Higher Education (HELP Program Commonwealth Officers) Instrument 2017 [F2017L00622]-Concluded matters [2017] AUSStaCSDLM 328 (16 August 2017)

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Instrument	Higher Education (HELP Program Commonwealth Officers) Instrument 2017 [F2017L00622]
Purpose	Specifies 'HELP program Commonwealth officers' for the purposes of paragraph 180-28(7)(c) of the Higher Education Support Act 2003
Authorising legislation	Higher Education Support Act 2003
Department	Education and Training
Disallowance	15 sitting days after tabling (tabled Senate 13 June 2017) The time to give a notice of motion to disallow expired on 5 September 2017
Scrutiny principle	Standing Order 23(3)(a)
Previously reported in	Delegated legislation monitor 8 of 2017

Sub-delegation

The committee previously commented as follows:

Section 4 of the instrument specifies the Australian Government Actuary (AGA) and Commonwealth officers employed by the Office of the AGA as 'HELP program Commonwealth officers' for the purposes of paragraph 180-28(7)(c) of the Higher Education Support Act 2003 (HESA Act). While the committee acknowledges that subsection 180-28(8) of the HESA Act permits the minister to specify such officers, the term 'Commonwealth officer' is defined very broadly in the HESA Act.

The committee's expectations in relation to sub-delegation accord with the approach of the Senate Standing Committee for the Scrutiny of Bills, which has consistently drawn attention to legislation that allows delegations to a relatively large class of persons, with little or no specificity as to their qualifications or attributes. Generally, a limit should be set in legislation on either the sorts of powers that might be delegated or on the categories of people to whom powers might be delegated; and delegates should be confined to the holders of nominated offices or to members of the senior executive service. In the absence of specific qualification requirements of a delegate, the committee expects instruments to include a general requirement that the person delegating a power be satisfied that a delegate has the appropriate qualifications or attributes to perform the delegated functions.

With respect to specifiying 'Commonwealth officers' employed by the AGA, the ES states:

Commonwealth officers employed by the Office of the Australian Government Actuary are included in this determination to ensure designated officers within that Office are able to use and disclose HESA information.

However, the ES provides no further justification for the need to specify all 'Commonwealth officers' employed by the AGA as 'HELP program Commonwealth officers' who, pursuant to subsection 180-28(5) of the HESA Act, may use and disclose HESA information to assist in the development or administration of the higher education loan program.

The committee requested the advice of the minister in relation to the above.

Minister's response

The Minister for Education and Training advised:

The purpose of the Instrument is to allow various officers employed by the AGA to be able to use and disclose Higher Education Support Act information (HESA information) for the purpose of maintaining a Higher Education Loan Program (HELP) debtor and earnings database. The HELP debtor and earnings database is important to the Department of Education and Training (Education) because it addresses recommendations in the Australian National Audit Office's (ANAO) report on the Administration of Higher Education Loan Program Debt and Repayments (report no. 31 of 2015-16, published on 5 May 2016). The ANAO recommended that 'Education and the Australian Taxation Office (ATO) expand the information provided publicly to include a broader range of information such as the growth in HELP debt and collection of repayments' (Recommendation 4) and that 'Education more fully analyses characteristics of debt and repayments, and consider this information to inform program design' (Recommendation 5).
The HELP debtor and earnings database is created from data provided by the AGA, Education and the ATO. The database contains de-identified information on HELP debtors, including demographic, educational, income and occupation-related information. Information from the HELP debtor and earnings database will enhance Education's ability to analyse HELP debt and debtors, including analysing differences between those who repay and those who are below the repayment threshold. Information from the HELP debtor and earnings database will be critical in addressing the abovementioned ANAO recommendations.
The specification of 'Commonwealth officers' employed by the AGA as 'HELP program Commonwealth officers' must be sufficiently broad as to capture the various classes of officers employed by the AGA who need to use and disclose HESA information in the development, use and maintenance of the HELP debtor and earnings database at any time. There is a need to specify all 'Commonwealth officers' employed by the AGA as 'HELP program Commonwealth officers' in the instrument as the AGA is
a small functional unit that does not have sufficiently well-defined positions and hierarchies to allow further specificity within the instrument. As the AGA employs a small number of officers (currently 12 individuals) who all have similar qualifications, skill sets and job roles, this makes it impractical to limit delegation to a specific sub-set of these Commonwealth officers. The Instrument must be sufficiently flexible to allow for movement of specific AGA officers who are required to access, use and disclose HESA information from within the HELP debtor and earnings database. I am satisfied that the Commonwealth officers employed by the AGA hold the appropriate qualifications and attributes to perform the delegated functions and that the instrument is not excessively wide in its application.
I note the Committee's view that the term 'Commonwealth officer' is defined very broadly in subsection 179-15(2) of the Act. Such a broad delegation may bring into question whether a person's right to privacy is being limited to the extent that it expands the category of specified officers that are authorised to use and disclose personal information. However, I consider that there are existing safeguards in place that provide strong protections in relation to such privacy matters. The instrument's explanatory statement states that this delegation is limited to only those Commonwealth officers who are exercising functions identified in subsection 180-28(5) of the Act, namely to assist in the development or administration of the HELP program. All persons specified as 'HELP program Commonwealth officers' are bound by the Australian Privacy Principles (APPs) in the Privacy Act 1988 when dealing with personal information.
The APPs regulate how agencies may collect, use, disclose and store personal information and how individuals may access and correct personal information held about them.
Having regard to the matters noted above, I consider that the delegation has been drafted with the maximum level of specificity possible in relation to the term 'Commonwealth officer'. Therefore, I recommend that the Instrument be maintained in its current form.
Committee's response

The committee thanks the minister for his response and has concluded its examination of the above.

The committee notes the minister's advice that the specification of 'Commonwealth officers' employed by the AGA as 'HELP program Commonwealth officers' must be sufficiently broad as to capture the various classes of officers employed by the AGA who need to use and disclose HESA information in the development, use and maintenance of the HELP debtor and earnings database. The committee notes the minister's advice that the AGA is a very small unit that does not have sufficiently well-defined positions and hierarchies to allow further specificity within the instrument – but, importantly, that delegation will be limited to only those officers exercising the relevant functions under the Act.

The committee notes the minister's description of the safeguards in place in relation to privacy matters, and his advice that he is satisfied that these safeguards ensure the necessary protection of personal privacy.