EXPLANATORY STATEMENT
Social Security (Administration) Act 1999
Social Security (Administration) (Indigenous Student Assistance Scholarships – Protected Information) Instrument 2016
Purpose
Subsection 23(1) of the Social Security Act 1991 defines protected information as generally information about a person that is obtained by an officer under the social security law, and that information is held in the records of the Department of Social Services or the Department of Human Services.
Paragraph 202(1)(da) of the Social Security (Administration) Act 1999 (the Act) allows a person to obtain protected information if the information is obtained for the purposes of administering scholarships:
(i) provided for under Part 2-2A of the Higher Education Support Act 2003 (Higher Education Support Act); and
(ii) specified by the Secretary under subsection 202(2DA).
Paragraph 202(2)(daaa) of the Act allows a person to make a record of, disclose or otherwise use protected information, if the record, disclosure, or use of the information by the person is made for the purposes of administering scholarships:
(i) provided for under Part 2-2A of the Higher Education Support Act; and
(ii) specified by the Secretary under subsection 202(2DA).
Subsection 202(2DA) of the Act provides that the Secretary of the Department of Social Services may, by legislative instrument, specify a scholarship for the purposes of subparagraphs 202(1)(da)(ii) or 202(2)(daaa)(ii) of the Act.
This instrument specifies certain scholarships provided for under Part 2-2A of the Higher Education Support Act. The effect of this instrument is that protected information may be obtained, recorded, disclosed or used for the purposes of administering the specified scholarships.
Providing for these scholarships to be specified by the Secretary in a legislative instrument, rather than prescribing scholarships in primary legislation, gives the Secretary scope to specify other scholarships that may become available in the future, as appropriate.
Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make an instrument of a legislative character, the power shall be construed as including a power exercisable in the like manner and subject to the like conditions to repeal, rescind, revoke, amend, or vary any such instrument.
Background
Part 2-2A of the Higher Education Support Act, as inserted by Schedule 1 of the Higher Education Support Legislation Amendment (2016 Measures No. 1) Act 2016, provides for grants to be paid to higher education providers to assist Indigenous students.
The Higher Education Support Legislation Amendment (2016 Measures No. 1) Act 2016 inserted subsections 202(1)(da), 202(2)(daaa) and 202(2DA) to provide a mechanism to ensure that a person can obtain, record, disclose and use protected information for the purposes of administering scholarships under Part 2-2A. When utilised, this mechanism ensures that rules about protected information are the same for scholarships under Part 2-2A as for scholarships under Part 2-4 of the Higher Education Support Act.
This instrument is one of a suite of instruments implementing the Indigenous Student Success in Higher Education 2016 Budget measure. This measure consolidates existing funding for Indigenous higher education under Part 2-2A of the Higher Education Support Act.
Regulatory Impact Statement
The Office of Best Practice Regulation has advised that the proposal appears machinery in nature and is not likely to have a regulatory impact on individuals, businesses or community organisations. As these matters will not be considered by Cabinet, a Regulation Impact Statement (RIS) is not required to be prepared. (OBPR reference: 21570)
Commencement
This instrument commences in accordance with subsection 202(5) of the Act. Under subsection 202(5), the instrument does not take effect until the end of the period in which it could be disallowed in either House of the Parliament.
Consultation
Consultation was undertaken with the Department of the Prime Minister and Cabinet, which administers Part 2-2A of the Higher Education Support Act, and with the Department of Human Services given there may be implications for service delivery.
Explanation of provisions
Item 1 sets out the name of the instrument, being the Social Security (Administration) (Indigenous Student Assistance Scholarships – Protected Information) Instrument 2016.
Subitem 2(1) provides for a 3 column table setting out commencement information for this instrument. Each provision of the instrument specified in column 1 of the table commences (or is taken to have commenced) in accordance with column 2 of the table and any other statement in column 2 has effect according to its terms.
The table has the effect of providing that the whole of the instrument commences in accordance with subsection 202(5) of the Act. This means that for the purposes of subsection 12(1) of the Legislation Act 2003, this instrument does not commence until the end of the period in which it could be disallowed in either House of the Parliament.
The note provides that the commencement information only relates to the provisions of the instrument as originally made. It will not be amended to deal with any later amendments to this instrument.
Subitem 2(2) provides that column 3 of the table is for additional information which may be added to or edited in any published version of the instrument but that information is not part of the instrument.
Item 3 specifies that the instrument is made under the authority of subsection 202(2DA) of the Act.
Item 4 defines key terms contained in this instrument.
Subitem 5(1) provides that the Indigenous Commonwealth Accommodation Scholarship and the Indigenous Commonwealth Education Costs Scholarship are specified for the purposes of subparagraph 202(1)(da)(ii) of the Act.
Specifying these scholarships allows a person to obtain protected information if the information is obtained for the purposes of administering these scholarships.
Subitem 5(2) provides that the Indigenous Commonwealth Accommodation Scholarship and the Indigenous Commonwealth Education Costs Scholarship are specified for the purposes of subparagraph 202(2)(daaa)(ii) of the Act.
Specifying these scholarships allows a person to make a record, disclose or otherwise use protected information if the record, disclosure, or use made of the information by the person is made for the purposes of the administration of these scholarships.
The Indigenous Commonwealth Accommodation Scholarship and the Indigenous Commonwealth Education Costs Scholarship are provided for by grants under Part 2-2A of the Higher Education Support Act and are dealt with in the Indigenous Student Assistance Grants Guidelines. These Guidelines are made by the Minister for Indigenous Affairs under section 238-10 of the Higher Education Support Act.
Specifying these scholarships ensures that the arrangements pertaining to specified scholarships provided for under Part 2-2A are consistent with arrangements pertaining to scholarships provided for under Part 2-4 of the Higher Education Support Act in relation to the management of protected information.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
SOCIAL SECURITY (ADMINISTRATION) (INDIGENOUS STUDENT ASSISTANCE SCHOLARSHIPS – PROTECTED INFORMATION) INSTRUMENT 2016
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
This legislative instrument specifies certain scholarships provided for by grants under
Part 2-2A of the Higher Education Support Act 2003 (Higher Education Support Act). The effect is that a person may obtain, record disclose or use protected information for the purpose of administering the specified scholarships. Protected information is, generally, information about a person that is obtained by an officer under the social security law held in the records of the Department of Social Services or the Department of Human Services (section 23, Social Security Act 1991).
This instrument is one of a suite of instruments implementing the Indigenous Student Success in Higher Education 2016 Budget measure. This measure consolidates existing funding for Indigenous higher education under Part 2-2A of the Higher Education Support Act.
Human rights implications
This instrument engages the prohibition on interference with privacy under Article 17 of the International Covenant on Civil and Political Rights (ICCPR), and the right to equality and non-discrimination under Articles 2, 16, and 26 of the ICCPR, Article 2 of the International Covenant on Economic Social and Cultural Rights (ICESCR), and Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).
Prohibition on interference with privacy
The prohibition on interference with privacy is contained in Article 17 of the ICCPR, which prohibits the unlawful or arbitrary interference with a person’s privacy. Article 17 provides that all persons have the right to the protection of the law against such interference.
While the United Nations Human Rights Committee states that an arbitrary interference with privacy extends to interference provided for under the law, it also provides that where the interference is reasonable in the circumstances and in accordance with the aims and objectives of the ICCPR, the interference will not be considered arbitrary.
By specifying certain scholarships in this instrument, a person may obtain, record, disclose or use protected information for the purposes of administering those specified scholarships.
To the extent that the effect of this instrument limits the right to privacy by enabling dealing with protected information, the limitations are reasonable, necessary and proportionate. Dealing with protected information for the purposes of administering the specified scholarships is necessary to pursue the legitimate objective of ensuring that these scholarships can be managed effectively.
This arrangement is no wider than necessary as it is consistent with existing arrangements in the Social Security (Administration) Act 1999 for scholarships provided for under Part 2‑4 of the Higher Education Support Act. The purposes by which protected information may be obtained, recorded, disclosed or used are clearly specified at paragraphs 202(1)(da) and 202(2)(daaa) of the Social Security (Administration) Act 1999 to ensure a person’s privacy is not arbitrarily interfered with.
Whilst protected information may be obtained, disclosed, recorded or used, section 180-25 of the Higher Education Support Act protects the use and disclosure of personal information (within the meaning of section 179-5 of the Higher Education Support Act). Section 180-25 makes an offence for a person that receives information about grants under Part 2-2A to use or disclose information that is personal information unless it is for a purpose permitted under the Higher Education Support Act.
This instrument is compatible with the prohibition on interference with privacy.
Right to equality and non-discrimination
The right to equality and non-discrimination under Articles 2, 16, and 26 of the ICCPR, Article 2 of the ICESCR, and Article 5 of the ICERD, recognises that all human beings have the right to be treated equally and to not be discriminated against.
This instrument promotes the right to equality and non-discrimination by ensuring that rules about protected information are the same for Indigenous persons in receipt of scholarships under Part 2‑2A of the Higher Education Support Act as they are for non-Indigenous persons in receipt of scholarships under Part 2-4 of the Higher Education Support Act.
Conclusion
The instrument is compatible with human rights.
Cath Halbert, Group Manager, Payments Policy Group, as delegate of the Secretary of the Department of Social Services