EXPLANATORY STATEMENT

Issued by the authority of the Minister for Education

Higher Education Support Act 2003

Higher Education Support Legislation Amendment (Disclosure of Information to Certain Agencies) Instrument 2026

AUTHORITY

Section 238-10 of the Higher Education Support Act 2003 (the Act) provides that the Minister may, by legislative instrument, make Guidelines to, amongst other things, provide for matters necessary or convenient to be provided in order to carry out, or give effect to, certain provisions in the Act. Subsection 180-25(4) of 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), which provides that the Secretary of the Department of Education may disclose Higher Education Support Act information (HESA information) to a person 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 Support (Administration) Guidelines 2022 (the Administration Guidelines) and Higher Education (Disclosure of Information to Other Bodies) Determination 2023 (Disclosure of Information Determination) made by the Higher Education Support Legislation Amendment (Disclosure of Information to Certain Agencies) Instrument 2026 (the Amendment Instrument) rely on this provision.

PURPOSE AND OPERATION

The purpose of the Amendment Instrument is to:

• amend the Administration Guidelines, for the purposes of paragraph 180-23(2)(d) of the Act, to specify legislation administered by additional Commonwealth government agencies to which information can be disclosed under subsection 180-23(2) of the Act, and
• remove reference to the Australian Institute of Health and Welfare (AIHW) in the Disclosure of Information Determination, made under paragraph 180-25(4) of the Act, since it is no longer necessary to specify the AIHW due to the amendments to the Administration Guidelines.

Subsection 180-23(1) of the Act provides that the Secretary of the Department of Education (department) may disclose HESA information to a person who is employed or engaged by an agency covered by subsection 180-23(2) for the purposes of exercising powers, or performing functions or duties, of the agency. Paragraph 180-23(2)(d) of the Act provides that an agency is covered by this authorisation provision if the agency is administered by the Minister administering, among other Acts, a law of the Commonwealth prescribed by the Administration Guidelines for the purposes of paragraph 180-23(2)(d).

The Amendment Instrument amends the Administration Guidelines to enable the Secretary to disclose HESA information to:

• The AIHW, as the agency administering the Australian Institute of Health and Welfare Act 1987
• The Australian Bureau of Statistics (ABS), as the agency administering the Census and Statistics Act 1905
• Jobs and Skills Australia (JSA), as the agency administering the Jobs and Skills Australia Act 2022
• The Office of the Commonwealth Ombudsman (in particular the National Student Ombudsman (NSO)), as the agency administering the Ombudsman Act 1976).

The AIHW already receives some HESA information under section 180-25 of the Act, as it is listed as a body or association for the purposes of paragraph 180-25(3)(d) in the Disclosure of Information Determination. However, this provision limits the use of the information for purposes of improving the provision of higher education or vocational education and training, and research relating to the provision of higher education or vocational education and training, including research relating to quality assurance and planning the provision of higher education. This currently restricts the use of HESA information to Australian Teacher Workforce Data (ATWD) which unites and links data on initial teacher education and the teacher workforce to build a national picture of Australia's teaching profession.  

Broadening the disclosure of HESA information to the AIHW is necessary to enable the AIHW to create shared national education databases for two other key projects:

• Child Wellbeing Data Asset (CWDA) to support understanding how children and young people move between government services, including welfare services directed at children.

• National Health Data Hub (NHDH) to support key insights into a person’s journey through the health system.

The disclosure of HESA information to the ABS is necessary to enhance the Person Level Integrated Data Asset (PLIDA). PLIDA is a secure data asset that contributes significant public value, by combining information on health, education, government payments, income and taxation, employment and population demographics (including the Census). Including HESA information in PLIDA significantly increases the value of this asset both for government and non-government researchers, allowing more comprehensive analysis of interdependencies between education and other socio-economic and health outcomes. 

The disclosure of HESA information to JSA is necessary to fulfill JSA’s core functions, including analysis and insights of higher education data for the establishment of skills pathways and tertiary harmonisation to meet present and future skills needs. Without HESA information, JSA will have limited ability to meet its core objectives and contribute to reforms such as those proposed as part of the Australian Universities Accord.

The Office of the Commonwealth Ombudsman has jurisdiction to deal with complaints about a higher education provider’s actions, through the NSO. As a statutory authority within the Office of the Commonwealth Ombudsman, the NSO can deal with a broad remit of issues including student safety and welfare, racism, course administration and the effectiveness of student complaints processes. The disclosure of HESA information to the NSO is necessary to enable the NSO to gather further information about the complaint, and to validate information submitted by students and/or higher education providers. As such, disclosing HESA information to the NSO enables the NSO to use the information to perform its functions and duties, such as confirming student complainant information during the investigation period. 

COMMENCEMENT

The Amendment Instrument commences on the day after it is registered on the Federal Register of Legislation.

CONSULTATION

The department consulted with JSA and the ABS about the Amendment Instrument. Both agencies are supportive of the proposal to enable disclosure of the HESA information to JSA and the ABS, noting they have requested access to this information. The department has also consulted with the AIHW and the Commonwealth Ombudsman about these amendments.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

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

Higher Education Support Legislation Amendment (Disclosure of Information to Certain Agencies) Instrument 2026

The Higher Education Support Legislation Amendment (Disclosure of Information to Certain Agencies) Instrument 2026 (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

Section 180-23 of the Higher Education Support Act 2003 (the Act) provides that the Secretary of the Department of Education (department) may disclose Higher Education Support Act information (HESA information) to a person who is employed or engaged by an agency covered by subsection 180-23(2) for the purposes of exercising powers, or performing functions or duties, of the agency. Paragraph 180-23(2)(d) of the Act provides that an agency is covered by this authorisation provision if the agency is administered by the Minister administering, among other Acts, a law of the Commonwealth prescribed by the Higher Education Support (Administration) Guidelines 2022 (the Administration Guidelines)  for the purposes of paragraph 180-23(2)(d).

The purpose of the Amendment Instrument is to:

• amend the Administration Guidelines, for the purposes of paragraph 180-23(2)(d) of the Act, to specify legislation administered by additional Commonwealth government agencies to which information can be disclosed under subsection 180-23(2) of the Act.
• remove reference to the Australian Institute of Health and Welfare (AIHW) in the Higher Education (Disclosure of Information to Other Bodies) Determination 2023, made under paragraph 180-25(4) of the Act, since it is no longer necessary to specify the AIHW due to the amendments to the Administration Guidelines.

Human rights implications

The Amendment Instrument engages the right to privacy, under Article 17 of the International Covenant on Civil and Political Rights (ICCPR), which 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 and that everyone has the right to the protection of the law against such interference or attacks.

For the interference with privacy not to be ‘arbitrary’, any interference with privacy must be in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable in the particular circumstances. Reasonableness, in this context, incorporates notions of proportionality to the end sought and necessity in the circumstances. The right to privacy can be permissibly limited in order to achieve a legitimate objective and where the limitations are lawful and not arbitrary.

The Amendment Instrument may interfere with an individual’s privacy as it authorises the Secretary to disclose HESA information to additional Commonwealth government agencies.

This authorisation is necessary to enable the agencies administering the Australian Institute of Health and Welfare Act 1987 (currently the (AIHW), the Census and Statistics Act 1905 (currently the Australian Bureau of Statistics (ABS)), the Jobs and Skills Australia Act 2022 (currently Jobs and Skills Australia (JSA)), and the Ombudsman Act 1976 (currently the Commonwealth Ombudsman) to collect and use HESA information for the purposes of exercising powers, or performing functions or duties, of those agencies.

The Privacy Act 1988 (the Privacy Act) regulates the collection, use, storage and disclosure of personal information. HESA information is also personal information within the meaning of the Privacy Act. Some HESA information may also be a ‘government related identifier’ for the purposes of Australian Privacy Principle (APP) 9 in Schedule 1 to that Act. This means that, when collecting, using and disclosing HESA information that meets these criteria, the department and the receiving agencies must comply with the APPs and the Privacy Act.

For the purposes of APP 3.1, collection of HESA information by the AIHW, the ABS, JSA, and the Commonwealth Ombudsman is reasonably necessary for, or directly related to, the relevant entity’s functions or activities.

The AIHW requires HESA information to fulfill its core functions, including analysis and insights of higher education data for the establishment of shared national education databases to:

•  build a national picture of Australia's teaching profession,
• enable a more holistic understanding of how children and young people move between government services, including welfare services directed at children and
• provide key insights into a person’s journey through the health system including information on hospital visits, prescriptions, immunisations, aged care use and death information.

These linked data systems and assets are designed to be interoperable, meaning that sharing of linked data will become streamlined and will not require the sharing of personal information. The HESA information obtained by the AIHW will be used by AIHW staff and contractors internally to perform its own functions and no identifying information will be published or further disclosed to third parties.

The ABS requires HESA information to enhance the Person Level Integrated Data Asset (PLIDA). The ABS is trusted as the accredited Integrating Authority for PLIDA. This means the ABS collects and combines the data held in PLIDA and provides authorised researchers access to PLIDA data. Information provided to authorised researchers is de-identified and does not include any personal information. Including HESA information in PLIDA significantly increases the value of this data asset both for government and non-government researchers, allowing more comprehensive analysis of interdependencies between education and other socio-economic and health outcomes. Once disclosed to the ABS, HESA information will be protected under the Census and Statistics Act 1905 which has strict controls regarding data privacy and disclosure.

JSA requires HESA information to fulfill its core functions, including analysis and insights of higher education data for the establishment of skills pathways and tertiary harmonisation to meet present and future skills needs. The HESA information obtained by JSA will be used by JSA staff and contractors internally to perform its own functions and no identifying information will be published or further disclosed to third parties.

HESA information will primarily be disclosed to the National Student Ombudsman (NSO) as enabled under section 180-23 of the Act by the Amendment Instrument. Specifically, the NSO requires HESA information to fulfill its core function of managing and investigating complaints against higher education providers across a broad remit of issues including student safety and welfare, racism, course administration and the effectiveness of student complaints processes. The disclosure of HESA information to the NSO is necessary to gather further information about the complaint, and to validate information submitted by students and/or higher education providers. As such, disclosing HESA information to the NSO enables the NSO to use the information to perform its functions or duties, such as confirming student complainant information about enrolments and fees early during the investigation period.

HESA information may also be disclosed to other parts of the Commonwealth Ombudsman where it is necessary for the purpose of exercising powers, or performing functions or duties of the Ombudsman.  

The Amendment Instrument would authorise disclosure of HESA information by the Secretary to the relevant agencies, invoking the exception in APP 6.2(b), which permits the disclosure of an individual’s personal information for a secondary purpose where the disclosure is authorised by law. The legitimate objective for the authorisation is to assist the AIHW, the ABS, JSA and the Commonwealth Ombudsman to perform their functions as described above.

The Amendment Instrument only permits the Secretary to disclose HESA information to the officials of the agencies responsible for the specified Acts. The Amendment Instrument does not displace the protections provided for personal information under the Privacy Act or equivalent State and Territory legislation. Therefore, entities that collect, use or disclose the information will also have to comply with the requirements of relevant privacy legislation.

The department is also undertaking a Privacy Impact Assessment (PIA) in relation to sharing the HESA information with the ABS for the purposes of PLIDA. PIAs are regularly undertaken by the ABS with regard to PLIDA and can be found on the ABS website.

Conclusion

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 ensures that appropriate safeguards and limitations apply to agencies that collect, use and disclose HESA information.

Minister for Education, the Hon Jason Clare MP

HIGHER EDUCATION SUPPORT LEGISLATION AMENDMENT (DISCLOSURE OF INFORMATION TO CERTAIN AGENCIES) INSTRUMENT 2026

EXPLANATION OF PROVISIONS

Section 1: Name

1.   This is a formal provision specifying the name of the instrument as the Higher Education Support Legislation Amendment (Disclosure of Information to Certain Agencies) Instrument 2026 (Amendment Instrument).

Section 2: Commencement

1.   This section specifies that the Amendment Instrument commences on the day after it is registered on the Federal Register of Legislation. 

Section 3: Authority

1.   This section provides that the Amendment Instrument is made under subsection 180-25(4) and section 238-10 of the Higher Education Support Act 2003 (the Act).

Section 4: Schedules

1.   This is a technical provision that explains that the instruments that are specified in the Schedule to the Amendment Instrument, being the Higher Education Support (Administration) Guidelines 2022 (Administration Guidelines) and Higher Education (Disclosure of Information to Other Bodies) Determination 2023, are amended as set out in the items in the Schedule concerned.

Schedule 1 – Amendments

Higher Education Support (Administration) Guidelines 2022

Item 1: After section 30

1.   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.
2.   Subsection 180-23(1) of the Act provides that the Secretary of the Department of Education (department) may disclose HESA information to a person who is employed or engaged by an agency covered by subsection 180-23(2) for the purposes of exercising powers, or performing functions or duties, of the agency. An agency covered by subsection 180-23(2) includes agencies administered by a Minister that administers a law of the Commonwealth prescribed by the Administration Guidelines for the purposes of paragraph 180-23(2)(d).
3.   Item 1 inserts new Part 9 (Disclosure of information to certain agencies) in the Administration Guidelines to prescribe laws of the Commonwealth for the purposes of paragraph 180-23(2)(d) of the Act. New section 31 in Part 9 prescribes the Australian Institute of Health and Welfare Act 1987, the Census and Statistics Act 1905, the Jobs and Skills Australia Act 2022, and the Ombudsman Act 1976, for the purposes of paragraph 180-23(2)(d) of the Act.

1.   This amendment has the effect of permitting the Secretary to disclose HESA information to a person who is employed or engaged by the Australian Institute of Health and Welfare (AIHW), the Australian Bureau of Statistics, Jobs and Skills Australia, or the Commonwealth Ombudsman for the purposes of exercising powers, or performing functions or duties, of those agencies.

Higher Education (Disclosure of Information to Other Bodies) Determination 2023

Item 2: Paragraph 6(f)

1.   Subsection 180-25(1) of the Act enables the Secretary to disclose HESA information to certain persons listed in subsection 180-25(3), for the purposes of improving the provision of higher education or vocational education and training or related research. Under paragraph 180-25(3)(d) of the Act, the persons listed in subsection 180­-25(3) include persons employed or engaged by a body or association determined by the Minister by legislative instrument under subsection 180-25(4).

1.   This item repeals paragraph 6(f) from the Higher Education (Disclosure of Information to Other Bodies) Determination 2023, which lists the AIHW as a body or association for which HESA information can be disclosed for the purposes of paragraph 180-25(3)(d) of the Act.

1.   It is no longer necessary to list the AIHW as a body or association for which HESA information can be disclosed, for the purposes of paragraph 180-25(3)(d) of the Act, because the Amendment Instrument amends the Administration Guidelines to permit the Secretary to give information to the AIHW for a wider range of purposes under section 180-23 of the Act.