EXPLANATORY STATEMENT
A determination under subsection 180-25(4) of the Higher Education Support Act 2003
Higher Education (Disclosure of Information to Other Bodies) Determination 2012.
Issued by the authority of the Minister for Tertiary Education, Skills, Science and Research.
Subject: Higher Education Support Act 2003
Higher Education (Disclosure of Information to Other Bodies) Determination 2012.
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 lists the persons to whom Higher Education Support Act information (HESA information) may be disclosed under the provisions of subsection 180-25(1).
Purpose and operation
The purpose of this instrument is to enable the Secretary to disclose HESA information to officers of the specified bodies and associations. Division 180 of the Act authorises the disclosure and use of HESA information for certain purposes.
HESA information is defined to include personal information (as defined in by section 179-5 of the Act), VET Personal information and information that is obtained or created by a Commonwealth Officer as a result of a survey of the kind referred to in section 180-30 of the Act. It will also include any other information obtained or created by a Commonwealth officer for the purposes of the Act.
Subsection 180-25(1) of the Act authorises disclosure of HESA information to officers of certain bodies and associations for the purposes of:
(a) improving the provision of higher education or vocational education and training;
(b) research relating to the provision of higher education or vocational education and training, including research relating to:
(i) quality assurance; or
(ii) planning the provision of higher education or vocational education and training.
Paragraph 180-25(3)(d) provides that persons to whom HESA information may be disclosed for these purposes includes a person (an officer) who is employed or engaged by a body or association determined by the Minister. This instrument gives effect to paragraph 180-25(3)(d) by determining certain bodies and associations.
Background
The Department has received a high volume of requests from higher education providers, higher education groups, the Tertiary Education Quality and Standards Agency (TEQSA) and state and territory governments for student and staff data at the unit record level (a level at which an individual may be identified). Data at this level allows more accurate assessment and monitoring of the impact of the Australian Government’s higher education demand driven funding reforms for planning and quality assurance purposes.
The Act was amended in October 2012 (by the Higher Education Support Amendment (Maximum Payment Amounts and Other Measures) Bill 2012 (the Bill)) to allow the disclosure of HESA information to specified persons for specified purposes. Prior to the passage of this amendment, the Department was prevented from disclosing HESA information by the Privacy Act 1988 (Privacy Act). This is because HESA information includes personal information, the use and disclosure of which is protected by the Privacy Act. The Act as amended retains strong protections for individuals’ privacy.
Commencement
This legislative instrument shall come into effect on the day after it is registered on the Federal Register of Legislative Instruments.
Consultation
The Department consulted widely during drafting of the Bill. These consultations made explicit the purpose and function of this instrument and no objections were raised with the Department regarding this aspect of the legislation. Stakeholders with which the Department has consulted include TEQSA, Universities Australia, the Attorney General’s Department and the Office of the Australian Information Commissioner (OAIC).
As a result of recommendations from the Attorney General’s Department and the OAIC, changes were made to further protect the personal information of the students. The changes to the Bill were to:
- clarify the types of information governed by the amendments;
- clarify the uses and purposes for which personal information may be disclosed, and ensure that all disclosure and use of personal information must be linked to a permitted purpose;
- include offence provisions for breaches of the Act’s privacy provisions; and
- ensure that Commonwealth Officers have authority to both use and disclose personal information for certain purposes.
Detail of provisions
Paragraph 1 provides that the instrument may be cited as the Higher Education (Disclosure of Information to Other Bodies) Determination 2012.
Paragraph 2 states that authority for the instrument is provided for under subsection 180-25(4) of the Act.
Paragraph 3 stipulates that the instrument commences on the day after it is registered on the Federal Register of Legislative Instruments.
Paragraph 4 lists the bodies which have been determined for the purposes of paragraph 180-25(3)(d) of the Act. The bodies are:
a) Universities Australia [ABN 53 008 502 930];
b) the Council of Private Higher Education Incorporated [ABN 23 472 698 119]
c) the Australian Council for Private Education and Training [ABN 63 054 953 758]; and
d) the following Tertiary Admissions Centres:
i) Queensland Tertiary Admissions Centre Limited [ABN 28 050 542 633]
ii) South Australian Tertiary Admissions Centre [ABN 55 682 725 032]
iii) Tertiary Institutions Service Centre Inc [ABN 24 830 500 871]
iv) Universities Admissions Centre (NSW & ACT) Pty Limited [ABN 19 070 055 935]
v) Victorian Tertiary Admissions Centre [ABN 83 837 024 255]
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
A determination under subsection 180-25(4) of the Higher Education Support Act 2003
This Legislative 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 legislative instrument determines the bodies to which the Secretary may disclose HESA information (as defined by the Higher Education Support Act 2003 (the Act) and which may include personal information) for the purposes of the Division 180 of the Act. It will permit access to personal information in unit record data about student enrolments, student load, course completions and staff.
The purpose of the legislative instrument is to give effect to sections of the Act, which allow access to information to be able to assess the impact of demand driven funding reforms.
Human rights implications
The legislative instrument engages the following human right:
Prohibition on interference with privacy and attacks on reputation
The disclosure of personal information engages Article 17 of the International Covenant on Civil and Political Rights (ICCPR). Article 17 prohibits unlawful or arbitrary interferences with a person’s privacy, family, home and correspondence. It also prohibits unlawful attacks on a person’s reputation. It provides that persons have the right to the protection of the law against such interference or attacks.
The legislative instrument may limit the right to privacy as it will allow the Secretary to provide for a wider disclosure of certain personal information, responding to requests by university groupings and other specified bodies for access to unit record data to assess the impact of demand driven funding reforms for planning and quality assurance purposes.
The legislative instrument will allow access to unit record data, being information about student enrolments, student load, course completions and staff, to those bodies determined by the Minister under the legislative instrument.
There are legitimate objectives for the proposal as the disclosure of personal information is for the purposes of improving the provision of higher education or vocational education and training and for research relating to the provision of higher education and training, including research relating to quality assurance or planning the provision of higher education or vocational education and training (a “permitted purpose”).
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. The Bill provides that a person commits an offence if the person discloses personal information or VET personal information and the disclosure was not for a permitted purpose or was to a person who is not a member of staff within the same body. The penalty for committing such an offence is imprisonment for 2 years.
Conclusion
This legislative instrument is compatible with human rights because, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.