House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Education, the Hon Jason Clare MP)

Statement of Compatibility with Human Rights

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

Education Legislation Amendment (2022 Measures No. 1) Bill 2022

The Education Legislation Amendment (2022 Measures No. 1) Bill 2022 (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 Education Legislation Amendment (2022 Measures No. 1) Bill 2022 (the Bill) amends the Higher Education Support Act 2003 (HESA) and also makes minor amendments to the Tertiary Education Quality and Standards Agency Act 2011 (TEQSA Act).

HESA is the main piece of legislation governing Commonwealth funding of higher education in Australia. HESA facilitates the provision of Commonwealth financial support to higher education providers through Commonwealth grants and provides loans to higher education students to cover their tuition and other fees.

The TEQSA Act establishes and governs the Tertiary Education Quality and Standards Agency (TEQSA), which regulates the higher education sector. The TEQSA Act provides for the regulation of the sector via a standards-based quality framework, including matters such as registration of providers and the accreditation of courses, and also addresses academic cheating, student protection and student access to information.

The Bill makes amendments to:

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amend the student identifier requirements for a person's eligibility to receive Commonwealth assistance;

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clarify the operation of the student learning entitlement provisions in respect of enabling courses (as defined in Schedule 1 of HESA);

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provide that domestic students undertaking a microcredential course (as defined in item 16 of Schedule 1 to the Bill) are eligible for FEE-HELP;

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clarify the operation of certain provisions and improve and update the operation of HESA and the TEQSA Act;

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reduce the amount of FEE-HELP debt incurred by students undertaking a unit of study in 2022 (FEE-HELP loan fee exemption);

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provide that New Zealand citizens are eligible for HECS-HELP and FEE-HELP only if they are resident in Australia for the duration of the unit; and

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remove a 10 per cent discount on up-front payments made by HECS-HELP students.

Human rights implications

The Bill engages the following rights:

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the right to education - Article 13 of the ICESCR

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

Article 13: Right to Education

The Bill engages the right to education, which is set out in Article 13 of the ICESCR. Article 13 recognises the important personal, societal, economic and intellectual benefits of education, and provides that secondary education in its different forms, including higher education, shall be made generally available and accessible to all by every appropriate means.

Part 1 of Schedule 1 to the Bill promotes the right to education by strengthening the student identifier requirements under HESA by improving the administration of Australia's tertiary education and training services. A robust student identifier system allows for accurate data collection and analysis in relation to Australia's higher education sector as students increasingly engage in lifelong learning and access a range of opportunities from both the vocational education and training and higher education sectors to obtain a wide range of skills, capabilities and knowledge. As such, amendments to strengthen the student identifier system promotes the right to education by strengthening and ensuring the ongoing quality of Australia's higher education sector.

Part 3 of Schedule 1 to the Bill promotes the right to education by allowing domestic students undertaking a unit that is part of a microcredential course to be eligible for FEE-HELP. This will encourage student interest in microcredential courses, incentivising providers and industry to develop and deliver courses in the microcredential pilot. The aim of the microcredential pilot is to provide the opportunity for a diverse range of Australian tertiary education institutions to develop and deliver Australian microcredentials that are learner-centred, meet industry standards and address critical Australian skills needs. Expanding eligibility for FEE-HELP loans to microcredentials increases access to flexible higher education options for populations who find current higher education offerings not suited to their needs, such as individuals with work, health or family commitments that preclude long periods of study.

Schedule 4 to the Bill removes the 10 per cent discount on up-front payments made by HECS-HELP students. While this measure may be perceived as restricting access to education as it increases the student contribution amount paid by an up-front paying student, this is not the case as students affected by this change are still able to defer their student contribution amounts through the HELP scheme and continue to access higher education. This measure ensures that all students are provided equal access to higher education, as it ensures that students choosing to defer their student contribution through the HELP scheme are not required to pay higher student contribution amounts than students choosing to pay their student contribution amount up-front.

This Bill is compatible with the right to education.

Article 17: Right to Privacy

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

Part 1 of Schedule 1 to the Bill includes the requirement for students to provide their personal information (in the form of their unique student identifier (USI)) to their higher education provider and the Secretary. USIs are already provided to both higher education providers and the Secretary through the request for Commonwealth assistance and through higher education providers' own administrative processes. The amendment to Part 1 of Schedule 1 enshrines the current practice and links a student's provision of their student identifier to eligibility for Commonwealth assistance. This provides clear authority under law for current administrative practice.

While the amendment to HESA in Part 1 of Schedule 1 will allow for higher education providers and the Secretary to collect students' personal information (in the form of their USI), HESA provides safeguards and limitations around the use of personal information collected under HESA. Specifically, Division 179 of Part 5-4 of HESA protects the use and disclosure of personal information obtained and created under the Act, providing a safeguard against improper use of personal information.

The Bill is compatible with and promotes the right to privacy by ensuring that appropriate safeguards and limitations apply to persons who use and disclose personal information collected under the amendments made by Bill.

Conclusion

The Bill is compatible with human rights because it promotes the right to education and does not further impact the right to privacy.