Student Identifiers Amendment (Enhanced Student Permissions) Bill 2019 [2019] AUSStaCSBSD 163 (5 December 2019)

• Student Identifiers Amendment (Enhanced Student Permissions) Bill 2019
• Significant matters in delegated legislation 27
• Merits review28

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Student Identifiers Amendment (Enhanced Student Permissions) Bill 2019

Purpose	This bill seeks to amend the Student Identifiers Act 2014 to: • expand the range of entities that may request access to an individual's authenticated vocational education and training transcript; • create a civil penalty and infringement notice regime; • allow the Student Identifiers Registrar's to grant exemption to the requirement to hold a Unique Student Identifier; and • make minor technical changes in relation to funds held in the Student Identifiers Special Account
Portfolio	Employment, Skills, Small and Family Business
Introduced	House of Representatives on 28 November 2019

Significant matters in delegated legislation ^[27]

1.58 Subsection 53(1) of the Student Identifiers Act 2014 provides that a registered training organisation must not issue a VET qualification or statement of attainment to an individual if the individual has not been assigned a student identifier. The bill seeks to insert proposed subsection 53(5), which provides that an individual may request that the Student Identifiers Registrar (the Registrar) make a determination that subsection 53(1) does not apply to the individual. Proposed subsection 53(9) provides that the minister may, by legislative instrument, determine the matters that must be considered by the Registrar when making a determination, and proposed subsection 53(12) provides that before making a legislative instrument, the minister must obtain the agreement of the Ministerial Council.

1.59 The committee's view is that significant matters, such as the matters to be considered when making a determination to exempt a student from the requirement to have a student identifier, should be included in the primary legislation unless a sound justification for the use of delegated legislation is provided. In this instance, the explanatory memorandum does not address why it is necessary or appropriate to leave the matters to be considered when making a determination to delegated legislation, merely restating the operation of the provision. It is unclear to the committee why the relevant matters could not be included in the primary legislation. The committee notes that a legislative instrument, made by the executive, is not subject to the full range of parliamentary scrutiny inherent in bringing proposed changes in the form of an amending bill.

1.60 The committee's view is that significant matters, such as the matters that must be considered by the Registrar when making a determination to exempt a student from the requirement to have a student identifier, should be included in primary legislation unless a sound justification is provided. The committee therefore requests the minister's more detailed advice as to:

• why it is considered necessary and appropriate to leave the matters to be considered when making a determination under proposed subsection 53(6) to delegated legislation; and

• whether it would be appropriate for the bill to be amended to set out at least high-level guidance in relation to the relevant matters on the face of the primary legislation.

Merits review^[28]

1.61 The Student Identifiers Act 2014 provides for certain decisions of the Registrar to be reviewed by the Administrative Appeals Tribunal (AAT); however, the bill does not provide for a determination by the Registrar under proposed subsection 53(6) to be reviewed by the AAT.

1.62 The committee considers that, generally, administrative decisions that will or are likely to, affect the interests of a person should be subject to independent merits review unless a sound justification is provided. The explanatory memorandum states:

Exclusion of merits review for decisions made by the Registrar is justifiable in order to meet legitimate policy objectives in the Act. Currently the number of individuals seeking an exemption in the VET sector under the Act is negligible in comparison to the number of student identifiers issued by the Registrar each year. The inclusion of merits review would not be an efficient use of Commonwealth resources where the cost of merits review would be greatly disproportionate to the number of individuals requesting exemptions. Also, external merits review at the Administrative Appeals Tribunal may have the disadvantage of delaying outcomes for an individual which may impact on whether an individual can enrol in a course that would lead to a VET qualification or VET statement of attainment.^[29]

1.63 The committee appreciates that certain decisions may be unsuitable for merits review – including decisions which have such limited impact that the costs of review cannot be justified. However, the committee considers that this justification is only appropriate in circumstances where the cost of providing merits review would be vastly disproportionate to the significance of the decision under review, not where the number of individuals seeking merits review is likely to be proportionately low in comparison to the number of applicants under the relevant scheme.^[30] The committee notes that a refusal by the Registrar to make a determination under proposed subsection 53(6) may potentially have a significant impact on an individual as it may prevent a registered training organisation from issuing that individual a VET qualification or statement of attainment.

1.64 Additionally, the committee considers that the fact that external review may delay outcomes for an individual is a factor that may be considered by the individual when considering whether to seek independent merits review. The committee does not consider that this is an appropriate justification for the exclusion of independent merits review in circumstances where the relevant determination will affect the rights or interests of an individual.

1.65 The committee requests the minister's more detailed advice as to why merits review will not be available in relation to determinations by the Registrar under proposed subsection 53(6). The committee's consideration of this matter would be assisted if the minister's response identified established grounds for excluding merits review, as set out in the Administrative Review Council's guidance document, What decisions should be subject to merit review?.

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[27] Schedule 1, item 15. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv).

[28] Schedule 1, item 15. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iii).

[29] Explanatory memorandum, p. 11.

[30] See Administrative Review Council, What Decisions Should be Subject to Merits Review (1999) available online at https://www.ag.gov.au/LegalSystem/AdministrativeLaw/Pages/practice-guides/what-decisions-should-be-subject-to-merit-review-1999.aspx.