EXPLANATORY STATEMENT
Issued by the authority of the Minister for Employment, Workforce, Skills, Small and Family Business
Higher Education Support Act 2003
Higher Education (HELP Program Commonwealth Officers) Amendment (Specifying University of Canberra Officers as HELP Program Commonwealth Officers) Instrument 2022
Authority
Subsection 180-28(8) of the Higher Education Support Act 2003 (‘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 Higher Education Loan Program (‘HELP Program’) Commonwealth officer for the purposes of paragraph 180-28(7)(c).
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.
Purpose and operation
The Higher Education (HELP Program Commonwealth Officers) Amendment (Specifying University of Canberra Officers as HELP Program Commonwealth Officers) Instrument
2022 (‘the Amending Instrument’) amends the Higher Education (HELP Program Commonwealth Officers) Instrument 2017 (‘the Principal Instrument’). The Principal Instrument specifies particular Commonwealth officers, such as those employed by the Australian Government Actuary (‘AGA’), are ‘HELP program Commonwealth officers’ for the purposes of paragraph 180-28(7)(c) of 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 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 Principal Instrument to specify that employees of the University of Canberra, a body constituted under the University of Canberra Act 1989 (ACT), who are engaged by the Commonwealth to perform functions set out in subsection 180-28(5) of the Act, are also HELP program Commonwealth officers.
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 policy formation, financial planning and projection, program design and conducting research. In particular, these persons from the University of Canberra, notably the National Centre for Social and Economic Modelling (‘NATSEM’) within the University of Canberra will be providing specialist technical expertise in research and data analytics to assist in the development of enhanced modelling capability of the HELP program. This modelling and analysis capacity will better inform the Department of Education, Skills and Employment’s (‘the Department’) higher education policy development.
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’. Section 180-28 was inserted into the Act 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 the 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 to mean: the Secretary of the Department administering the Act (paragraph180-28(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)’(paragraph180-28(7)(c)).
Subsection 180-28(8) of the Act enables the Minister to, 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), enabling 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 who is in the Service of any authority or body constituted by or under a law of the Commonwealth or of a Territory (other than the Northern Territory) (paragraph 179‑15(2)(d) of the Act).
The University of Canberra employees specified through the amendments made by this instrument are in the Service of the University of Canberra, which is a body established by a law of the Australian Capital Territory (the University of Canberra Act 1989 (ACT) for this purpose
Commencement
The Amendment instrument commences on the day after the instrument is registered on the Federal Register of Legislation.
Regulatory Impact Statement
The Office of Best Practice Regulation has advised that a Regulatory Impact Statement is not required (OBPR reference: OBPR22-01830).
Consultation
The Department has consulted with staff from NATSEM at the University of Canberra to determine the data requirements for the projects that they will be assisting the Department with. Based on this assessment it was determined that access to the HELP program data is required to undertake this work effectively.
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 (Specifying University of Canberra Officers as HELP Program Commonwealth Officers) Instrument 2022
The Higher Education (HELP Program Commonwealth Officers) Amendment (Specifying University of Canberra Officers as HELP Program Commonwealth Officers) Instrument 2022 (‘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 (‘Principal Instrument’). This will allow employees of the University of Canberra engaged by the Commonwealth to perform functions set out in subsection 180-28(5) of the Act. 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. The use and disclosure of HESA information 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)).
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 Principal Instrument is being amended to specify employees of the University of Canberra engaged by the Commonwealth to use HESA information for the purposes set out in subsection 180-28(5) of the Act, not all employees of the University of Canberra will be accessing HESA information. Rather, administrative measures will be put in place to ensure that the use and disclosure of HESA information will be strictly limited to those University of Canberra employees contracted by the Commonwealth to perform services on behalf of the Commonwealth (and are therefore Commonwealth officers as set out in subsection 179-15(2) of the 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 this confined class of officers to be 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. Further, 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 Principal 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 Amending Instrument is compatible with the Right to Education.
Conclusion
This Legislative Instrument is compatible with human rights. To the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.
Minister for Employment, Workforce, Skills, Small and Family Business, Stuart Robert
Higher Education (HELP Program Commonwealth Officers) Amendment (Specifying University of Canberra Officers as HELP Program Commonwealth Officers) Instrument 2022
Explanation of provisions
Section 1: Name
1. This is a formal provision specifying that the title of the Amending Instrument is the Higher Education (HELP Program Commonwealth Officers) Amendment (Specifying University of Canberra Officers as HELP Program Commonwealth Officers) Instrument 2022.
Section 2: Commencement
2. This section provides that the Amending Instrument commences on the day after it is registered on the Federal Register of Legislation.
Section 3: Authority
3. This section provides that the Amending Instrument is made under the authority of subsection 180-28(8) of the Higher Education Support Act 2003. 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).
Section 4: Schedule
4. This section provides that the instrument specified in the Schedule to this instrument is amended as set out in the applicable items in the Schedule.
Schedule 1 - Amendments
Higher Education (HELP Program Commonwealth Officers) Instrument 2017
Item 1: Paragraphs 4(1)(c) and (d)
1. Item 1 is a technical amendment (to move the word ‘and’ after the new penultimate term in the list in subsection 4(1) of the Original Instrument), required because of the new paragraph added by item 2.
Item 2: After paragraph 4(1)(d)
2. Item 2 inserts a new paragraph (e) into subsection 4(1) of the Original Instrument to specify employees of the University of Canberra, a body constituted under the University of Canberra Act 1989 (ACT), who are engaged by the Commonwealth to perform functions set out in subsection 180-28(5) of the Act are HELP program Commonwealth officers.
3. This will allow University of Canberra employees engaged by the Commonwealth to provide specialist expertise in research and data analytics and to assist in the development of enhanced modelling capability.