Student Identifiers Amendment (Higher Education) Bill 2019 - Commentary on Ministerial Responses [2020] AUSStaCSBSD 43 (26 February 2020)

• Student Identifiers Amendment (Higher Education) Bill 2019

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Student Identifiers Amendment (Higher Education) Bill 2019

Purpose	This bill seeks to amend the Student Identifiers Act 2014 to enable the extension of the unique student identifier from vocational education and training to higher education students, and to enable the Student Identifiers Registrar to assign a student identifier to all higher education students
Portfolio	Education
Introduced	House of Representatives on 4 December 2019
Bill status	Before the Senate

Significant matters in delegated legislation

Privacy

2.58 In Scrutiny Digest 1 of 2020 the committee requested the minister's advice as to why it is necessary and appropriate to leave the requirements for when personal information can be disclosed to delegated legislation, and the appropriateness of amending the bill to set out the requirements on the face of the primary legislation.^[9]

Minister's response^[10]

2.59 The minister advised:

The Committee requested advice as to why it is considered necessary and appropriate to leave the requirements for when personal information can be disclosed under proposed subsections 18(3) and 25(3) to delegated legislation, and the appropriateness of amending the bill to set out these requirements on the face of the primary legislation.
Proposed subsections 18(3) and 25(3) provide that the disclosure of a student identifier or other personal information of a student by the Student Identifiers Registrar (Registrar) may be authorised if the use or disclosure of said information is for the purposes of research that relates, directly or indirectly, to the provision of higher education and meets the requirements I will specify in a legislative instrument made under proposed subsection 18(4) or 25(4).
The amendments proposed in the Bill mirror the current requirements of subsection 18(2) of the Student Identifiers Act 2014 (Act). This subsection allows the Registrar to use or disclose a student identifier of an individual for the purposes of research that relates (directly or indirectly) to education or training, or requires the use of student identifiers or information about education or training, and that meets the requirements specified by the Ministerial Council.
The Ministerial Council does not deal with higher education matters, and so the requirements they set out regarding the use and/or disclosure of a student identifier for research purposes are not appropriate for higher education students. In place of the Ministerial Council, new subsections 18(4) and 25(4) allow the Minister for Education to specify, by legislative instrument, requirements that must be met for the Registrar to disclose a student identifier (or other personal information) for purposes relating to research.
It is considered necessary and appropriate to include these requirements in delegated legislation to be consistent with existing practice in relation to the disclosure of student identifiers for research purposes, and to ensure sufficient flexibility in the development of these requirements.
It is important to note that the legislative instruments I make under these proposed provisions are legislative instruments for the purposes of the Legislation Act 2003 and, as such, are subject to the Parliamentary disallowance process. The disallowance process provides Parliamentary oversight and scrutiny over any legislative instrument made. I will also undertake appropriate consultation in making any legislative instrument.
Further, the Registrar cannot use or disclose student identifiers, or other personal information of students, under new subsections 18(3) and 25(3) unless I have made legislative instruments under new subsections 18(4) and 25(4). These legislative instruments will provide safeguards for students to ensure the use and disclosure of their student identifiers and other personal information for research purposes does not unnecessarily or unreasonably limit their right to privacy.

Committee comment

2.60 The committee thanks the minister for this response. The committee notes the minister's advice that it is considered necessary and appropriate to include the requirements that must be met for the Registrar to disclose a student identifier (or other personal information) in delegated legislation rather than primary legislation in order to be consistent with existing practice, and to ensure sufficient flexibility in the development of these requirements. The committee also notes the minister's advice that legislative instruments setting out the requirements for disclosure must be made before a student identifier or other personal information can be disclosed

2.61 While the committee notes this advice, the committee's consistent scrutiny view is that the desire for flexibility and consistency with existing practice alone is generally not a sufficient justification for including significant matters, such as the safeguards to protect an individual's personal information, in delegated legislation.

2.62 The committee draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of leaving the safeguards to protect an individual's personal information to be set out in delegated legislation, rather than on the face of the primary legislation.

2.63 The committee also draws this matter to the attention of the Senate Standing Committee for the Scrutiny of Delegated Legislation for information.

Significant matters in delegated legislation

2.64 In Scrutiny Digest 1 of 2020 the committee requested the minister's advice as to:

• why it is considered necessary and appropriate to leave the ability to exempt providers, awards and individuals from the requirement that an individual must have a student identifier to delegated legislation;

• why it is considered necessary and appropriate to leave the matters that must be considered by the Registrar when exempting individuals from the requirement to have a student identifier to delegated legislation; and

• the appropriateness of amending the bill to set out at least high-level guidance in relation to the relevant matters on the face of the primary legislation.

Minister's response

2.65 The minister advised:

Under the current law, section 53 of the Act provides that a registered training organisation must not issue a vocational education and training (VET) qualification or VET statement of attainment to an individual if the individual has not been assigned a student identifier, unless an "issue" applies. Currently, the Minister for Employment, Skills, Small and Family Business has the power to, with the agreement of the Ministerial Council, make a legislative instrument that specifies such "issues". The effect of this existing provision is to allow a legislative instrument to outline cases where an exemption to the requirement to hold a student identifier applies.
The Minister for Employment, Skills, Small and Family Business has made the Student Identifiers (Exemptions) Instrument 2018 (Exemptions Instrument) which sets out the circumstances in which an exemption may currently apply.
However, I note that section 53 of the Act, and any exemptions set out in the Exemptions Instrument, applies to the VET sector, and, as such, is not relevant to higher education students. It is proposed that the Act be amended to include new section 53A which will set out the exemptions application procedure for students in higher education. This provision will largely mirror the current arrangements for VET and the new arrangements being proposed in the Student Identifiers Amendment (Enhanced Student Permissions) Bill 2019. It is necessary and appropriate to include these matters in delegated legislation to be consistent with existing practice.
Further, allowing the matters that the Registrar must take into account when making an exemption decision to be included in a legislative instrument will ensure that the development and progression of the student identifier is adaptable to the evolving needs of students. This is important as new and genuine reasons justifying a student's exemption may emerge over time. As the cohort of students applying for student identifiers expands, it is essential that the reasons an exemption may be applied are adaptable and I have flexibility to respond to changing circumstances.
It is also important to note that in 2019, less than 20 students applied for an exemption to the requirement to hold a student identifier. As the subset of students who request an exemption is so small, the matters considered by the Registrar in granting an exemption have been varied and unique. In order to respond to the changing needs of students, it is not practical to broadly govern these matters in primary legislation.

Committee comment

2.66 The committee thanks the minister for this response. The committee notes the minister's advice that proposed section 53A will largely mirror the current arrangements that apply in the VET sector in relation to exemptions from the requirement to hold a student identifier. The committee also notes the minister's advice that allowing the matters that the Registrar must take into account when making an exemption decision to be included in a legislative instrument is necessary to ensure that the reasons an exemption may be applied are adaptable and flexible to respond to changing circumstances.

2.67 While the committee notes this advice, the committee's consistent scrutiny view is that the desire for flexibility and consistency with existing practice alone is generally not a sufficient justification for including significant matters in delegated legislation rather than primary legislation.

2.68 However, in this instance, the committee also notes the minister's advice that in 2019 less than 20 students applied for an exemption to the requirement to hold a student identifier. The minister further advised that because the subset of students who request an exemption is so small the matters considered by the Registrar in granting an exemption have been varied and unique, and it is therefore not practical to broadly govern these matters in primary legislation.

2.69 The committee requests that the key information provided by the minister be included in the explanatory memorandum, noting the importance of this document as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.70 In light of the detailed information provided, the committee makes no further comment on this matter.

Merits review

2.71 In Scrutiny Digest 1 of 2020 the committee requested the minister's advice as to why merits review will not be available in relation to determinations by the Registrar under proposed subsection 53A(6). The committee noted that it would be assisted if the minister's response identified established grounds for excluding merits review.

Minister's response

2.72 The minister advised:

The Committee has also asked for more detailed advice on why merits review will not be available in relation to determinations made by the Registrar under proposed subsection 53(A)6. Those determinations relate to applications from students for an exemption from the requirement to have a student identifier. There are a number of reasons why it is not considered appropriate for merits review to be available for students seeking an exemption.
Firstly, section 53A will operate primarily as a restriction imposed on higher education providers in respect of when they can and cannot issue a higher education award. Importantly, the ultimate determinative issue from a provider's or student's point of view is whether or not the award can be issued. If a student seeking an exemption is not granted one, rather than seeking a review of the decision through the Administrative Appeals Tribunal (AAT), the student can simply apply for a student identifier in order to receive their award. In this context, an exemption from the requirement to hold a student identifier is simply a procedural step along the way to an ultimate outcome of receiving an award.
It is notable, in this context, that one of the factors in the Administrative Review Council's guidance document helpfully referred to by the Committee (What decisions should be subject to merit review?) for when merits review may not be suitable is where the decision involves a preliminary or procedural decision (as discussed at paragraph 4.3-4.7 of the guidance document). As a step along the way to receiving a qualification or statement of attainment, an exemption decision under section 53A is in substance a preliminary or procedural step.
Secondly, it is important to ensure that the limited resources of the AAT are reserved for matters where genuine issues that turn on merits are in dispute. This is consistent with another factor referred to in the Administrative Review Council's guidance document, concerning decisions which have such limited impact that the costs of review cannot be justified. It is anticipated that the matters that will be included in the legislative instrument will be matters that will not lend themselves to factual dispute.
For instance, if, as currently exists for VET, the legislative instrument specifies circumstances where a person has expressed a genuine personal objection as a case where an exemption would apply, the facts in respect of that objection are not likely to be meaningfully in dispute before a merits review tribunal. Of course, judicial review, including under the Administrative Decisions (Judicial Review) Act 1977, will remain available to students or affected providers where the exemption decision has been made involving an error of law.
A merits review process also appears disproportionate to the nature of the decision and the instances of exemption requests. 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. The number of student identifiers issued in 2018 was 1,464,862 whilst only 24 applications for exemptions were received in the same year. No applications for exemptions were denied. Making decisions of the Registrar subject to merits review would not be an efficient use of Commonwealth resources as the cost of administering a merits review process would be greatly disproportionate to the number of individuals requesting an exemption.
Further, external merits review at the AAT may delay the outcome of the request for an individual by a number of years, delaying their award conferral and impacting their prospects of obtaining meaningful employment and greater career aspirations.
As the Registrar is obliged to make decisions based on fair and accountable reasoning, the decision to deny or allow an exemption would be carefully considered and denied only on appropriate grounds. As such, it would be time-consuming and costly to engage in de nova review of these decisions, and not highly beneficial or protective for the individual/s requesting an exemption.
The unique student identifiers application is a product and system designed solely to support the user's education journey, helping to maintain lifelong learning and pursue meaningful careers. An exemption to the requirement to have a student identifier would limit the individual's interaction and engagement with their tertiary study, and hinder their admissions processes to VET and higher education courses.

Committee comment

2.73 The committee thanks the minister for this response. The committee notes the minister's advice that the ultimate determinative issue from a provider's or student's point of view is whether or not a higher education award can be issued and that if a student seeking an exemption is not granted one, rather than seeking a review of the decision through the Administrative Appeals Tribunal (AAT), the student can simply apply for a student identifier in order to receive their award. The committee also notes the minister's advice that an exemption from the requirement to hold a student identifier is simply a procedural step along the way to an ultimate outcome of receiving an award.

2.74 The committee also notes the minister's advice that it is important to ensure that the limited resources of the AAT are reserved for matters where genuine issues that turn on merits are in dispute and that this is consistent with factors referred to in the Administrative Review Council's guidance document. The committee further notes that it is anticipated that the matters that will be included in the legislative instrument will be matters that will not lend themselves to factual dispute.

2.75 The committee requests that the key information provided by the minister be included in the explanatory memorandum, noting the importance of this document as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.76 In light of the detailed information provided, the committee makes no further comment on this matter.

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[9] Senate Scrutiny of Bills Committee, Scrutiny Digest 1 of 2020, pp. 26-30.

[10] The minister responded to the committee's comments in a letter dated 20 February 2020. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 3 of 2020 available at: www.aph.gov.au/senate_scrutiny_digest