EXPLANATORY STATEMENT
Issued by the authority of the Minister of Education
Higher Education Support Act 2003
Higher Education (Disclosure of Information to Other Bodies) Amendment Determination 2022
AUTHORITY
Subsection 180-25(4) of the Higher Education Support Act 2003 (‘the Act’) provides that the Minister may, by legislative instrument, make a determination in relation to a body or association for the purposes of paragraph 180-25(3)(d) of the Act, which provides that Higher Education Support Act information (‘HESA information’) may be disclosed to the persons employed or engaged by a body or association determined by the Minister.
Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument. The amendments to the Higher Education (Disclosure of Information to Other Bodies) Determination 2013 (‘the Principal Instrument’) made by this instrument rely on this provision.
PURPOSE AND OPERATION
The Higher Education (Disclosure of Information to Other Bodies) Amendment Determination 2022 (‘the Amendment Instrument’) amends the Principal Instrument to list the Australian Institute of Health and Welfare (‘AIHW’) and the Australian Institute for Teaching and School Leadership Limited (‘AITSL’) as bodies or associations for the purpose of paragraph 180-25(3)(d) of the Act.
Listing AIHW and AITSL as bodies or associations for the purpose of paragraph 180-25(3)(d) will enable the Secretary to disclose HESA information to persons employed or engaged by AIHW or AITSL.
This amendment allows the disclosure of HESA information to these bodies to support the Australian Teacher Workforce Data (‘ATWD’) collection, a collaborative initiative supported by all States and Territories to collect and link initial teacher education (‘ITE’) data with teacher workforce data to provide a longitudinal picture of the national workforce, support workforce planning and inform policy development.
AITSL is the project manager for the initiative and have engaged AIHW as the Accredited Integration Authority for ATWD. If a project requires the integration of Australian Government data, this linkage of data must be undertaken by an Accredited Integrating Authority, such as AIHW. To become accredited, the AIHW has met stringent criteria covering project governance, capability and data management. AIHW abides by the principles for data integration involving Australian Government data for statistical and research purposes, included in the AIHW Data Governance Framework 2021.
AIHW also upholds strict privacy and confidentiality requirements. The Australian Institute of Health and Welfare Act 1987 permits AIHW to release data safely and securely and AIHW also complies with the Privacy Act 1988. The use of AIHW as the Accredited Integration Authority to collect, link and store data received from the department and teacher regulatory authorities ensures the security and privacy of this data. This de-identified and linked data is made available to AITSL to prepare public reports on the teacher workforce.
REGULATORY IMPACT
The Office of Best Practice regulation has been consulted and advised that a regulatory impact statement is not required (OBPR22-02599).
COMMENCEMENT
The Amendment Instrument takes effect the day after it is registered on the Federal Register of Legislation.
CONSULTATION
In the negotiation of ongoing arrangements to share HESA information, the department as the data custodian undertook targeted consultation with AITSL and AIHW as the data users, and contacted each initial teacher education provider that submits data under the Act, to ensure the disclosure of HESA information will meet the objectives of the ATWD within the provisions of the Act.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Higher Education (Disclosure of Information to Other Bodies) Amendment Determination 2022
The Higher Education (Disclosure of Information to Other Bodies) Amendment Determination 2022 (‘the Amendment Instrument’) 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 Legislative Instrument
The Amendment Instrument amends the Higher Education (Disclosure of Information to Other Bodies) Determination 2013 (‘the Principal Instrument’) to list the Australian Institute of Health and Welfare (‘AIHW’) and the Australian Institute for Teaching and School Leadership Limited (‘AITSL’) as bodies or associations for the purpose of paragraph 180‑25(3)(d) of Higher Education Support Act 2003 (‘the Act’).
Listing AIHW and AITSL as bodies or associations for the purpose of paragraph 180-25(3)(d) of the Act will enable the Secretary to disclose Higher Education Support Act information (‘HESA information’) to persons employed or engaged by AIHW or AITSL.
This amendment allows the disclosure of HESA information to these bodies to support the Australian Teacher Workforce Data (‘ATWD’), a collaborative initiative supported by all states and territories to collect and link initial teacher education data with teacher workforce data to provide a longitudinal picture of the national workforce, support workforce planning and inform policy development.
AITSL is the project manager for the initiative and have engaged AIHW as the Accredited Integration Authority to collect, link and store data from the department and teacher regulatory authorities.
An Accredited Integration Authority is engaged when a project requires the integration of Australian Government data. To become accredited, the AIHW has met stringent criteria covering project governance, capability and data management and AIHW abides by the principles for data integration involving Australian Government data for statistical and research purposes, and the best practice guidelines. AIHW also upholds strict privacy and confidentiality requirements. The Australian Institute of Health and Welfare Act 1987 permits AIHW to release data safely and securely and AIHW also complies with the Privacy Act 1988.
The use of AIHW as the Accredited Integration Authority to collect, link and store data received from the department and teacher regulatory authorities ensures the security and privacy of this data. This de-identified and linked data is made available to AITSL to prepare public reports on the teacher workforce.
Human rights implications
Privacy and reputation
The Amendment Instrument engages the right to privacy under Article 17 of the International Covenant on Civil and Political Rights (‘ICCPR’). Article 17 of the ICCPR 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.
The right to privacy is engaged by the Amendment Instrument because it authorises the on-sharing of HESA information, which may include personal information, to persons engaged or employed by AIHW and AITSL.
The right to privacy under Article 17 can be permissibly limited in order to achieve a legitimate objective and where the limitations are lawful and not arbitrary. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the particular circumstances.
There are legitimate objectives for the proposed amendment as the disclosure of HESA information is for the purposes of improving the provision of higher education and for research relating to the provision of higher education, particularly relating to the education of teachers.
The Department is committed to the protection of privacy and must comply with the Australian Privacy Principles (‘APPs’) contained in the Privacy Act 1988 (‘the Privacy Act’) when handling any personal information and sensitive information.
The Department must also comply with the information management provisions setting out protections for the sharing of HESA information provided in Part 5-4 of the Act. The Act provides substantial protections for individuals’ privacy, including regulating the way in which the specified bodies can use and disclose the personal information. The Act provides that a person commits an offence if that person uses personal information or VET personal information for a purpose that was not a permitted purpose. In particular, one of the protections set out in the Act is that if the Secretary discloses HESA information to a person who is employed or engaged by a body or association determined by the Minister under the Principal Instrument, and if the information was provided by a higher education provider or a VET provider, then the Secretary may only disclose the information if the provider consents to that disclosure.
The disclosure of HESA information to persons engaged or employed by AIHW and AITSL to undertake linking and analysis will provide a better understanding of teacher workforce supply issues and an evidence base for better informed policy to support the teacher workforce nationally.
The Amendment Instrument is compatible with the right to privacy as the limitations to the right of privacy are reasonable, necessary and proportionate to achieving a legitimate objective, and there are appropriate safeguards and limitations to apply to the disclosure of HESA information.
Conclusion
The Amendment Instrument is compatible with human rights because it promotes the protection of the right to privacy, and to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.
The Hon Jason Clare MP, Minister for Education
HIGHER EDUCATION (DISCLOSURE OF INFORMATION TO OTHER BODIES) AMENDMENT DETERMINATION 2022
EXPLANATION OF PROVISIONS
Section 1: Name
- This is a formal provision specifying the name of the instrument as the Higher Education (Disclosure of Information to Other Bodies) Amendment Determination 2022
Section 2: Commencement
2. This provision provides that the instrument commences the day after the instrument is registered on the Federal Register of Legislation.
Section 3: Authority
3. This provision provides that the instrument is made under subsection 180-25(4) of the Higher Education Support Act 2003 (‘the Act’).
Section 4: Schedules
4. This is a technical provision that explains that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned.
SCHEDULE 1 – AMENDMENTS
Higher Education (Disclosure of Information to Other Bodies) Determination 2013
Item 1: Paragraph 6(d)
5. This item omits the word “and” from paragraph 6(d) of the Higher Education (Disclosure of Information to Other Bodies) Determination 2013 (‘the Principal Instrument’) to give effect to the amendments made in item 2.
Item 2: After paragraph 6(e)
6. Section 6 of the Principal Instrument specifies particular bodies or associations as being able to receive Higher Education Support Act information (‘HESA information’) for the purposes set out in subsection 180-25(1) of the Act.
7. This item inserts the Australian Institute of Health and Welfare and the Australian Institute for Teaching and School Leadership Limited into section 6 of the Principal Instrument. This amendment allow HESA information to be disclosed to a person who is employed or engaged by the Australian Institute of Health and Welfare and the Australian Institute for Teaching and School Leadership Limited for the purposes set out in subsection 180-25(1) of the Act.