financial year 2020-21 is:

Teacher's indexation formula with Example 3 figures

or (rounded to three decimal places) 1.019.

Items 5 and 8 make minor amendments to paragraph 140-5(1)(b) and section 140-20 as a consequence of the amendments made by items 6 and 7.

Items 9 and 10 - Reduced accumulated HELP debt for very remote HELP debtors

Item 9 will replace the formula in subsection 140-25(1) of HESA that sets out how a person's accumulated HELP debt for a financial year is worked out. In substance, the new formula includes a new reduction in a person's accumulated HELP debt, being the very remote HELP debtor reduction.

Item 10 will insert a definition of very remote HELP debtor reduction in subsection 140-25(1) for the purposes of the new formula. A person's very remote HELP debtor reduction for a financial year is the amount by which the person's accumulated HELP debt is reduced as a result of a determination under new section 142-15 that is made on or after 1 June in the preceding financial year and before 1 June in that financial year.

Item 11 - New Division 142-Special measures for very remote HELP debtors

Item 11 will insert a new Division 142 in HESA. The new Division will enable the Secretary to determine that a person is a very remote HELP debtor:

·
for a financial year, for the purposes of reducing the person's indexation factor for that year; and
·
in relation to a course of study, for the purposes of reducing the person's accumulated HELP debt.

Section 142-1 - Meaning of very remote HELP debtor

New section 142-1 sets out the meaning of very remote HELP debtor. A person can be a very remote HELP debtor on a day if:

·
the person carries out work as a teacher on that day at a school located in an area classified as very remote Australia under the ABS Remoteness Structure (see item 14); and
·
the person has completed a course of study in education (see s 142-5); and
·
the person incurred a HECS-HELP debt or a FEE-HELP debt in relation to that course of study.

Subsection 142-1(2) defines a school as:

·
an early childhood education and care service that includes a preschool education program;
·
a preschool;
·
a school providing primary or secondary education.

Therefore, the measures extend to teachers teaching in early childhood education settings, as well as teachers teaching in primary and secondary schools.

Under subsection (3), the Very Remote HELP Debtor Guidelines will be able to set out when a person is taken to have carried out work on a day, when a person is taken to have carried out work at a particular location, and when a person is taken to have been a very remote HELP debtor for a period. The intention of this provision is to enable flexibility in administration of the measures, in particular:

·
by enabling a person to be treated as carrying out work on a day that they were not in fact carrying out work, for example, on a weekend, or during a period of leave;
·
by enabling a person to be treated as carrying out work in a very remote location when in fact they were not physically present in that location; and
·
by enabling a person to be treated as a very remote HELP debtor for a period when they only undertook work in a very remote location for a proportion of that period.

Thus, for example, the Guidelines can provide that a teacher is treated as working every day in a year that they are placed in a very remote school, notwithstanding that they will not be normally working weekends or while they are on leave, and notwithstanding that for some periods in the year they may not be physically located in a very remote location (such as while they are on leave, or undertaking professional development somewhere else).

Similarly, for the purposes of working out for how long a teacher has been working in a very remote location in order to qualify for debt reduction under section 142-15, the Guidelines can provide that a part-time teacher is treated as working in a very remote location for a period that is proportionate to their part-time work hours - so, for example, if full-time work hours for a teacher is 40 hours per week, a teacher who works 25 hours per week in a very remote location for year can be treated as having worked in a very remote location for 25/40 (0.625) of a year.

Section 142-5 - Meaning of course of study in education

New section 142-5 will define the courses that a very remote HELP debtor must have completed for the purposes of the very remote HELP debtor indexation reduction and debt reduction measures.

A course of study in education is a course of study that meets the minimum academic qualification requirements for registration as a teacher by a State or Territory teacher registration authority. This will generally include:

·
undergraduate initial teacher education courses, such as a Bachelor of Education; and
·
undergraduate Bachelor degrees accompanied by postgraduate initial teacher education courses, such as a Graduate Diploma of Education.

However, State and Territory teacher registration requirements do vary slightly and do provide authorities some flexibility in accepting qualifications, and so there is a need to provide flexibility in defining the courses of study in education that enable a person to qualify for the very remote HELP debt measures. Accordingly, the Very Remote HELP Debtor Guidelines will be able, if necessary, to further refine which courses are or are not courses of study in education for those purposes.

Section 142-10 - Reducing indexation of accumulated HELP debts

New section 142-10 will enable the Secretary to determine that the indexation of a person's accumulated HELP debt for a financial year is to be reduced. In order to do so:

·
the person must have an accumulated HELP debt on 1 June in that financial year;
·
the Secretary must be satisfied that the person was a very remote HELP debtor for at least one day during the calendar year ending on 31 December in the financial year ( applicable calendar year ); and
·
the Secretary must be satisfied that the person has met any other requirements specified in the Very Remote HELP Debtor Guidelines.

Under subsection (4), a person may apply to the Secretary for a reduction of the indexation of their accumulated HELP debt for a financial year. The application must be in writing, in the form approved by the Secretary and accompanied by the information required by the Secretary, include the person's tax file number, and otherwise meet any requirements specified in the Very Remote HELP Debtor Guidelines. Information required by the Secretary may include evidence of a person's employment in a very remote location, including a contract or engagement letter with their employer.

The application needs to include the person's tax file number, as that information is essential for the administration of the debt reduction measure. Under Chapter 4 of HESA, administration of HELP debts is a matter for the Commissioner of Taxation (i.e. the ATO). Once the Secretary has determined that a person's HELP debt indexation is to be reduced for a financial year, the Secretary will need to provide the person's tax file number along with their other details to the ATO in order for the ATO to do the calculation of the person's indexation factor under the new subsection 140-10(1A) (see item 7) and apply that indexation to the person's former accumulated HELP debt for that year.

Under subsection (3), once the Secretary has received a person's application, the Secretary must determine whether to reduce the person's HELP debt indexation for a financial year within 28 days. As per subsection (2), if the Secretary decides that a person's debt indexation for a year is to be reduced, the Secretary must determine the number of days that the person was a very remote HELP debtor during the applicable calendar year. This number of days feeds into the formula in new subsection 140-10(1A) for calculating the person's indexation factor for the financial year.

Determinations by the Secretary that a person's HELP debt indexation is not to be reduced, and determinations by the Secretary of the number of days that a person was a very remote HELP debtor, are reviewable decisions (see item 12).

Section 142-15 - Reducing accumulated HELP debts

New section 142-15 will enable the Secretary to determine that a person's accumulated HELP debt is to be reduced in relation to a particular course of study. In order to do, the Secretary must be satisfied that the person:

·
has been a very remote HELP debtor for a period of 4 years, or periods totalling 4 years within a continuous 6 year period; and
·
has met such other requirements (if any) as are specified in those Guidelines.

The Secretary may only make such a determination once for a person in relation to a course of study in education (paragraph (1)(b)).

Under subsection (5), a person may apply to the Secretary for a reduction to their accumulated HELP debt. The application must be in writing, in the form approved by the Secretary and accompanied by the information required by the Secretary, include the person's tax file number, and otherwise meet any requirements specified in the Very Remote HELP Debtor Guidelines.

As for the indexation reduction measure (see section 142-10), the application needs to include the person's tax file number, as that information is essential for the administration of the debt reduction measure. Once the Secretary has determined that a person's accumulated HELP debt is to be reduced, the Secretary will need to provide the person's tax file number along with their other details to the ATO in order for the ATO to do the calculation of the person's accumulated HELP debt under the new subsection 140-25(1) (see items 9 and 10).

Under subsection (4), once the Secretary has received a person's application, the Secretary must determine whether to reduce the person's accumulated HELP debt within 28 days. If the Secretary decides that a person's debt is to be reduced, the amount of the reduction is worked out in accordance with subsection (2). That subsection provides that the amount by which a very remote HELP debtor's accumulated HELP debt is to be reduced is the lower of:

·
the sum of the HECS-HELP debts and FEE-HELP debts that the person has incurred for the units forming part of their course of study in education (or, where those units have exceeded 5.0 EFTSL, the debts incurred for the first 5.0 EFTSL-worth of units); and
·
the person's accumulated HELP debt at the start of the period during which the person was a very remote HELP debtor.

Because the amount worked out under subsection (2) might be more than the person's accumulated HELP debt when they apply for debt remittal, it is possible for the person's accumulated HELP debt to be reduced below $0 (see subsection (3)). In some cases, this might mean the person receives a HELP debt refund from the ATO (see s 142-20)).

Determinations by the Secretary that a person's HELP debt is not to be reduced, and calculations of the amount by which a person's HELP debt is to be reduced, are reviewable decisions (see item 12).

Section 142-20 - Refunding amounts

It is possible that, for some very remote HELP debtors, the amount by which their accumulated HELP debt is reduced under subsection 142-15 exceeds the current amount of their HELP debts and tax debts. Just as if the person had made a voluntary repayment of their HELP debts under Division 151 of HESA that exceeds the current amount of those debts and their tax debts, the person will become entitled to a refund of the excess.

New section 142-20 replicates the operation of section 151-15 in these circumstances, by obliging the Commonwealth to refund the person the amount by which the HELP debt reduction amount under section 142-15 exceeds their HELP debts and tax debts. These refunds will be administered by the ATO, and in the ordinary course of events, will be paid to the person after their income tax for the financial year in which the HELP debt reduction has been applied has been assessed.

The standing appropriation in section 238-12 of HESA will appropriate money from Consolidated Revenue Fund for the purpose of making those refunds.

Item 12 - Section 206-1 (after table item 2A)

Item 12 will amend the table in section 206-1 of HESA to provide that the Secretary's determinations under new sections 142-10 and 142-15 are reviewable decisions.

Item 13 - Subsection 238-10(1) (after table item 8)

Subsection 238-10(1) sets out the various Guidelines that the Minister is able to make under HESA, as well as the various provisions in the Act that relate to the making and content of those Guidelines. Item 13 will amend the table in that subsection to include the Very Remote HELP Debtor Guidelines.

Item 14 - Subclause 1(1) of Schedule 1

Item 14 will insert a new definition of ABS Remoteness Structure and new signpost definitions of course of study in education and very remote HELP debtor in Schedule 1 to HESA (Dictionary).

Part 2 - Application and transitional provisions

Item 15 - Application of amendments

Item 15 sets out how the very remote HELP debtor measures will apply.

Subitem 15(1) provides that the amendments to the way in which a person's indexation factor for a financial year is to be calculated apply in relation to the 2019-20 financial year and each later financial year.

Subitem (2) provides that, for the purposes of subsection 142-10(2), a day that occurs before 14 February 2019 must not be counted towards the number of days that a person is a very remote HELP debtor in 2019. In practice, this means that a person's indexation factor for the 2019-20 financial year is only reduced by the proportion of the period between 14 February and 31 December 2019 inclusive that they worked in a very remote location.

Subitem (3) provides that new section 142-15 applies in relation to courses of study completed at any time. However, subitem (4) also provides that the Secretary must not determine that a person was a very remote HELP debtor, for the purposes of section 142-15, in respect of a period starting before 1 January 2019. In practice, this means that the period of time that a person must have worked in a very remote location in order to obtain the benefit of the HELP debt reduction measure cannot start before 1 January 2019. So, for example, in the case of a teacher who will have to work in a very remote location for at least four years in order to obtain the benefit of the HELP debt reduction measure, the teacher will not be eligible for a reduction in their accumulated HELP debt until the end of 2023, at the earliest.

Schedule 3 - Other amendments

Summary

Transforming the Collection of Student Information (TCSI)

Australian higher education providers and vocational education and training providers (education providers) currently supply a broad range of data to the Department of Education ( Education ) and the Department of Employment, Skills, Small and Family Business ( Employment ) to enable the Commonwealth to administer HESA and the VSL Act. This data is managed under section 19-70 and Part 5-4 of HESA, clauses 23 and 24 and Division 14 of Schedule 1A to HESA, and sections 53 and 54 and Part 9 of the VSL Act.

Education providers also supply data to the Department of Human Services ( Human Services ). Human Services uses the data to determine the ongoing eligibility of students for income support payments, such as Youth Allowance (student), Austudy and ABSTUDY.

There is some duplication in data supplied by education providers to Education, Employment and Human Services. The Government has agreed to rationalise the reporting requirements so that education providers report student data once through one mechanism and this data is then accessed by Education, Employment and Human Services as needed for the purposes of administering the laws and programs for which they are responsible.

The legal consequence of the process by which an education provider satisfies its reporting requirements under the social security law, HESA and the VSL Act by providing the information once into a central data repository, is that much of the same information becomes subject to multiple information management and protection regimes under those laws. There is therefore a need to ensure that the use and disclosure of the information in that central data repository is authorised by those laws for the various intended uses.

In relation to information collected under or for the purposes of the social security law - so-called "protected information" - the intention is to utilise the existing mechanisms in the social security law to authorise Education and Employment to use and disclose that information for purposes relating to the administration of HESA and the VSL Act - see, for example, subparagraph 208(1)(b)(i) of the Social Security (Administration) Act 1999 and subparagraph 343(1)(b)(i) of the Student Assistance Act 1973.

However, the current information protection provisions in HESA and the VSL Act do not permit the use and disclosure of personal information collected under or for the purposes of those Acts to be disclosed to, and used by, Human Services for the purposes of administering the social security law or developing or implementing related welfare policy.

Other minor information reporting amendments

The VSL Act contains provisions that make it an offence to disclose VET information in certain circumstances (sections 99 and 100). Those provisions also outline circumstances where the offence will not apply, including where the disclosure is authorised by an enactment of the Commonwealth, a State or a Territory. As a matter of best practice, Education and Employment will often seek the individual's consent prior to any use or disclosure of that individual's information. The offence provisions need to be amended to recognise the capacity for an individual to provide consent for the use or disclosure of their information.

Similarly, section 179-10 of HESA and clause 73 in Schedule 1A to HESA provide that an officer commits an offence if the officer discloses (or makes a copy or other record of) personal information that was acquired in the course of official employment, and the disclosure, copy or record was made outside of the course of official employment. Unlike the VSL Act, however, Division 179 and clause 73 in Schedule 1A to HESA do not outline circumstances where the offence would not apply. HESA does authorise certain uses and disclosures under Division 180, but it does not authorise the use and disclosure of HESA information where it is authorised under another enactment or where the individual provided consent to the use and disclosure of their personal information.

Minor technical updates and corrections

Amendments to HESA will also be made to implement technical and minor updates to correct higher education provider names and amend definitions.

Detailed explanation

Part 1 - Amendments commencing 1 January 2019

Higher Education Support Legislation Amendment (Student Loan Sustainability) Act 2018

Item 1 - Item 2 of Schedule 4

Subsection 137-10(2) of HESA was repealed and replaced on 1 January 2019 by Part 1 of Schedule 4 to the Student Loan Sustainability Act. Item 2 of Schedule 4 of that Act is an application provision for the amendment to subsection 137-10(2), and it currently provides:


The amendments of section 137-10 of the Higher Education Support Act 2003 made by Part 1 of this Schedule apply in relation to a loan made on or after 1 January 2019.

The reference in that item to "a loan made on or after 1 January 2019" is an error. Under subsection 137-10(3) of HESA, a person incurs a FEE-HELP debt in relation to a unit of study immediately after the census date for the unit. The amendments made to subsection 137-10(2) made by Part 1 of Schedule 4 to the Student Loan Sustainability Act affect the amount of FEE-HELP debt that a person incurs in relation to a unit of study on the census date of a unit. Accordingly, the application provision in Item 2 of Schedule 4 of the Student Loan Sustainability Act should refer to the unit of study and its census date.

Consequently, item 1 will replace the words "a loan made" in Item 2 of Schedule 4 of the Student Loan Sustainability Act with the words "a unit of study if the census date for the unit is".

Part 2 - Amendments commencing on Royal Assent

Higher Education Support Act 2003

Items 2, 3, 4, 5 and 6 - Subsection 16-15(1) (table) and subsection 16-20(1) (table)

Subsection 16-15(1) of HESA lists certain higher education providers as Table A providers; subsection 16-20(1) lists certain higher education providers as Table B providers. A number of these providers have changed their names over recent years. Although the name changes has not affected these providers' status as higher education providers under HESA (see e.g. section 25B of the Acts Interpretation Act 1901), the opportunity is being taken to update their names in sections 16-15 and 16-20.

Items 7, 8, 9 and 10 - Consent and lawful authority exceptions to offences of using or disclosing personal information

Section 179-10 of HESA creates an offence for an officer to disclose, copy or make a record of personal information collected by an officer in their course of their official employment, except in the course of the officer's official employment. The offence currently has no other express exceptions[1].

Item 10 will insert subsections (2), (3) and (4) in the section to provide further exceptions to the offence.

Subsection 179-10(2) provides an exception if the person to whom the personal information relates has consented to the disclosure, or the making of the copy or record.

As a matter of best practice, the Commonwealth will often seek the individual's consent prior to any use or disclosure of that individual's information where possible.

Subsection 179-10(2) recognises situations where an individual (whose information is proposed for use or disclosure) has provided consent for that use or disclosure, by making that consent an exception to the offence under subsection 179-10(1).

Subsection 179-10(3) provides an exception if the disclosure, or the making of the copy or record, is authorised or required by a law of the Commonwealth, such as the authorising provisions under Division 180 of HESA.

Subsection 179-10(4) provides an exception if the disclosure, or the making of the copy or record, is authorised or required by a law of a State or Territory, provided that the disclosure, or the making of the copy or record relates to the administration, regulation or funding of education; or is specified in the Administration Guidelines for the purposes of paragraph 179-10(4)(b).

New subsections 179-10(3) and (4) align section 179-10 with the more modern information protection provision in section 99 of the VSL Act.

Item 7 will amend the description of Division 179 of HESA in section 179-1 to reflect the amendments to section 179-10; items 8 and 9 have the effect of making the current content of section 179-10 a subsection (1), to account for the insertion of new subsections (2) to (4) by item 14.

Item 11 - Paragraph 179-15(4)(a)

Subsection 179-15(4) defines the meaning of official employment for the purposes of HESA. The term is used throughout Divisions 179 and 180 of HESA (which relate to information management) to set out generally the purpose for which information collected or created for the purposes of HESA can be used or disclosed - that is to say, in the course of an officer's official employment.

Item 11 will amend paragraph 179-15(4)(a), which defines what is meant by the official employment of a Commonwealth officer, to clarify that the official employment of a Commonwealth officer includes performing functions and duties, and exercising powers under, the VSL Act.

This corrects an oversight created when the VSL program replaced the VET FEE-HELP scheme under Schedule 1A to HESA. The VET FEE-HELP program was part of the HELP, and information collected or created for the purposes of administering VET FEE-HELP was simply part of the information collected or created for the purposes of the HELP. When the VSL program was established, it was administered in practice as part of the HELP, and the VSL Act enables Commonwealth officers to use and disclose information collected or created for the VSL program for administration of HELP (see section 91 of the VSL Act).

Item 12 - Disclosure of certain information to certain agencies

Item 12 will give effect to the TCSI data sharing arrangements by allowing the Secretary to authorise the disclosure of HESA information to an agency administered by a Minister that administers any of the following Act:

·
the Human Services (Centrelink) Act 1997;
·
the Social Security Act 1991;
·
the Student Assistance Act 1973;

for the purposes of that agency.

Consequently, an officer of the recipient agency - for example, the Department of Human Services - will be authorised to use HESA information for the purposes of the relevant agency.

For example, the Secretary will be able to pass HESA information to the Department of Human Services where that information will be of use in the administration of the social security law, being one of the functions of that agency. This power will not rely on the exercise of any power by the Department of Human Services under the social security law to 'collect' the information.

The Secretary will also be authorised to disclose HESA information to an agency administered by a Minister that administers a provision of Commonwealth law specified in the Administration Guidelines for the purposes of exercising power or performing functions or duties of that agency.

Items 13, 14, 15 and 16 - At the end of clause 71 of Schedule 1A

These items amend clauses 71 and 73 of Schedule 1A to HESA in the same ways as items 7, 8, 9 and 10 amend sections 179-1 and 179-10 of HESA.

Items 17 and 18 - Definitions

Items 17 and 18 will make minor amendments to subclause 1(1) of Schedule 1 to HESA (the Dictionary), to amend or repeal definitions.

Item 17 repeals the term Australian Qualifications Framework Register , which is no longer necessary. The term appeared in a number of other definitions which were repealed in 2012.

Item 18 will replace paragraph (c) of the definition of higher education award , so that it refers to an award offered or conferred by a higher education provider, other than an award offered or conferred for completing a VET course. Paragraph (c) of the definition currently refers to "any other award specified as a higher education award in the Australian Qualifications Framework [AQF]". The AQF no longer refers to higher education awards, and classifies educational qualifications by a different methodology (Levels 1 to 10).

VET Student Loans Act 2016

Items 19 and 20 - At the end of subsection 93(2)

Items 19 and 20 give effect to the TCSI data sharing arrangements by allowing the Secretary to disclose VET information to an agency administered by a Minister that administers any of the following Acts:

·
the Human Services (Centrelink) Act 1997;
·
the Social Security Act 1991;
·
the Student Assistance Act 1973;

for the purposes of that agency.

Consequently, an officer of the recipient agency will be authorised to use VET information for the permitted purposes.

The Secretary will be authorised to disclose VET information to an agency administered by a Minister that administers a provision of Commonwealth law specified in the rules for the purposes of exercising power or performing functions or duties of that agency.

Items 21, 22 and 23 - Consent exception to offence of using or disclosing personal information

Section 99 of the VSL Act creates an offence for a person who is or has been an officer to disclose or use personal information obtained or generated by them. Section 100 creates an offence for a person to use or disclose personal information that was disclosed to an agency, person or body under section 95 of the VSL Act other than for the purposes for which it was disclosed to the agency etc. It is a defence to either offence if the use or disclosure was permitted under law.

Items 21, 22 and 23 will insert provisions in sections 99 and 100 to provide a further defence to the offences if the person to whom the personal information relates has consented to the disclosure, or the making of the copy or record. This will bring the provisions into line with the equivalent provisions in HESA (see items 7 to 10 and 13 to 16 above).

As a matter of best practice, the Commonwealth will often seek the individual's consent prior to any use or disclosure of that individual's information where possible. New subsections 99(3), 100(2A) and 100(3) recognise situations where an individual (whose information is proposed for use or disclosure) has provided consent for that use or disclosure, by making that consent an exception to the offence under subsections 99(1), 100(1) and 100(3).

Item 24 - Application of amendments

Item 24 is an application provision that makes it clear that the amendments to the information management provisions in HESA and the VSL Act made by items 7 to 16 and 19 to 23 apply to disclosure, records and copies of information whether the information was obtained before or after commencement of those amendments.


Chapter 2 to the Criminal Code sets out general principles of criminal responsibility, including generally-applicable defences, for criminal offences in Commonwealth laws.


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