Higher Education (HELP Program Commonwealth Officers) Amendment Instrument (No. 1) 2017

EXPLANATORY STATEMENT

Issued by the Authority of the Minister for Education and Training

Higher Education Support Act 2003

Higher Education (HELP Program Commonwealth Officers) Amendment Instrument

(No. 1) 2017

Purpose

The Higher Education (HELP Program Commonwealth Officers) Amendment Instrument

(No. 1) 2017 (the Amending Instrument) amends the Higher Education (HELP Program Commonwealth Officers) Instrument 2017 (the Original Instrument). The Original Instrument specifies that the Australian Government Actuary (AGA), and Commonwealth officers employed by the Office of the AGA, are ‘HELP program Commonwealth officers’ for the purposes of paragraph 180-28(7)(c) of the Higher Education Support Act 2003 (the Act). These specified ‘HELP program Commonwealth officers’ are able to use and disclose Higher Education Support Act information (HESA information) for purposes specified in subsection 180-28(5) of the Act.

The Higher Education Loan Program (HELP Program) consists of grants to higher education providers under Part 2-2 of the Act, assistance provided to students under Chapter 3 or Schedule 1A of the Act, or under the VET Student Loans Act 2016 (VSL Act), and repayment of debts under Chapter 4 of the Act incurred in relation to that assistance (subsection 180‑28(6) of the Act).

The Amending Instrument amends the Original Instrument to specify additional employees and contractors of the Department of Education and Training (the Department), and taxation officers to be ‘HELP program Commonwealth officers’ who are authorised to use and disclose HESA information for the purposes referred to in subsection 180-28(5) of the Act. A taxation officer is defined to mean a Commonwealth officer who is a taxation officer as defined by section 355-30 of Schedule 1 to the Taxation Administration Act 1953 or to whom Division 355 of Schedule 1 applies due to the operation of section 355-15 of that Schedule.

The effect of the Amending Instrument is that these additional specified officers may use HESA information and disclose HESA information to other ‘HELP program Commonwealth officers’ to assist in the development of the HELP program, or the administration or future administration of the HELP program, including by (but not limited to) policy formation, financial planning and projection, program design and conducting research. In particular, these persons will be involved in processing and disclosing HESA information in the course of maintaining and using the HELP debtor and earnings database through which such information is to be stored, processed and analysed for these purposes.

Commonwealth officers engaged by the Department, and taxation officers, who require specification as ‘HELP program Commonwealth officers’, are responsible for a broad range of functions across multiple areas. This necessitates the class of Commonwealth officers added by the Amending Instrument to be defined broadly. The Commonwealth officers who require specification as ‘HELP program Commonwealth officers’ are responsible for:

• developing policy, undertaking financial planning and projections, maintaining and improving program design and conducting research on the HELP program. This includes analysing and understanding characteristics of HELP debtors who do and do not repay;
• conducting research on the HELP program, including analysing and reporting on aggregate graduate earning outcomes on the Quality Indicators for Learning and Teaching website;
• undertaking detailed statistical analysis on the HELP program and, where necessary, providing outputs to those officers responsible for policy development as described above;
• conducting research and detailed statistical analysis in relation to higher education graduate outcomes;
• administering the HELP program;
• performing necessary IT functions including those relating to the development, maintenance and use of the HELP debtor and earnings database; and
• performing various roles in relation to the provision of education, taxation and AGA data for the HELP debtor and earnings database, and appropriately handling such sensitive information.

Background

Division 180 of the Act authorises the use and disclosure of certain types of information obtained or created for the purposes of the Act, including some types of personal information. This information is collectively defined in section 180-5 of the Act as HESA information.

The Higher Education Support Legislation Amendment (2016 Measures No. 1) Act 2016 made amendments to the information management provisions in Division 180 of the Act, by inserting a new section 180-28 to authorise the use and disclosure of HESA information by ‘HELP program Commonwealth officers’. Subsection 180-28(9) provides that for the purposes of section 180-28, HESA information also includes VET information within the meaning of the VSL Act. VET information is information obtained or created for the purposes of the VSL Act. Section 180-28 was inserted into HESA to support the HELP debtor and earnings database that links data held by the Department with data held by the Australian Taxation Office (ATO) and AGA. This database improves the ability of designated officers to analyse HELP debt and debtors, facilitate better understanding of the factors affecting the HELP program, enable the impact of policy changes over time to be assessed, and assist in the future administration of the HELP program.

‘HELP program Commonwealth officer’ is defined in subsection 180-28(7) of the Act as meaning the Secretary (s180-28(7)(a)), the Commissioner of Taxation (s180-28(7)(b)), and ‘a Commonwealth officer specified to be a HELP program Commonwealth officer under subsection (8)’(s180-28(7)(c)). While the Secretary of the Department and the Commissioner of Taxation each hold powers as a ‘HELP program Commonwealth officers’, it is necessary for other Commonwealth officers to exercise these powers. To this end, subsection 180-28(8) of the Act provides that the Minister may, by legislative instrument, specify that a Commonwealth officer, or a Commonwealth officer in a specified class, is a ‘HELP program Commonwealth officer’ for the purposes of paragraph 180-28(7)(c). This enables the Minister to specify that certain Commonwealth officers are ‘HELP program Commonwealth officers’ through a legislative instrument in order to enable them to use and disclose HESA information for the purposes set out in subsection 180-28(5) of the Act. Relevantly, the definition of ‘Commonwealth officer’, for the purposes of the Act, includes:

• a person appointed or engaged under the Public Service Act 1999 (s179-15(2)(a) of the Act); and
• a person who, although not holding office under, or employed by, the Commonwealth, performs services for or on behalf of the Commonwealth (s179‑15(2)(d) of the Act).

Such persons may therefore be specified by the Minister as ‘HELP program Commonwealth officers’ under subsection 180-28(8). 

Consultation

The ATO was consulted in relation to how the Original Instrument, as amended, should describe those Commonwealth officers engaged as employees of the ATO under the Public Service Act 1999, or otherwise engaged by the ATO, to perform functions for the purposes set out in subsection 180-28(5) of the Act. As these arrangements are machinery in nature, and implement aspects of the Higher Education Support Legislation Amendment (2016 Measures No. 1) Act 2016, broader consultation was not undertaken in the preparation of this Amending Instrument.  

Regulatory Impact Statement
 

The Office of Best Practice Regulation (OBPR) was consulted in relation to the Amending Instrument and advised that a Regulatory Impact Statement is not required (OBPR ID: 22569).

The Amending Instrument is a legislative instrument for the purposes of the Legislation Act 2003.

Explanation of provisions:
 

Section 1 provides that the title of the Amending Instrument is the Higher Education (HELP Program Commonwealth Officers) Amendment Instrument (No. 1) 2017.

Section 2 provides that the Amending Instrument commences on the day after it is registered. Legislative instruments are registered on the Federal Register of Legislation.

Section 3 provides that the Amending Instrument is made under the authority of subsection 180-28(8) of the Act. Subsection 180-28(8) of the Act provides that the Minister may, by legislative instrument, specify that a Commonwealth officer, or a Commonwealth officer in a specified class, is a ‘HELP program Commonwealth officer’ for the purposes of paragraph 
180-28(7)(c). That paragraph permits a ‘HELP program Commonwealth officer’ to be specified by the Minister under subsection 180-28(8). 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.

Section 4 provides that each instrument that is specified in Schedule 1 to the Amending Instrument is amended or repealed as set out in the applicable items in the Schedule, and any other item in the Schedule has effect according to its terms. Schedule 1 sets out the amendments being made to the Original Instrument.

Schedule 1 - Amendments

Item 1

Item 1 amends section 3 of the Original Instrument by omitting “(the Act)” and substituting “(the Act)”. This is an editorial change that merely emphasises these words to indicate that they are a definition.  

Item 2

Item 2 repeals and replaces section 4 of the Original instrument. The effect of this amendment is to add two additional classes of Commonwealth officer that are specified to be ‘HELP program Commonwealth officers’ for the purposes of paragraph 180-28(7)(c) of the Act.

The first new class of HELP program Commonwealth officers is ‘Commonwealth officers engaged by the Department for the purposes set out in subsection 180-28(5) of the Act’ (new paragraph 4(1)(c)).

The second new class of HELP program Commonwealth officer is ‘taxation officers’ performing functions for the purposes set out in subsection 180-28(5) of the Act (new paragraph 4(1)(d)). New subsection 4(2) defines taxation officer for the purposes of new subsection 4(1). The term captures a Commonwealth officer who is a ‘taxation officer’ within the meaning given by section 355‑30 of Schedule 1 to the Taxation Administration Act 1953. It also captures a Commonwealth officer to whom Division 355 of Schedule 1 to the Taxation Administration Act 1953 applies due to the operation of section 355-15 of that Schedule.

The two new classes of Commonwealth officers included in new section 4 will capture APS employees in the Department and the ATO who are involved in the development, use and analysis of information in the HELP debtor and earnings database, including in the development and administration of the HELP program. They will also extend to persons who, although not holding office under, or employed by, the Commonwealth, have been engaged by the Department or the ATO to perform services for or on behalf of the Commonwealth. This captures certain contactors performing services for the Department and the ATO who are involved in the development, maintenance, and use of the HELP debtor and earnings database and administration of the HELP program.

Item 2 also maintains the existing specifications in the Original Instrument which specifies the AGA and Commonwealth officers employed by the Office of the AGA as HELP program Commonwealth officers (new paragraphs 4(1)(a)-(b)).

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

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

Higher Education (HELP Program Commonwealth Officers) Amendment Instrument (No. 1) 2017

The Higher Education (HELP Program Commonwealth Officers) Amendment Instrument (No. 1) 2017 (the Amending 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 Amending Instrument

The Amending Instrument allows certain persons to be specified as ‘HELP program Commonwealth officers’ for the purposes of section 180-28 of the Higher Education Support Act 2003 (the Act), in addition to those already specified in the Higher Education (HELP Program Commonwealth Officers) Instrument 2017 (Original Instrument). This will allow those persons to use and disclose certain types of information obtained or created for the purposes of the Act and the VET Student Loans Act 2016 (VSL Act), collectively defined as Higher Education Support Act information (HESA information). The use and disclosure of HESA information under section 180-28 of the Act is limited to the purposes specified in subsection 180-28(5) of the Act, these being the development of the HELP program, or the administration or future administration of the Higher Education Loan Program (HELP program), including by policy formation, financial planning and projection, program design and conducting research. It is also limited by the definition of the ‘HELP program’ in subsection 180-28(6) of the Act, which describes the HELP program as consisting of grants to higher education providers under Part 2-2 of the Act; assistance provided to students under Chapter 3 or Schedule 1A to the Act or the VSL Act; and repayment of debts under Chapter 4 incurred in relation to that assistance.

Human rights implications

Right to Privacy

The Amending Instrument engages the right to privacy contained in Article 17 of the International Covenant on Civil and Political Rights (ICCPR). Article 17 prohibits unlawful or arbitrary interferences with a person's privacy. It provides that persons have the right to the protection of the law against each interference. An interference with privacy will not be arbitrary if it is consistent with the provisions, aims and objectives of the ICCPR and is reasonable in the circumstances. 

The right to privacy may be subject to permissible limitations where those limitations are provided by law and are non-arbitrary. In order for limitations not to be arbitrary, such limitations must be aimed at a legitimate objective and be reasonable, necessary and proportionate to that objective.

The Amending Instrument engages the right to privacy contained in Article 17 of the ICCPR because it enables specified persons to use and disclose certain HESA information, which may relevantly extend to personal information (paragraphs 180‑5(a) and (b) of the Act).

This measure could be regarded as limiting a person’s right to privacy to the extent that it expands the category of specified officers that are authorised to use and disclose HESA information for the purposes specified in subsection 180-28(5) of the Act. However, the use and disclosure of HESA information is confined to the specific purposes outlined in that subsection and all parties with access to HESA information and related data are required to use appropriate safeguards to ensure the confidentiality of this information. In addition, the use and disclosure of personal information is protected under Australian law and the Amending Instrument does not seek to affect or restrict any of the existing protections. 

While the Original Instrument is being amended to specify Commonwealth officers engaged by the Department of Education and Training (the Department) or the Australian Taxation Officer (ATO) as ‘HELP program Commonwealth officers’, not all of these officers will be accessing HESA information. Rather, administrative measures will be put in place to ensure that the use and disclosure of HESA information under subsections 180-28(1) and (3) of the Act will be limited to those employees and contractors of the Department and the ATO who are exercising functions identified in subsection 180-28(5) of the Act. However, the additional classes of Commonwealth officers specified as ‘HELP program Commonwealth officers’ must be sufficiently broad so as to capture the various employees and contractors within these agencies that need to perform these functions from time to time (including at different Australian Public Service (APS) classifications). 

Various officers from the Department, the Australian Government Actuary (AGA), and the ATO are required to use and disclose HESA information for the purpose of developing and maintaining a HELP debtor and earnings database. The final database, which links data from all three agencies, will be stored on the Department’s systems. The HELP debtor and earnings database contains de‑identified information on HELP debtors, including demographic, educational, income and occupation-related information. Information from the database will enhance the department’s ability to analyse HELP debt and debtors, including analysing differences between those who repay and those who are below the repayment threshold.

Commonwealth officers engaged by the Department and the ATO, who require specification as ‘HELP program Commonwealth officers’, are responsible for a broad range of functions across multiple areas. This necessitates the class of Commonwealth officers added by the Amending Instrument to be defined broadly. These Commonwealth officers who require specification as ‘HELP program Commonwealth officers’ are responsible for:

• developing policy, undertaking financial planning and projections, maintaining and improving program design and conducting research on the HELP program. This includes analysing and understanding characteristics of HELP debtors who do and do not repay;
• conducting research on the HELP program, including analysing and reporting on aggregate graduate earning outcomes on the Quality Indicators for Learning and Teaching website;
• undertaking detailed statistical analysis on the HELP program and, where necessary, providing outputs to those officers responsible for policy development as described above;
• conducting research and detailed statistical analysis in relation to higher education graduate outcomes;
• administering the HELP program;
• performing necessary IT functions including those relating to the development, maintenance and use of the HELP debtor and earnings database; and
• performing various roles in relation to the provision of education, taxation and AGA data for the HELP debtor and earnings database, and appropriately handling such sensitive information.

Both APS employees and contractors engaged by the Department and the ATO, will occupy positions where access to, and use of, HESA information in the HELP debtor and earnings database is required. Their functions will also require them to disclose HESA information to other HELP program Commonwealth officers.

Finally, it should be noted that ‘HELP program Commonwealth officers’ prescribed for the purposes of section 180-28 of the Act are bound by the Australian Privacy Principles (APPs) in the Privacy Act 1988 (the Privacy Act) 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. The Privacy Act requires an agency entering into a Commonwealth contract to take contractual measures to ensure that a contracted service provider for the contract does not do an act, or engage in a practice, that would breach an APP if done or engaged in by the agency (s95B(1) of the Privacy Act).

To the extent that the Amending Instrument limits the right to privacy, the measures are reasonable, necessary and proportionate and do not arbitrarily interfere with the right to privacy. Enabling the class of officers added by the Amending Instrument to use and disclose HESA information in limited circumstances is directed to the legitimate purpose of administering the HELP program. By extension, the measure serves to preserve the integrity of the HELP program by ensuring that appropriate research, financial planning and program design of the HELP program can be carried out by officers declared to be HELP program Commonwealth officers by the Minister. The Act provides for protections to ensure a person’s right to privacy is not arbitrarily interfered with. Notably, the permissible disclosure or use of HESA information is strictly circumscribed and permitted only for the legitimate objective of administering the HELP program, including through financial planning and projection, program design and broader policy development. Furtherance of this legitimate policy objective, in turn, necessitates access to HESA information by the persons specified in the Amending Instrument. There is no arbitrary interference with the right to privacy as HESA information is accessible in defined circumstances and only by ‘HELP program Commonwealth officers’ who will be specified by the Minister by legislative instrument.

The Amending Instrument is compatible with the right to Privacy.

Right to Education

The Amending Instrument also engages the right to education contained in Article 13 of the International Covenant on Economic, Social and Cultural Rights. Article 13(2)(c) recognises that for the full realisation of the right to education, ‘higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means…’.

By ensuring that the class of persons inserted into the Original Instrument by the Amending Instrument are able to access and disclose HESA information to assist in the development, maintenance and use of the HELP debtor and earnings database, the quality and breadth of HELP data sets will be concurrently enhanced. Access to improved data supports the integrity and sustainability of the student loans scheme by ensuring its continuous improvement through more robust data metrics for ongoing review, assessment and administration of the program. The inclusion of additional persons who are involved in the development, maintenance and use of the HESA information in the HELP debtor and earnings database as ‘HELP program Commonwealth officers’, supports the broader ability to receive, use and analyse improved data on the HELP program scheme, ensure its efficacy and assist in its current and future administration. This, in turn, supports and promotes the broader objective of properly oversighted and accessible higher education for all.

The Amending Instrument is compatible with the Right to Education.

Conclusion

The Amending Instrument is compatible with human rights. To the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.