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Higher
Education Support Amendment (Further Streamlining and Other Measures)
Bill 2013
Introduced into the House of
Representatives on 14 February 2013
Portfolio: Tertiary Education,
Skills, Science and Research
Summary of
committee view
1.1
The committee
seeks further clarification as to how students enrolled with education providers
who have their approval revoked will be protected and seeks further details of
the types of information that might be sought from tertiary education
regulators by the Minister and what safeguards are in place, to protect the
right to privacy.
Overview
1.2
This bill seeks
to amend the Higher Education Support Act 2003 to implement
recommendations arising from the Post Implementation Review of the VET
FEE-HELP Scheme Final Report September 2011. In particular, the bill:
- requires the
Minister to revoke a body's approval as a higher education or vocational,
education and training (VET) provider on specified grounds, including if:
- the body is no
longer registered;
- a winding up
order has been made against the body;
- enables an
educational provider's approval to be amended to take account of a change in
the business entity name;
- enables the
Minister to give a compliance notice to a higher education or VET provider if
satisfied that the provider may not be complying with relevant legislation,
guidelines or conditions. Failure to comply with a notice is a breach of a
quality and accountability requirement which may lead to suspension or
revocation of the provider's approval;
- updates the
calculation of the Higher Education Loan Program (HELP) repayment thresholds to
take account of the new biannual publication schedule of average weekly
earnings data; and
- enhances the
ability of the Minister to seek information from the relevant tertiary
regulator in relation to a higher education or VET provider for the purposes of
administering or enforcing compliance with relevant legislation, guidelines or
conditions.
Compatibility with human
rights
1.3
The bill is
accompanied by a self-contained statement of compatibility which identifies the
two rights principally engaged by the bill; the right to education and the
right to privacy.
Right
to education
1.4
The statement of
compatibility notes that the bill promotes the right to education guaranteed by
article 13 of the International
Covenant on Economic, Social and Cultural Rights (ICESCR) as it improves
procedures for ensuring that higher education and VET providers continue to
provide education that corresponds to recognised standards. In particular, the
statement provides that the bill enables the government 'to identify and
respond to low quality providers in a timely manner, thereby safeguarding
continued access to high quality education from higher education providers and
VET providers.’[1]
To this extent the bill may be regarded as contributing to the fulfilment of
the obligation under article 12(2)(c) and (d) of the ICECSR to promote
continued access to higher education and technical and vocational education.
1.5
The bill
includes a power to revoke a provider’s registration. This could have an
adverse impact on students enrolled in programs offered by that provider, which
may result in the student not being able to continue their studies at that
institution. The statement of compatibility notes:
In circumstances
where a provider’s approval is revoked, to ensure the provider’s students can
continue their course of education without interruption, the provider’s
existing students will be protected by tuition assurance requirements outlined
in the Act. Under tuition assurance, students will be placed in a comparable
course, or provided with a refund of any upfront tuition fees they may have
paid.[2]
1.6
However, the
statement of compatibility does not refer to the specific provisions of the Higher Education Support Act 2003 which would bring this result
about. It appears that the relevant provisions include section 36-24A(2) of
that Act. The committee considers it important to ensure that the impact on the
educational opportunities of students enrolled in programs with providers that
are subject to compliance action or whose registration is revoked be minimised
as far as possible. Although the statement of compatibility states in general
terms that this will occur, it does not explain in detail how the provisions of
the Higher Education Support Act 2003 as amended by the bill would
bring about this result.
1.7
The
committee intends to write to the Minister to seek clarification as to how
students enrolled with providers who have their approval revoked will be
protected (including how the refund of tuition fees will be ensured when a
winding-up order has been made against a provider which has led to the
revocation of its approval as a higher education or VET provider).
Protection
against arbitrary interference with privacy
1.8
The statement of
compatibility also notes that the bill engages article 17 of the International
Covenant on Civil and Political Rights (ICCPR). It states:
The Bill
protects against arbitrary interference of privacy by ensuring that information
able to be disclosed and used under the Act is for specified purposes only. In
particular, this measure allows the Minister to seek information from the
relevant tertiary education regulators for the limited purposes of
administering and enforcing providers’ compliance with the Act, the
regulations, the guidelines and any conditions imposed on a provider’s
approval. These amendments will enable the Government to make more timely and
accurate assessments of a provider’s compliance status, thereby safeguarding
the continued education of students who have undertaken courses of education
with providers approved under the Act.
The
permitted uses of information able to be sought from the relevant tertiary
education regulators will improve decision-making around provider application
and administrative compliance for FEE-HELP and VET FEE-HELP.[3]
1.9
However, the
statement of compatibility does not provide any detail as to which provisions
of the bill it is referring to and what information it relates to. The
committee assumes this refers to the amendments in Schedule 5 to the bill which
introduce a new section 182-1 into the Higher Education Support Act 2003
to allow the Minister to seek information relating to a higher education or VET
provider from the regulator for the purposes of administering or enforcing
compliance with the Act, guidelines or a condition imposed on the provider. The
explanatory memorandum states that these amendments amalgamate eight existing
provisions into one, and simply states that it allows the Minister to 'seek
information relating to a higher education or VET provider'.[4]
1.10
The committee
assumes that the type of information that might be sought might include details
about student progress, complaints made by students and other similar matters.
1.11
The
committee intends to write to the Minister to seek further details of the types
of information that might be sought under the amended legislation which would
be covered by article 17 of the ICCPR, and what safeguards are in place,
whether under the Higher Education Support Act 2003 or other relevant
legislation, to protect the right to privacy.
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